Walsh v. Hampton

• Decision Date: 07 November 1910
• Parties: WALSH v. HAMPTON
• Court: Arkansas Supreme Court

132 S.W. 214

96 Ark. 427

WALSH v. HAMPTON

Supreme Court of Arkansas

November 7, 1910

Appeal from Dallas Circuit Court; Henry W. Wells, Judge; affirmed.

Judgment affirmed.

Robert Martin and Miles & Wade, for appellant.

1. A void judgment rendered by the county court can lawfully be vacated after the term in which it was rendered has expired. 89 Ark. 160; 23 Cyc. 697.

2. Any voter has the right to be made a party to the record to contest a county seat removal proceeding. 54 Ark. 409; 72 Ark. 394; 23 Cyc. 697.

3. The judgment was void because no sufficient abstract of title accompanied the petition. An abstract of title made more than one year prior to the filing of the petition is not sufficient. Kirby's Digest, §§ 1115, 1117; art 13, § 3, Const. County courts must base action on the record before them. They can not take judicial cognizance of who are the owners of property. 52 S.E. 777; 70 Ark. 270-274; 11 Cyc. 371; 15 L.R.A. 501; 18 Fla. 842; 97 N.W. 103; 83 N.W 483; 25 Ind. 422; 24 Wis. 49; 20 Tex. 16; 60 Me. 356. No deed was filed, conveying the land proposed for county purposes. 46 Ind. 96. A provision that an election be held to locate a county seat within a certain time after presentation of a petition therefor is mandatory. 10 Kan. 162; 6 Nev. 104. See also 29 W.Va. 63.

4. The judgment is void because there was no valid election. Art 13, § 3, Const.; 67 Ark. 593; 47 Kan. 44; 15 Kan. 530; Kirby's Digest, §§ 1117, 1119; art. 3 § 3, Const.; Kirby's Dig., § 2789; 126 Ala. 615; Id. 660; art. 8 §§ 1, 2, Const. Ala.; 80 Ky. 557; 19 Fla. 538-9; 47 Ill. 482; 15 Cyc 316. If the general election law applies so as to furnish the election machinery for the holding of an election for special purposes, in which is included a county site removal, why should the Legislature expressly provide who should conduct school elections? Kirby's Digest, § 7591. Who should conduct local option elections? Id., §§ 51, 118-19. Who should conduct an election for the surrender of a city's charter? Id. 5550-2. Who should conduct a road tax election? Id., § 2791. Who should conduct an election for a constitutional amendment? Id., § 2785. In connection with section 1119, Kirby's Digest, see also Mansfield's Digest, §§ 1158 and 2695.

The removal of a county site is a local concern over which the county court has exclusive original jurisdiction. 33 Ark. 194.

T. B. Morton, for appellee.

1. When a county court has passed upon a county seat question and rendered judgment thereon, that judgment becomes final at the end of the term, and it has no jurisdiction to modify or change such judgment at a subsequent term. 1 Ark. 497; 2 Ark. 66; 5 Ark. 23; Id. 576; 6 Ark. 92; Id. 292; 10 Ark. 241; Id. 454; 12 Ark. 95; 14 Ark. 203; Id. 568; 22 Ark. 174; 24 Ark. 50; 25 Ark. 212; 33 Ark. 454; 36 Ark. 513; 52 Ark. 316; 60 Ark. 155; 89 Ark. 160; 92 Ark. 388; 27 Ark. 214. The petition did not set up a cause of action within the jurisdiction of the county court. It does not set up whether appellant voted for or against removal, nor in what respect it affected him. There was also a defect of proper parties, both plaintiff and defendant. Kirby's Digest, §§ 5999, 6007, 6008; 15 L.Ed. (U.S.), 500, note.

2. The three judgments of the county court of which complaint is made are not void. 34 Ark. 105; 51 Ark. 34; 53 Ark. 476; 55 Ark. 323; 59 Ark. 483; 83 Ark. 236. If, however, it is held that the statutory requirements as to abstract of title, etc., are jurisdictional, it is contended that those requirements were complied with. The question of title to the designated property, both as to the abstract and deed, is committed to the judicial discretion of the county court. Kirby's Digest, § 1115. The petition sets up the fact that an abstract was filed, and same was filed with the petition, marked as an exhibit. The court had the right to pass upon the facts set up. 55 Ark. 565; Id. 323; 34 Ark. 105; 99 Am. St. Rep. 261; 106 Id. 23; 1 Pet. 328, 7 L.Ed. 164; 46 Ind. 96; 6 Pet. 691, 8 L.Ed. 547. The statute does not require that the deed be filed with the petition, but only that the petition show "the terms and conditions upon which the land can be purchased or donated by or to the county." Kirby's Digest, §§ 1115, 1117.

