Sanders v. Erwin

• Decision Date: 15 October 1887
• Citation: 5 S.W. 703,49 Ark. 376
• Parties: SAUNDERS v. ERWIN
• Court: Arkansas Supreme Court

5 S.W. 703

49 Ark. 376

SAUNDERS v. ERWIN

Supreme Court of Arkansas

October 15, 1887

APPEAL from Prairie Circuit Court, M. T. SANDERS, Judge.

Judgment affirmed.

Sam. W Williams, Sol F. Clark and Geo. Sibley for appellants.

1. The assessment list of 1882 is discredited by alterations which would throw the burden of proof upon those who claimed the benefit of it to explain these charges. 30 Ark. 285; Abbott Trial Ev., 49; id., p. 538. An assessment book where fraud appears, should be excluded in toto. Patton v Coates, 41 Ark. 111; Brightly Lead Cas. on Elec., 493; notes to id., 501.

2. There was no law prior to 1883, and subsequent to the adoption of the Constitution of 1874, which authorized the Assessor to return any list of poll-tax as such, and sec 1165 Mansf. Dig., had nothing to support it. Art. 14, sec. 3, Const.; Acts 1874-5, p. 222; Acts 1875, p. 19; Acts 1877, p. 46; Acts 1879, p. 24. None of these require a list for poll-tax, returned by the Assessor, and therefore this case must be determined by the vote actually cast.

Taking the assessment rolls of 1881 and 1882, counsel present tabulated statements showing that, after deducting names improperly added, under ruling in 45 Ark. 400, that the majority was for change.

3. The Legislature had no power to take from or add to the provisions of the Constitution in reference to the removal of county seats. The cases in 45 Ark. 400, should be reconsidered, in so far as they held that the Legislature might add conditions and qualifications. Cite in support of their position, Cooley Const. Lim., p. 213; Const., art. 13, sec. 3; Broom's Legal Max., 581; Cooley Const. Lim., 598 and 614, et seq.; Potter's Dwarris on St. and Const., 64-66, 221; 1 Sneed, 692; 47 Ill. 163; 48 id., 263; Angell & Ames Corp. (9th ed.), 499, 500; 5 Otto., 369; 18 Rep., 33; 15 Conn. 475; 9 B. Mon., 526; 37 Mo. 272; 16 Wall., 644; 22 Minn. 53; 6 Neb. 474; 80 Ky. 552.

The court erred in holding that the assessment books should govern. But if any assessment should be taken, it should be that of 1881.

The act of 1875, in so far as it made the assessment book a test of the vote, was unconstitutional. See authorities supra.

J. E. Gatewood for appellees.

1. This case is governed and practically settled by 45 Ark. 400. It was there held that a removal of a county seat cannot be made unless a majority of the votes cast be in favor of changing to a particular point, and exceeds one-half of the polls returned by the Assessor.

Reviews the evidence, and makes tabulated statements, showing that the majority was not for removal.

2. The Assessor's return of 1882 should govern in this case. That was the year the election was ordered, and more likely to show the list of voters in the county.

3. The Assessor was authorized by law to assess the poll-tax, and make return thereof. Const. 1868, art. 9, sec. 4; Const. 1874, art. 14, sec. 3; act March 5, 1875.

4. The decision in 45 Ark. 400, should not be reconsidered.

The Legislature clearly had the right to require a larger number of votes to remove a county seat, than a mere majority of those voting, and to provide some method of ascertaining that number. Art. 13, sec. 3, Const.; 4 Ark. 431; sec. 1165, Mansf. Dig.; 27 Ark. 176; 4 Am. Rep., 177; 1 Ark. 512; 23 Cent. Law Jour. No. 12, March 25, 1887; 32 Ark. 131; 1 Am. Rep., 238; Cooley Const. Lim., 168, 171; 11 Ark. 481; 39 id., 353.

OPINION

BATTLE, J.

At the July term, 1882, of the County Court of Prairie county, many citizens filed a petition asking that an election be ordered to determine whether the county seat of that county should be moved from Des Arc to Hazen or not. At the October term following other petitions to the same effect were filed. These petitions not being deemed sufficient others were filed at a subsequent term, and the election was ordered to be held on the 15th of February, 1883. In the meantime, on the 18th of September, 1882, the personal assessment list of the county for 1882 was filed. The election was held on the day fixed, and the result was reported to the County Court, which found that the number of persons returned by the Assessor for 1882, liable to a poll-tax, was 2057; that the number of votes cast for change was 957; that the votes cast for change did not exceed one-half of the number of persons in the county liable to pay a poll-tax, as returned upon the personal assessment list of the county for 1882; and that the proposition for change was, therefore, defeated. An appeal was taken to the Circuit Court of the county with the same result had in the County Court.

Appellants now contend, among other things, that the court below erred, because there was no law authorizing or requiring the Assessor to return a list of the persons liable to pay a poll-tax at the time the assessments for 1881 and 1882 were made, and, therefore, the result of the election should have been determined by the vote actually cast; and because, if there had been such a law, to ascertain the majority necessary to authorize the change of a county seat, the court should have been governed by the number of persons liable to pay a poll-tax as returned upon the Assessor's books for 1881 instead of 1882.

The Constitution of this State ordains that an annual per capita tax may be assessed on every male inhabitant of this State over the age of twenty-one years. The Legislature by an act, entitled "An Act to amend the revenue laws of this State," approved March 5, 1875, provided that a per capita tax of one dollar should be levied on every male inhabitant over twenty-one years, for school purposes, and required the Assessor to give notice that he would appear at the usual voting places in each township, "for the purpose of taking a list of the personal and real property of each resident of the township, and the per capita tax of such as are liable to pay the same;" and, by an act entitled "An Act to be entitled an act to maintain a system of...