Sumpter v. Duffie

• Citation: 97 S.W. 435,80 Ark. 369
• Parties: SUMPTER v. DUFFIE
• Decision Date: 29 October 1906
• Court: Arkansas Supreme Court

97 S.W. 435

80 Ark. 369

SUMPTER v. DUFFIE

Supreme Court of Arkansas

October 29, 1906

Prohibition to Garland Circuit Court; writ denied and petition dismissed.

Petition dismissed.

R. G Davies, C. V. Teague and J. P. Clarke, for petitioner.

1. As the office of county judge is a county office, the circuit court neither has, nor can it be invested with, original jurisdiction to hear a contest concerning the title thereto where the basis of the contestant's claim is alleged fraudulent and illegal voting and false certifying by election officers. Sec. 24, art. 9, and sec. 52, art. 7, Const.; 51 Ark. 559; 32 Ark. 553; 69 Ark. 610.

2. The circuit court can not exercise original jurisdiction in such cases because the Legislature has failed to indicate a subordinate tribunal before which such an election contest can be tried and determined; because an election contest is not a "case" in the sense of that provision of the Constitution which constitutes the circuit court the great residuum of unassigned jurisdiction. Besides, since the original jurisdiction of the circuit court exists in all cases where jurisdiction is not exclusively vested in other courts or tribunals provided by the Constitution, its jurisdiction under the doctrine declared in State v. Devers would be original in all cases, if it could take jurisdiction in any. 34 Ark. 188; 14 Wash. 604; 41 La.Ann. 846; 44 Ib. 863; 43 Md. 572; 87 Mo. 487; 67 Tex. 555; 81 Ky. 43; 15 Ohio St. 114; 88 Mo. 559; 70 Ark. 240; 61 Ark. 295; 183 Ill. 323; 9 Ind. 475; 52 Tex. 335; 78 Ill. 261; 1 Met. (Ky.), 553.

3. Under the allegations of Lakenan's petition in the circuit court, it is plain that he relies upon an attack on the regularity and honesty of the election for the foundation of his claim, and the proceeding instituted by him is an election contest, in the strictest sense. On that state of facts the jurisdiction of the circuit court to hear and determine the same state of facts under another name would be such a palpable evasion of the constitutional inhibition upon that court to entertain original jurisdiction as to amount to a plain violation of that instrument. The usurpation act is available only in those cases where the officer's right of incumbency is challenged on some ground that does not seek to go behind the certificate of his election and his commission. 5 Ark. 271; 96 Ky. 63; 14 Wis. 115; 100, Ala. 634; 47 Cal. 524; 47 Ohio St. 232; 30 Kan. 661; 38 Mich. 405, 33 Minn. 536; 35 Minn. 385; 31 Ill. 234; 25 Ark. 32; 42 Mo. 179; 15 Ohio St. 130; 52 Tex. 344; 88 Mo. 159; 18 Col. 561; 55 Ark. 255; 77 Tenn. 644; 44 Pa. 332; 28 Ark. 139.

Greaves & Martin and Wood & Henderson, for respondent.

1. (a) The act of 1875, which named the circuit court as the court in which to institute contest proceedings for the office of county judge, is constitutional. Section 24, art. 19, Const., is express authority and positive direction to the Legislature to provide the mode of contests for all county, township and municipal offices, and for all State offices not specifically provided for in sec. 4, art. 16, Const. The word "mode," as used in sec. 24, art. 19, means place as well as manner of trial. 51 Ark. 559. See, also, 4 N.W. 519; 91 U.S. 367.

(b) The jurisdiction of the circuit court is fixed in positive and direct language by the Constitution, sections 11 and 14, art. 7. The jurisdiction of the other courts is also fixed in language equally positive by other provisions of the Constitution. Hence the framers of that instrument were not seeking either to confer or limit the jurisdiction of the circuit court when they enacted sec. 51, art. 7, and it is not thereby limited to appellate jurisdiction only. Contemporaneous legislative construction of the provisions of a constitution is to be considered in determining the meaning of such provisions. 52 Ark. 339; 6 Am. & Enc. Law (2 Ed.), 931; 6 Col. 97; 18 Nev. 44; 2 Wend. (N. Y.), 266. "Judicial interposition to avoid an act of the Legislature is never justified unless it is clear beyond rational controversy that it has passed the bounds set by the fundamental law." 60 Ark. 349.

