Swanberg v. Tart

• Decision Date: 30 October 1989
• Docket Number: No. 89-69,89-69
• Citation: 300 Ark. 304,778 S.W.2d 931
• Parties: Dennis SWANBERG et al., Appellants, v. Raymond TART et al., Appellants.
• Court: Arkansas Supreme Court

Page 931

778 S.W.2d 931

300 Ark. 304

Dennis SWANBERG et al., Appellants, v. Raymond TART et al., Appellants.

No. 89-69.

Supreme Court of Arkansas.

Oct. 30, 1989.

B.W. Sanders, Randy L. Hill, Arkadelphia, for appellants.

Paul Bosson, David White, Hot Springs, Herschel H. Friday and Kevin A. Crass, Little Rock, for appellees.

GLAZE, Justice.

This case concerns the Hot Springs election held on March 9, 1989, when the voters approved Sunday racing. Seven days prior to the election, appellants, citizens and residents of Garland County, filed a petition in circuit court, seeking to invalidate the legislation providing for such election and to enjoin the election. The Garland County Board of Election Commission, the Hot Springs Board of Directors and the Oaklawn Jockey Club, Inc., as intervenors, defended against the appellants' suit. The trial court denied the appellants' request on March 8, 1989, and on that same day, appellants filed their motion in this court requesting we "stay" the March 9 election. We denied that request, and now appellants, raising six points for reversal, ask that we reverse the trial court's decision and set aside the March 9 election results that approved Sunday racing. ¹

First, we mention that this court's denial of the appellants' request to stay the March 9 election was based upon the settled rule that the courts are without authority to enjoin the holding of a regular election, regularly called. Brown v. McDaniel, 244 Ark. 362, 427 S.W.2d 193 (1968). If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. Id. In Brown, the court had four days to consider the taxpayers' request to enjoin the election, and accordingly, it concluded that the best course was to let the election be held, leaving the parties to their post-election remedies. That same procedure was dictated here, since this case was first presented to this court one day before the scheduled election.

This controversy arose from the General Assembly's enactment of Act 12 of 1989, which amended Ark.Code Ann. § 23-110-402 (Supp.1987) and other related statutes. Section 23-110-402(b) previously empowered the Arkansas Racing Commission to specify racing days on which racing may be conducted, but in doing so, Sundays were excluded. Generally, Act 12 changed the law to permit the franchise holder (Oaklawn Jockey Club) to request the governing body (Hot Springs Board of Directors) to submit the Sunday racing issue to the voters in Hot Springs at a special election. Such an election, under Act 12, is required to be conducted under the general election laws except for the following:

1. The notice of the election shall be given by the clerk of the city, town or county involved by one publication in a newspaper having general circulation not less than ten days before the election 2. the election shall be held no earlier than fifteen days after the date of the adoption of the ordinance in which the election is called by the legislative body;

3. the mayor of the city shall proclaim the results of the election by issuing the proclamation and publishing it one time in a newspaper having general circulation within the city; and

4. the results of the election shall be conclusive unless suit is filed in the circuit court within twenty days after the date of the publication of the proclamation.

Act 12 had an emergency clause which, if valid, made the act effective when the Governor signed it on February 3, 1989. On February 21, 1989, the Hot Springs Board of Directors, pursuant to Act 12, passed Ordinance No. 3992 which called a special election on the Sunday racing issue to be held on March 9, 1989. On March 2, 1989, appellants filed their original petition to enjoin the election.

Appellants first contend the March 9 election should be set aside because the time and manner in which it was called violated the absentee voting provisions, particularly Ark.Code Ann. § 7-5-407(a) (1987), of the state election code. In sum, § 7-5-407(a) provides that absentee ballots must be delivered to the county clerk not less than twenty-five days before any election. In the present case, the Hot Springs Board of Directors called the election on February 21, 1989, which was only fifteen days before election day. Appellants' argument must fail.

