Trussell v. Fish

• Decision Date: 13 October 1941
• Docket Number: No. 4-6411.,4-6411.
• Citation: 154 S.W.2d 587
• Parties: TRUSSELL v. FISH.
• Court: Arkansas Supreme Court

154 S.W.2d 587

TRUSSELL v. FISH.

No. 4-6411.

Supreme Court of Arkansas.

October 13, 1941.

Appeal from Circuit Court, Lincoln County; T. G. Parham, Judge.

Election contest by W. A. Fish against W. A. Trussell. From an adverse judgment, the contestee appeals.

Affirmed.

A. J. Johnson, of Star City, and James H. Nobles, Jr., and J. R. Wilson, both of El Dorado, for appellant.

E. W. Brockman, of Pine Bluff, for appellee.

GRIFFIN SMITH, Chief Justice.

In the democratic primary election of 1940 in Lincoln county, W. A. Trussell, upon the face of returns, received 758 votes for the office of county judge. His opponent, W. A. Fish, received 729. Fish contested, alleging that if illegal ballots cast for Trussell were deducted the result would be reversed.

Rules of the party were pleaded, including the provision that a challenge may be sustained to the vote or ballot of anyone who, within two years preceding any primary, had wilfully refused to support the nominee in a general election, or who by word or action had espoused the cause of any but democratic nominees.

Application of the rule was invoked in respect of transactions relating to the 1938 general election, wherein J. G. Tucker, an independent candidate, sought the office of county judge in opposition to W. A. Fish, the latter having been selected as the democratic nominee. Tucker's name was placed on the ballot in response to a petition signed by 78 persons, 59 of whom participated in the primary election.

Many other charges of irregularities were made: That republicans and persons holding illegal poll tax receipts voted; that persons rendered infamous through convictions of crimes whose citizenship had not been restored were participants; that gift poll tax receipts were held by those who supported Trussell; that persons who would not be 21 years of age at the succeeding general election were not excluded, and that additional illegalities accounted for the apparent majority received by appellant.

Trial began September 19, 1940, and continued until October 18. The court found that 331 illegal votes had been cast for Trussell and 208 for Fish, and that Fish had been nominated by a majority of 94 votes.

One of appellant's contentions is that the court erred in not excluding 390 votes cast for Fish as to which there was no evidence of the electors' qualifications other than the printed list supplied election officers, upon which the names appeared.

Section 4696, Pope's Digest,¹ directs the county collector to file with the county clerk a list containing the names of all persons who, within the time prescribed, have paid the poll tax assessed against them. It is then provided: "The correctness of this list shall be authenticated by the affidavit of the collector in person". This list is transmitted to the county clerk, who in turn delivers a verified copy to the county election commissioners. The list is printed and distributed with the ballots and blank poll books.

The list of voters questioned by appellant was certified by the collector. It was then delivered to the county clerk, who certified a copy to the election commissioners, and the commissioners caused the list to be printed in pamphlet form. It is conceded, however, that the collector did not attach his affidavit to the list, although he testified this was a mere oversight; that he "made" the record and delivered it to the clerk; that his signature was attached for the purpose of evidencing belief in accuracy of the work, and "* * * when I signed * * * it looked to me like that was guaranteeing the list".

First. — The trial court held that what the collector did was in substantial compliance with the law. To this view we assent. In support of appellant's argument it may be said that there is language in some of the opinions which seemingly supports the contention that the list was void. Appellant does not insist that after making proof of the collector's failure to affix his affidavit no verity attached to the list. His position is that it then devolved upon the party questioning ballots accepted by election officers to show, as a prerequisite to validity of such ballot, that the voter filed with judges of election an original poll tax receipt or a certified copy,² or in other respects complied with statutory provisions.

An election judge from each voting precinct testified that the printed list was relied upon in respect of names it contained, and that no other evidence of qualification was required except in a few instances. Of ballots cast for appellee, 390 were examined for the purpose of showing that neither a poll tax receipt nor certified copy was attached, and that separate lists of such voters were not returned by the election officials.

