Wheat v. Smith

• Decision Date: 18 February 1888
• Citation: 7 S.W. 161,50 Ark. 266
• Parties: WHEAT v. SMITH
• Court: Arkansas Supreme Court

7 S.W. 161

50 Ark. 266

WHEAT v. SMITH

Supreme Court of Arkansas

February 18, 1888

APPEAL from Lafayette Circuit Court, C. E. MITCHEL, Judge.

Judgment affirmed.

Byrne & Gordon and T. E. Webber, for appellant.

1. The circuit court has no jurisdiction to try the case. The complaint was under Ch. 51 Mansf. Dig., sec. 6466, Ch. 12 Civil Code, which superseded sec. 90 Ch. 62 Gould's Dig.; 28 Ark. 451. The constitution of 1874 gives exclusive original jurisdiction to the comity courts in matters of local concern. Art. 7, sec. 28. The circuit court has jurisdiction in contest cases by appeal only. Ib., art. 7 sec. 52. The original jurisdiction is in the county court. Acts 18745, p. 106, sec. 71; 28 Ark. 451.

2. This was a contest substantially for the office, (28 Ark. 451) and the pre-requisites for contest were not complied with. There was no notice; the action was not brought within six months. Mansf. Dig., sees. 2719-2722.

3. Defendant was entitled to a jury trial, but the court tried the case summarily, as in cases of contest. Mansf. Dig., sec. 2728; art. 2, sec. 7, Const. 1874.

4. Testimony, as to the vote, of witnesses "to the best of their recollection," and as to what they thought about the vote, clearly inadmissible. It was a mere matter of opinion on the part of witnesses, without showing that the best evidence was not obtainable.

5. No proclamation was had as provided by sec. 2660 Mansf. Dig., though there was a newspaper published in the county, and the election was not legal. McCrary Elections, (2d Ed.), sec. 120; 11 Cal. 49; McCrary Elec., sec. 118; Cooly Const., Lim., (5th Ed.), p. 759 and note 2. This was a special election, and notice was not brought home to the great body of the electors. McCrary Elec., sees. 135-6.

6. Appellee was not a resident citizen of Lafayette county, Ark. or qualified to hold the office, not having resided in the state twelve months, county six months and precinct one month next preceding the election.

7. Appellant was not a usurper within the meaning of the statute. Webst. Dict. He neither seized nor held possession by force or without right. 28 Ark. 451.

Scott & Jones, for appellee.

1. This was not a contest, but a suit for a recovery of the office. Wheat does not claim to have been elected at the election in question. Smith was entitled to the office from the fact that he received the greatest number of votes at the special election, and sues for it under ch. 151 Mansf. Dig. in the circuit court. 17 Ark. 407; 2 S.W. 349. Ch. 151 Mansf. Dig. is ch. 12 Civil Code, and, as decided in 28 Ark. 451, a contest could be in effect tried before the circuit court, and that one holding a commission might be a usurper.

The statutory remedy of a contest does not oust the jurisdiction on information in the nature of quo warranto. 28 Cal. 123; Brightly's Lead. Cases, 480.

2. Appellant was not entitled to a jury. There was no claim for fees or money. 26 Ark. 281; Gantt's Dig., sec. 4642; 40 Ark. 290; 64 Mo. 415.

3. The testimony of Morgan Butler and others, as to the result of the vote, was properly admitted. The original and duplicate poll books were missing, and the judges could only testify from recollection.

4. Failure to publish the notice in the newspaper did not invalidate the election. 13 N.Y. 350; 12 Mich. 508; 20 Wise., 234; 22 Id., 363; 10 Iowa 218; 19 Ind. 356; 43 Ark. 62.

5. Appellee was qualified to hold the office.

OPINION

COCKRILL, C, J.

B. B. Wheat was elected circuit clerk of Lafayette county at the general election in 1884 for a term of two years, and at the time of the institution of this action against him, in July, 1887, he was holding over without claiming under a subsequent election. On the date mentioned the appellee, V. V. Smith, instituted proceedings in the Lafayette circuit court under the "Usurpation of Office Act," to oust Wheat and recover the office held by him. The complaint alleged in effect, that at a special election to fill a vacancy in the office of circuit clerk of Lafayette county, duly and legally held on the 8th of January, 1887, the plaintiff received a majority of the votes cast; that regular and complete returns of the election were made and delivered by the proper election officers to the county clerk, and that said returns showed that plaintiff received a majority of all the votes cast for said office; that all the election returns--including the poll books and ballots--were abstracted from the office of the county clerk and carried away, and that a canvass of them was thereby prevented; that no certificate of the result of said election had been delivered to the secretary, of state, and that no commission had ever been issued to any one; that at the time of the election and filing of the complaint the plaintiff possessed the qualifications required for holding said office; that the defendant, Wheat, was merely holding over until his successor should qualify; and prayed that he be inducted into the office.

Wheat filed a demurrer to the complaint, setting forth that the circuit court was without jurisdiction to try the cause, and that no cause of action was stated. The court overruled the demurrer, and Wheat, who has appealed, assigns this as error.

1. The contention of the appellant upon this feature of the case is, that the exclusive jurisdiction over all contests for local offices is vested in the county courts, and that the circuit court was, therefore, without power to investigate the matters set forth in the complaint. This necessitates an inquiry into the object and meaning of the act under which the action was instituted.

It was enacted in 1868 as chapter 12 of the Code of Civil Procedure (Mansf. Dig., chapter 151). The first section is as follows: "In lieu of the writs of scire facias and quo warranto, or of an information in the nature of a quo warranto, actions by proceedings at law may be brought to vacate or repeal charters, and prevent the usurpation of an office or franchise." The next section relates to the vacation of charters. Section 6466, under which this action is brought, provides that: "Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise." A subsequent section authorizes the court trying the action to adjudge the office to the plaintiff, and to induct him into it. Sec. 6470.

The design of these provisions was to enlarge the remedy formerly afforded by information in the nature of quo warranto. Wood on Mandamus, p. 224 et seq.; State ex rel. v. Messmore, 14 Wis. 115; Patterson v. Miller, 59 Ky. 493, 2 Met. 493, 497; People ex rel. v. Thacher, 55 N.Y. 525. That intention is expressed in the first section and is manifested by the nature of the remedy provided in the others. It opens the way for the person who would have been the relator in an action by the state under the common law practice, to institute the proceeding to test his title to an office in his own name, without leave of court, or the intervention of the state or one of her officials, as a party. The remedy thus afforded, as was decided in Lambert v. Gallagher, 28 Ark. 451, was broad enough to include the ordinary election contest for office; and it was held in that case that the provisions conferred upon the circuit court jurisdiction to hear and determine a contested election controversy. But since that decision exclusive original jurisdiction in the matter of election contests has been conferred upon the county courts. Mansf. Dig., sec. 2722. See Willeford v. State, 43 Ark. 62. It is argued that this jurisdiction is inconsistent with the power asserted by the circuit court in this cane. The contention is too broad. The act under consideration is not repealed. Actions have been maintained under it and judgments rendered therein for the recover of offices, sustained by this court since the change in the law mentioned above. Falconer v. