Terry v. Harris
| Decision Date | 13 November 1933 |
| Docket Number | 4-3350 |
| Parties | TERRY v. HARRIS |
| Court | Arkansas Supreme Court |
Mandamus to Pulaski Circuit Court, Third Division; Marvin Harris, Judge; writ granted.
Walter G. Riddick and Roy D. Campbell, for petitioner.
June P. Wooten and Arthur G. Frankel, for respondent.
Petitioner Terry prays a writ of mandamus to compel the circuit court of Pulaski County, before which tribunal an election contest is now pending, to require certain testimony to be admitted; to which petition the presiding judge has responded that the testimony in question is believed to be privileged, and that he is therefore without authority to compel its production.
The question arises upon the following facts: Petitioner Terry has been certified as the Democratic nominee for the office of congressman from the Fifth Congressional District, and Hays, his opponent in the primary election, is contesting the nomination. It is conceded that the contest may be instituted only upon the affidavit of ten qualified Democratic electors of that district supporting the allegations of the complaint charging facts sufficient to show that the contestant--and not the contestee--received a majority of the legal votes cast in the primary election which is under review. It is conceded also that, under the rules of the party holding the primary, the affiant, in addition to possessing the qualifications of an elector, shall not have voted against any regular party nominee at any election held within two years prior to the primary election under contest. This affidavit, which is required by § 3772, Crawford & Moses' Digest, is therefore a jurisdictional prerequisite, without which the right of contest does not exist.
The contestant filed an affidavit in proper form, signed by twenty-five persons, who averred their eligibility to make the jurisdictional affidavit; and the contestee has put in issue the eligibility of affiants by alleging that, within less than two years prior to the holding of the primary under contest, these affiants, or more than fifteen of them, had voted against a Democratic nominee, and that therefore the complaint was not supported by ten eligible affiants as required by law. If this be true, the contest must be dismissed for that reason.
The trial court held that it was permissible to show that the affiants had voted against a Democratic nominee within the time limited by the party rules, and were therefore ineligible to make the affidavit, and that the affiants might be asked how they had voted, but could not be required to answer, for the reason that their ballots were secret, and that it was their privilege to preserve this secrecy, unless they waived the privilege. It is prayed by this proceeding to require the affiants to answer such questions as may be asked them touching their qualifications to make the jurisdictional affidavit, and to have produced the ballots...
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Brown v. Anderson
...not change that rule now. To see that the Democratic nomination is a valuable privilege, we have only to read the case of Terry v. Harris, 188 Ark. 173, 64 S.W.2d 324. There, certain persons were allowed to be interrogated as to whether they had supported the Democratic nominees in the most......
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Brown v. Anderson
... ... To see ... that the Democratic nomination is a valuable privilege, we ... have only to read the case of Terry v ... Harris, 188 Ark. 173, 64 S.W.2d 324. There, certain ... persons were allowed to be interrogated as to whether [210 ... Ark. 974] they had ... ...
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Reed v. Baker
...actually a legally authorized notary public. Murphy v. Trimble, 200 Ark. 1173, 143 S.W.2d 534; Brown v. Anderson, supra; Terry v. Harris, 188 Ark. 173, 64 S.W.2d 324. And this is so, even if the affidavit appears to be sufficient upon its face. Thompson v. Self, 197 Ark. 70, 122 S.W.2d Unde......
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Walton v. Rucker
...give no support to the conclusion reached by the court below. The right to dismiss an action rests only with the "plaintiff." In Terry v. Harris, supra, it held that by signing the affidavit required in an election contest and alleging their eligibility to sign the same, the affiants became......