2. If the act is unconstitutional, the circuit court would still under its general jurisdiction and powers (no other provision having been made by the Legislature for contesting for such an office) have jurisdiction to entertain the action. Sec. 11, art. 7, Const.; 60 Ark. 201; 68 Ark. 555; 28 Ark. 451; 61 Ark. 295; 50 Ark. 266. See, also, 35 N.E. 538; 17 Ill. 167; 101 Ind. 36; 44 Mo. 425; 44 N.W. 471; 7 Ohio, Dec. 471; 57 Tenn. 237; 65 Tex. 348; 34 Ind. 425; 66 Ala. 131; Payne on Elections, 856; McCrary, Elections (4 Ed.), 369; 2 Dillon, Mun. Corp. (4 Ed.), § 892.

OPINION

MCCULLOCH, J.

The petitioner, O. H. Sumpter, is contestee in an election contest instituted against him in the circuit court of Garland County by a rival candidate for the office of county and probate judge of that county at the general election held in September, 1906, and he presents to this court his petition for the writ of prohibition to prevent Hon. A. M. Duffie, the presiding judge of said circuit court, from assuming jurisdiction of the contest.

The statute provides that if the election of any county and probate judge shall be contested it shall be before the circuit court of the county. Act January 23, 1875, Kirby's Digest, § 5856. The petitioner contends that this statute is in conflict with the provisions of the Constitution of the State and void.

The Constitution contains the following provisions with reference to election contests:

"The general assembly shall provide by law the mode of contesting elections in cases not specifically provided for in this Constitution." Art. 19, § 24.

"That in all cases of contest for any county, township, or municipal office, an appeal shall lie, at the instance of the party aggrieved, from any inferior board, council, or tribunal to the circuit court, on the same terms and conditions on which appeals may be granted to the circuit court in other cases; and on such appeals the case shall be tried de novo." Art. 7, § 52.

The only mode of contesting elections specifically provided for in the Constitution is for the offices of Governor, Secretary of State, Treasurer of State, Auditor of State and Attorney General. Art. 11, § 4. Learned counsel for petitioner argue that the section of the Constitution just quoted confers jurisdiction upon the circuit court, appellate only in character, to determine election contests for county offices; that the provision is exclusive, and forbids the exercise by that court of original jurisdiction. If this be true, it is, of course, beyond the power of the Legislature to confer original jurisdiction upon the circuit court in contests for such offices. But we do not think that the section in question was intended as a limitation upon the power of the Legislature to provide tribunals wherein election contests shall be determined.

The two sections on the subject which have been quoted must be read together in order to interpret their meaning. The first one, in the broadest terms, empowers the General Assembly to provide a mode of contesting elections in cases not specifically provided for in the Constitution itself. This has been construed to mean that a place as well as a manner of trial shall be provided. Glidewell v. Martin, 51 Ark. 559, 11 S.W. 882.

The other section provides that in all contests for county, township or municipal offices an appeal shall lie from any inferior board, council or tribunal to the circuit court. It can be construed to mean only that, if the Legislature shall provide an "inferior board, council or tribunal" as the place of contest for such offices, an appeal shall lie therefrom to the circuit court. It does not mean, as contended, that the Legislature can not authorize a trial in the first instance in the circuit court, but must provide an inferior tribunal for the original hearing. This is plain when we consider the use of the word "inferior." If that word had been omitted, there might be less certainty that the framers of the Constitution did not mean to provide for an appeal to the circuit court in all contests for such offices, thereby conferring appellate jurisdiction only upon the trial court. But the use of the word "inferior" makes it plain that a right of appeal to the circuit court was guarantied only from "any inferior board, council or tribunal" which the Legislature might create or empower to determine such contests.

Doubtless, the framers of the Constitution had in mind that, contests for county, township or muncipal offices being matters of local concern, the Legislature, in the exercise of the general power conferred to provide a place for such contests, would either empower the circuit court sitting in the county to determine them, or create local tribunals to determine them which would be inferior to the circuit court, and in the latter event intended by this section to provide in mandatory terms for appeals to the circuit court from the decisions of such inferior tribunals.

We need not consider what the effect would be if the Legislature should attempt to confer original jurisdiction to hear such contests upon some tribunal with territorial jurisdiction coextensive with the State or subdivision thereof greater than a county--whether or not such tribunal would be inferior to the court in the meaning of the section giving a right of appeal to that court. We have no such question before us. The section in question, however, manifestly contemplates the creation of some tribunal, not superior to the circuit courts, to try election contests for county offices.

It is settled by authority that election contests are not civil actions in the ordinary acceptation,...