Shay v. Welch

• Decision Date: 17 December 1945
• Docket Number: 4-7780
• Citation: 191 S.W.2d 253,209 Ark. 519
• Parties: Shay v. Welch
• Court: Arkansas Supreme Court

191 S.W.2d 253

209 Ark. 519

Shay v. Welch

No. 4-7780

Supreme Court of Arkansas

December 17, 1945

Appeal from Sharp Circuit Court, Southern District; John L. Bledsoe Judge.

Affirmed.

E D. Viner, for appellant.

T J. Carter and W. M. Thompson, for appellee.

OPINION

Robins, J.

Appellees filed in the county court of Sharp county a petition, setting forth that the signers thereof constituted fifteen per cent. of the qualified electors of that county, and praying that an election be called, as provided for in Initiated Act No. 1, adopted on November 3, 1942, (Acts of 1943, p. 998) for the purpose of voting on the question of the manufacture, sale, bartering, loaning or giving away of intoxicating liquors in the county.

On July 25, 1945, the county court heard the petition, and, finding that it was signed by the requisite number of voters, ordered the election to be held on August 22, 1945. Appellants, Shay and Wiles, licensed liquor dealers of the county, filed a motion asking the county court to make them parties to the proceedings, so that they might prosecute an appeal from the order calling the election. They averred that the Act under which the election was called had been repealed or amended by Act No. 135 of the General Assembly, approved February 27, 1945, providing that men in the armed forces should "have 60 days . . . in which to vote," and that the proposed election could not lawfully be held on the date fixed, since it was to be held less than sixty days after the order therefor. It was further alleged by said appellants that the petition was not signed by fifteen per cent. of the qualified voters of the county, and that the county court had before it no proper record from which to determine the number of qualified electors in the county. The county court entered an order making these appellants parties to the proceedings and granting them the right to appeal from the order theretofore made.

After transcript of proceedings in the county court had been lodged in the circuit court a number of citizens of the county then serving in the armed forces of the United States filed in circuit court an intervention, asking to be made parties. In their intervention they adopted the pleadings filed by appellants, Wiles and Shay, and they further alleged that, because the time (elapsing from the date of call to date of election) as fixed in the Initiated Act was so unreasonably short as to prevent them from voting, the Act was unconstitutional and void, and also that the order fixing date of the election was contrary to the provisions of Act 135 of the General Assembly of Arkansas, approved February 27, 1945. No objection to the filing of this intervention, on the ground that new parties to the proceedings could not properly be made except in the court where the proceedings originated, was made below or is urged here by appellees.

The circuit court found that the petition was signed by fifteen per cent. of the voters of the county, and ordered that the matter be certified back to the county court, to the end that the election might be called as provided by law.

For reversal of the circuit court's order, appellants urge:

I. That voters absent from the county in the armed forces were by the proceedings below denied their constitutional right to vote in the election.

II. That the provisions of Initiated Act No. 1 of 1942, pertaining to time of calling the election were repealed or amended by Act No. 135 of the General Assembly of 1945, so as to require the elapsing of at least sixty days between the call for the election and the holding thereof.

III. That there was no proper record from which the names and number of qualified electors of the county could be determined; and that for this reason the court was without power to call the proposed election.

I.

Appellants' first contention was settled adversely to them by our decision in the case of Lienhart v. Bruton, 207 Ark. 536, 181 S.W.2d 468. In that case Mr. Justice Knox, speaking for the court, said: "Appellant's further contention is that since, during the war, service men will have little opportunity to participate in the local elections which may be held under authority of the Act [Initiated Act No. 1, adopted November 3, 1942], such Act violates the above-mentioned provision of the constitution. The contention is entirely without merit. No elector in the armed forces is, has been, or will be prohibited from voting by any provision of this Act. It is the war and the necessity for winning it which has taken them away from their homes. This Act had nothing to do with it."

II.

The Initiated Act here involved directs that the election provided for therein be held not less than twenty nor more than thirty days from final determination that a proper petition has been filed; and appellants argue that this portion of the law has been repealed or amended by the last clause in § 1 of Act 135 of 1945, enacted to facilitate voting by persons absent from the state in the armed forces of the United States, which is as follows: "Provided said ballot may be sent any time within 60 days prior to the election, but must be received by the county clerk before 6:00 p.m. on the day of election."

There is no reference to the Initiated Act authorizing the local option election in said Act 135 of 1945, so that, if there has been a repeal or amendment of any provision of the former by the latter Act, such repeal or amendment must arise by implication. The rule as to implied repeals is thus stated in 59 Corpus Juris, p. 914: "It is a general rule that an act is not impliedly repealed because of conflict, inconsistency, or repugnancy between it and a later Act unless the conflict, inconsistency, or repugnancy is plain, unavoidable, and irreconcilable."

In the case of Kendall v. Ramsey, 179 Ark. 984, 19 S.W.2d 1020...