Taaffe v. Sanderson, 429

• Court: Supreme Court of Arkansas
• Writing for the Court: MCHANEY, J.
• Citation: 294 S.W. 74,173 Ark. 970
• Parties: TAAFFE v. SANDERSON
• Docket Number: 429
• Decision Date: 02 May 1927

294 S.W. 74

173 Ark. 970

TAAFFE
v.
SANDERSON

No. 429

Supreme Court of Arkansas

May 2, 1927

Appeal from Little River Circuit Court; B. E. Isbell, Judge; affirmed.

Judgment affirmed.

Otis Gilleylen, J. R. Morrell, Abe Collins and A. D. DuLaney, for appellant.

John J. DuLaney, A. P. Steel, Feazel & Steel and James D. Head, for appellee.

OPINION [294 S.W. 75]

[173 Ark. 972] MCHANEY, J.

At the Democratic primary, August 10, 1926, in Little River County, appellant, George Taaffe, appellee, J. G. Sanderson, Charles Billingsley and P. M. McCord were rival candidates for sheriff and collector. Appellant, A. T. Collins, appellee, C. S. Cobb, W. D. Waldrop and W. E. Kinsworthy were rival candidates for county judge. On the face of the election returns Taaffe was nominated for sheriff and Collins for county judge. Sanderson and Cobb, each having received the next highest votes to the winners for the respective offices, and being dissatisfied with the result as reflected by the returns, filed a contest before the county central committee at its meeting on August 13. The committee spent two days hearing the contest, and, after due deliberation, found that Taaffe and Collins had won, and dismissed the contests. Thereafter, on the 23rd day of August, and within the time provided by law, the contestants filed separate identical complaints in the circuit court against Taaffe and Collins, to which separate identical answers were made, the cases consolidated, tried, and briefed together. Each complaint was verified by what purported to be ten reputable citizens, and, in addition to all the [173 Ark. 973] formal jurisdictional matters necessary, it charged that Collins and Taaffe were the sheriff and collector and deputy sheriff and collector, respectively, and conspired together to nominate Taaffe to succeed Collins, and to nominate Collins, the retiring sheriff, to the office of county judge, and to accomplish the alleged conspiracy by issuing poll-tax receipts to voters favorable to them, without being assessed as required by law, and to put such names on the clerk's delinquent list; that 150 names were thus placed on the clerk's list; that they placed the names of 60 women voters on the taxbooks by adding the words "and Mrs.," with the initials of the husband, after the husband's name, and that these women had not been assessed properly; that other names were improperly placed on the taxbooks by them, and that a number of poll-tax receipts were issued after July 3, in violation of law. Many individual voters were challenged in a number of townships, and other allegations of irregularities on the part of election judges in permitting many persons to vote who were not qualified electors, were made, the contention being that such votes cast for the contestees should be thrown out, and, by so doing, would result in the nomination of the contestants.

The case was submitted to the learned trial judge without a jury, a jury not being necessary or proper under the law. Section 3773, C. & M. Digest. The hearing was begun on September 14, and, after very patiently and painstakingly hearing a mass of testimony, running through a record of almost 1,000 pages, the court, on September 25, rendered a judgment finding that Sanderson had defeated Taaffe for sheriff and collector by 46 votes, and that Cobb had defeated Collins for county judge by 13 votes. To reverse this judgment the contestees have appealed to this court.

Before proceeding to a discussion of the issues we deem it proper to observe that the real object of the courts in all election contest cases is to determine whether the contestant or the respondent has received the highest number of legal votes. This should be the guiding star, [173 Ark. 974] like the Star of Bethlehem to the wise men of old. This court, 50 years ago, in the case of Govan v. Jackson, 32 Ark. 553, so held, and, further, that the [294 S.W. 76] contest is "not confined to the ground specified in the contestant's notice of contest." This case was cited with approval in Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30, and in McLain v. Fish, 159 Ark. 199, 251 S.W. 686.

There can be no real representative form of government, no real representative democracy, without honest elections, and there can be no honest elections where the will of a majority or plurality of the qualified electors is thwarted and not permitted to prevail. In order to prevent this the Legislature has passed many laws, including what is commonly known as the Corrupt Practice Act, § 3896 et seq., C. & M. Digest; and the people, by the initiative, have enacted a law known as the Brundidge Primary Election Law, § 3757 et seq., C. & M. Digest. These acts were born of experience, and the courts have sustained and enforced them.

We come now to a consideration of the points of law raised by counsel on this appeal.

1. It is first contended that Sanderson failed to comply with the Corrupt Practice Act in that he failed to file the pledge required by § 3898 of C. &. M. Digest with the county clerk thirty days before the election, "stating that he is familiar with the requirements of this act, and will, in good faith, comply with its terms." This complaint does not apply to Cobb. Sanderson did file in proper time the following pledge: "I, James G. Sanderson, hereby certify that I am familiar with the Corrupt Practice Act applying to the Democratic primary, and all of the laws governing same." His pledge was defective in that he omitted to say that he would in good faith comply with its terms, and appellant Taaffe contends that this was a fatal defect, for the reason that he could not legally be a candidate until he had literally complied with this requirement. We do not think this point well taken, and we hold that this was a substantial compliance, especially so in view of the fact that it is not contended [173 Ark. 975] that any other provision of this act was violated or that Sanderson was guilty of any of the corrupt practices denounced by the act. Moreover, it is difficult to perceive how Taaffe can be heard to complain of this defect in the pledge, if, in fact, he did not receive a sufficient number of votes to give him the nomination, as the court held. Certainly, if he did not receive a plurality of the votes, no court could declare him the nominee.

2. The next contention is that the complaints of both contestants were not supported by the affidavits of ten qualified electors as required by law, and that Sanderson was not himself a qualified elector. No such contention is made as to Cobb. Each complaint is supported by eleven affiants who claim to be qualified electors. By § 3772, C. & M. Digest, the complaint must be supported "by the affidavits of at least ten reputable citizens," the words "qualified electors" not being used. But this court held in Simmons v. Terral, 145 Ark. 585, 224 S.W. 977, that the word "citizens" as used in the act is synonymous with the word "electors." So the meaning is the same. One of the affiants, C. P. Smith, was a citizen and resident of Jefferson Township, just outside the corporate limits of the city of Ashdown, and, 12 days before the primary election, he removed from thence to ward 2 in the city of Ashdown. With the exception that he had not resided in ward 2 thirty days at the date of the primary, or at the date of signing the affidavit, he was in all respects a qualified elector. The court held that this affiant was not a qualified elector, and appellant cannot complain. We do not decide whether the court properly so held, as it is not necessary in this case. There does not appear to be any serious contention about the qualifications of the other ten affiants, except as to two, Joe Gill and...