The first case argued by appellant (to sustain his contention that even if, prima facie, verity attached to the returns made by election officials, such verity must necessarily give way to proof that other mandatory requirements of § 4696 of Pope's Digest were not complied with) is Morrow v. Strait, 186 Ark. 384, 53 S.W.2d 857, 858. In that case the complaint alleged illegality of votes "Because there was no certified authenticated sworn list of qualified electors filed with the clerk of Conway County * * * by the collector".

The opinion quotes from Cain v. McGregor, 182 Ark. 633, 32 S.W.2d 319, where in respect of § 3740 of Crawford & Moses' Digest it was said: "The whole proceeding is statutory, and the statute must be substantially followed in all proceedings". It was further said in the Morrow v. Strait case that there is a presumption that the election was conducted according to law. There is the statement that "* * * we have never held * * * that an election was illegal and void where the collector had not filed with the county clerk an authenticated list of the names of persons who had paid their poll tax". There is reference to Brown v. Nisler, 179 Ark. 178, 15 S.W.2d 314, 316, where it was said that the provisions of § 3740 of C. & M. Digest "* * * are the positive requirements of the statute, and "The effect of not substantially complying with the law with regard to the preparation and publication of the printed list of voters was to nullify the list and leave the same condition as if no list had been printed at all".

The Brown v. Nisler case is distinguishable from the instant appeal in that here the collector prepared the list and certified it as authentic, neglecting only the statutory requirement of an affidavit. In the Brown v. Nisler controversy the collector did not prepare a list, that function having been performed by the county clerk, who then delivered it to a printer. Hence, no verity could attach to a list that had no legal existence. In the case at bar the collector's certificate is attached to the poll lists, as is that of the county clerk. These lists went to the election officers who, no doubt, did not know of the law's requirement that the collector certify and swear to them. The statute does not require that the collector's affidavit be printed on the list made from the county clerk's certified copy, and there was nothing to put election officials upon notice that the list was not completely authenticated.³

It is our view that, although it is mandatory before an election has been held that the collector attach his affidavit to the poll tax list, and compliance with the statute may be enforced, yet a failure to make the affidavit discovered after the list has been certified under the collector's oath of office does not have the effect of putting election officers on notice that in order to have a valid election they must require each person who offers to vote (whose name is on the list certified by the county clerk) to deposit his or her poll tax receipt or a certified copy.

In a contest it may be shown that persons on the list are ineligible to vote, and errors may be so numerous as to overcome the presumption of verity that attaches to the list (Wilson v. Luck, 201 Ark. 594, 146 S.W.2d 696), but presumptive verity of the list continues, even without the collector's affidavit, until something more than failure to make the oath has been shown. Such failure, in the circumstances reflected by the case at bar, is not indicative of fraud.

In most of the cases where effect of the collector's failure to make the affidavit is discussed (see third footnote) it is said that there must be substantial compliance with the statute, and to this rule we adhere. The question is: What is substantial compliance? And it follows that proof in a particular case regarding intent and effect must first be considered before an answer can be formulated.

There would be a subversion of purpose and a sacrifice of popular will if we should say that in a primary election the unintentional failure of a ministerial officer to perform strictly all functions which are made mandatory with respect to verification of poll tax lists, continues to be imperative after the lists, unaffected by fraud, and substantially correct in all other essentials, have performed the service intended by the legislative authority.

Second. — Appellant urges that delinquent assessments were invalid because R. W. Eastham was not a qualified elector and his appointment as deputy collector was illegal. Attention is directed to Act 172 of 1929, vol. 2, and to § 4693 of Pope's Digest. It is contended that, although Act 82 of 1939, § 2, extends the time for payment of taxes, it does not extend the time for making assessments upon which a poll tax entitling one to vote may be procured; also, that the poll tax book for 1938 did not contain the affidavit required by law, "* * * nor did it contain any affidavit at all made by the assessor to the correctness of the personal poll tax list, as required by § 18 of Act 172 of the Acts of 1929, now Pope's Digest, § 13679".

The flaw urged against assessments made by Eastham as deputy is that he did not hold a 1937 poll tax...