Vance v. Johnson

• Decision Date: 01 February 1965
• Docket Number: No. 5-3443,5-3443
• Citation: 238 Ark. 1009,386 S.W.2d 240
• Parties: Kennard VANCE et al., Appellants, v. J. W. JOHNSON, Appellee.
• Court: Arkansas Supreme Court

Page 240

386 S.W.2d 240

238 Ark. 1009

Kennard VANCE et al., Appellants, v.J. W. JOHNSON, Appellee.

No. 5-3443.

Supreme Court of Arkansas.

Feb. 1, 1965.

Kaneaster Hodges, Newport, W. E. Billingsley, Melbourne, for appellants.

Smith, Williams, Friday & Bowen, Little Rock, Ponder & Lingo, Walnut Ridge, for appellee.

ROBINSON, Justice.

On June 11, 1963, a special election was held in Sharp County, Arkansas.Among the issues voted upon were: (1) The elimination of the two present county seats at Hardy and Evening Shade, and (2) the establishment of a new, single county seat at Ash Flat.

Principally at issue is the necessary 'majority vote' to enact such a change.

Following the election, the County Judge of Sharp County made an order of the court declaring the results, to wit:

For Change        1438
                Against Change     618
                For Ash Flat      1424
                Against Ash Flat   623
                

There is no contest with respect to the above tabulations.

The County Court then found that there were 2991 qualified electors in Sharp County as reflected in the 1962-63 poll tax list filed in the office of the County Clerk that although a substantial majority of those casting ballots voted for the change, 1438 was not a majority of the 2991 persons having paid a poll tax.This order was rendered on June 18, 1963.On December 2, 1963(some five months later) an appeal was taken to the Sharp Circuit Court.That court held that a majority of those casting ballots in the election had voted for the change and that this was sufficient in law to establish the county seat in Sharp County at Ash Flat.Thus this appeal.

On appeal appellants contend:

(1) That the appeal from the County Court was not filed within the time allowed by statute.

(2) That removal of a county seat in Sharp County requires the consent of a majority of those having paid a poll tax.

(3) That there is no lawful authority for removing a county seat in Sharp County.

Under the Constitution appeals from judgments of the County Court are to the Circuit Court, under such restrictions as may be prescribed by law.Article 7, Sec. 33.The time within which an appeal may be taken has been limited to six months.Ark.Stat.Ann. § 27-2001(Repl.1962).Here appellee appealed within six months, but appellants assert appellee must comply with further limitations found in § 3-1203and§ 13-1216.We do not agree.Section 3-1203 requires that all actions to contest a county election shall be commenced within twenty days following the election.The case at bar is in no sense of the word the contest of an election.An election contest involves the matter of going behind the returns and inquiring into the qualifications of the electors and other matters affecting the validity of the ballots.Jones v. Dixon, 227 Ark. 955, 302 S.W.2d 529;Parsons v. Mason, 223 Ark. 281, 265 S.W.2d 526.Here, neither appellants nor appellee questions the certified returns, the elector's qualifications or any other matters regarding the validity of the ballots.On the contrary, both parties vigorously rely on these returns to establish their case.Appellee's sole concern on appeal is the law applied to these returns.

Section 13-1216 allows thirty days in which to appeal the County Court's order as to the results of the election.An appeal from that order would merely test the correctness of the Court's tabulation of the returns.Jones v. Dixon, supra;Parsons v. Mason, supra.The present appeal does not test the correctness of the Court's tabulations.To the contrary, appellee affirms these tabulations and merely attacks the law as applied to them.An appeal directed toward the Court's finding as to the tabulation is one thing.An attack on the law as applied to that tabulation is something entirely different.Jones v. Dixon, supra.As a matter of right, appellee had six months in which to appeal.Ark.Stat.Ann. § 27-2001(Repl.1962).

Authority for the removal of a county seat is found in Act 86 of 1875(digested in Ark.Stat.Ann. § 17-201 et seq.[Repl.1956]).Section 10 of this Act provides:

'That to ascertain the number of qualified voters of any county for the purpose of this act, and the lawful majority necessary to authorize the change or removal as herein provided for, the county court shall be governed by the number of persons liable to pay a poll tax as returned upon the assessor's books.'(Emphasis ours.)

In 1901this section was amended to read 'shall be governed by the number of persons who have paid their poll tax * * * Provided, this act does not apply to the counties of * * * Sharp * * *.'(Nineteen other counties were also exempted.)Ark.Stat.Ann. § 17-209(Repl.1956).Because this Act exempted twenty counties, all agree that it was a local one.It remains valid, however, and in force until repealed, since it was enacted prior to the constitutional prohibition of local legislation adopted in 1926.Amendment Fourteen to the Arkansas Constitution provides:

'The General Assembly shall not pass any local or special act.This amendment shall not prohibit the repeal of local or special acts.'

In 1963 there was an attempted 'reenactment' of the 1901 local act.In addition to somewhat materially changing the body of the act itself, it deleted Sharp County from the list of exempted counties so as to bring Sharp within the purview of the 1901amendment.While the Constitution prohibits enactment or amendment of local legislation, it allows repeal.Appellants argue that the 1963 Act is repealed and therefore, not violative of the Fourteenth Amendment.We cannot agree.The 'repeal' is of an exception, the final effect of which is to add on to local legislation and this procedure has been declared void and of no effect.Johnson v. Simpson, 185 Ark. 1074, 51 S.W.2d 233.Therefore, the County of Sharp, having been expressly exempted from the operation of the 1901Amendment and because the 1963 Act is void and of no effect, remains...