To begin, we note the well-settled rule that before an election, the provisions of election laws are mandatory, and after the election, the provisions are directory. Henley v. Goggin, 241 Ark. 348, 407 S.W.2d 732 (1966). In Henley, an action was brought against the Searcy County Board of Election Commissioners about three weeks prior to the November 8, 1966 General Election to require the commissioners to comply with amendment 51, Arkansas's voter registration law and the state's absentee voting procedures. Recognizing the importance and the mandatory nature of the relief sought, this court advanced the cause for submission and decided its issues prior to the election.

Here, appellants requested no action to require the Garland County Board of Election Commissioners or the Garland County Clerk to comply with Arkansas's absentee voting laws. Instead, appellants merely asserted the March 9 election should have been enjoined (and now assert set aside) by pointing to the twenty-five day requirement in § 7-5-407(a) and the fifteen days actually allowed due to the date the Hot Springs Board of Directors called the election. Appellants failed at trial, or in this appeal, to name even one voter who was disenfranchised by the absentee voting procedure employed at the election. Appellees, on the other hand, introduced testimony at trial by the Garland County Clerk, who said that she was "not aware of anyone being cutoff because of the lateness in arrival of absentee ballots." This court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the result doubtful. Lewelling v. Mansfield School Dist. No. 76, 240 Ark. 237, 398 S.W.2d 665 (1966); see also Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980). Here, appellants have wholly failed to show the wrong it asserts in any way caused a doubt in the election results on March 9. ²

In their second point for reversal, appellants contend that Act 12 is special legislation and violates amendment 14 to the Arkansas Constitution. This court has defined special legislation as follows:

An act is special if by some inherent limitation or classification it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole.

See, e.g., Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988).

Appellants' main argument here is that Act 12 alters the state election laws for the convenience of the Oaklawn Jockey Club and the City of Hot Springs. Such an argument altogether ignores the fact that amendment 46 to the Arkansas Constitution provides that Hot Springs be treated differently by allowing horse racing and pari-mutuel wagering in that city only. If we were to accept the appellants' argument, any legislative act, pertaining to horse racing authorized by amendment 46, would be special legislation.

For much the same reason, we reject appellants' third argument. In this respect, appellants contend that all the voters in the state should have been allowed to vote on the Hot Springs Sunday racing issue. In support of their argument, appellants cite Ark.Code Ann. §§ 23-110-303 and -305 (1987), which provide that the approval of a majority of the qualified electors in the state must authorize the commission's grant of a franchise to conduct horse racing in any county in this state.

Of course, we are not confronted here with the granting of a horse racing franchise which would invoke §§ 23-110-303 and -305. Such a franchise already has been vested, and under amendment 46, the General Assembly is empowered to regulate it. Sections 23-110-303 and -305 simply are not applicable. Amendment 46, itself, contains no language that would prohibit the General Assembly from referring the Sunday racing issue to a vote of the Hot Springs voters, rather than to the voters throughout the state, and we are aware of no other constitutional provisions that would bar the General Assembly. ³ The system of elections was unknown at common law and is a matter governed purely by statute. See McCoy v. Story, 243 Ark. 1, 417 S.W.2d 954 (1967). We hold the General Assembly acted within its authority in passing Act 12 and allowing the Hot Springs voters to approve Sunday racing.

In point four, appellants argue that Act 12 is an unconstitutional attempt by the General Assembly to delegate its legislative authority to regulate racing pursuant to amendment 46. As we have stated and held above, the General Assembly was given the power under amendment 46 to decide the Hot Springs Sunday racing issue; nevertheless, by its enactment of Act 12, the General Assembly decided to allow the voters a voice on the question. This was not a delegation of legislative authority to enact a law. The court has held on prior occasions that the General Assembly can enact a law and provide for operation under it to depend upon a contingency or condition, such as a favorable vote of the electors. Summers v. Road Improvement Dist. No. 16, 160 Ark. 371, 254 S.W. 696 (1923); Capps v. Judsonia & Steprock Road Improvement Dist., 154 Ark. 46, 242 S.W. 72 (1922). In Capps, the court espoused the rule that the General Assembly may make a law to delegate the power to determine some facts or state of things, upon which the law makes or intends to make its own action depend. The court amplified by stating the following:

... it is plain that the statute...