3. The judgments of June 4, 1908, and of July 21, 1908, were valid. When the court ordered the election, directed that proper notices as required by law should be given thereof and that such election should be governed in all respects by the laws in such cases made and provided, it did all that was required of it. Kirby's Digest, §§ 1117, 1118; 73 Ark. 238. Kirby's Digest, § 1119, not only meant to adopt section 2811, Id., providing that "all elections by the people shall be by ballot," but also to adopt the entire election machinery of the election law. Kirby's Digest, §§ 2763, 2764, 2765, 2766, 2792, 2793, 2800, 2804, 2849, 2850, 2853, 2854; 49 Ark. 227; 55 Ark. 324; 45 Ark. 401. When the returns of the election of July 15, 1908, were laid before the court, they were quasi records, conclusive of the result of the election until overcome by affirmative evidence impeaching their integrity. 50 Ark. 85; 73 Ark. 187; Kirby's Digest, §§ 1121, 1125; 45 Ark. 400. The elimination of Princeton after "for removal" had carried was lawful and proper. 53 Ark. 533; 61 Ark. 477.

MCCULLOCH, C. J. KIRBY, J., not participating.

OPINION

MCCULLOCH, C. J.

Appellant, O. C. Walsh, in the present proceedings instituted by 'him in the county court of Dallas County, attacks the validity of an order of that court for an election upon the question of the removal of the county seat, and also an order of removal made pursuant to the vote at the election. On June 2, 1908, petitions were filed in the county court asking that the county seat be removed from Princeton, one of them asking in favor of Fordyce and the other asking in favor of Carthage. On June 4, 1908, upon consideration of these petitions, the court ordered an election to be held on July 15, 1908. On July 21 the votes were canvassed, and it was found that there was a majority of the votes for removal, but a failure by the majority to select the point of removal, and the court made another order on that day, as provided by statute, for an election to be held on August 29, 1908, to decide which of the two points having received the highest number of votes, Princeton or Fordyce, should have the county seat. The result of the last election was found, upon a canvass of the votes, to be in favor of Fordyce, and an order was made by the county court on October 6, 1908, declaring the result of the election and ordering the removal in accordance therewith. Since that time the courts have been held at the latter place.

In July, 1909, appellant, as a citizen and taxpayer, presented to the county court of Dallas County, sitting at Fordyce, his petition asking that the former orders of the court concerning the removal of the county seat be set aside, alleging that the same were void on account of the court having no jurisdiction to make the same. On the same day appellees, who are also citizens and taxpayers, and who were of the original petitioners who asked for the removal of the county seat, appeared and asked to be made parties, and filed their plea resisting the order prayed for by appellant. The county court made an order in accordance with the prayer of the petition of appellant, declaring the former orders of the court void; and appellees appealed to the circuit court, where, on hearing of the matter, the petition of appellant was dismissed, and the judgment of the county court appealed from was set aside. From this judgment of the circuit court the appellant prayed an appeal to this court.

There are three grounds assigned for the attack on the removal proceedings in the county court. The first is that no abstract of title accompanied the original petition to the court for an election. The statute governing proceedings as to the removal of a county seat reads, in part, as follows:

"Section 1115. Unless for the purpose of the temporary location of county seats in the formation of new counties, it shall be unlawful to establish or change any county seat in this State without the consent of a majority of the qualified voters of the county to be affected by such change, nor until the place or places at which it is proposed to establish or change any county seat shall be fully designated, such designation embracing a complete and intelligible description of the proposed locations, together with an abstract of the title thereto and the terms and conditions upon which the same can be purchased or donated by or to the county. Provided, the county court shall not order the election hereinafter provided for, unless it shall be satisfied that a good and valid title can and will be made to the proposed new locations, or one of them. * * *

"Section 1117. Whenever the qualified voters of any county in this State to the number of one-third thereof shall join in the petition to the county court of such county for the change or removal of the county seat, embodying in the petition the designation and abstract of title and the terms and conditions of the sale or donation, as provided for and required by section 1115, the county court shall order an election to be held at the several voting places in the county, directing that the proposition of the petitioners for the change or removal shall be submitted to the qualified voters."

It is alleged in appellant's petition that the only abstract of title, or what purports to be an abstract of title, filed with the original petition for removal bears the following certificate: "I hereby certify that in April, 1907, I carefully examined the records in the office of the county circuit clerk and...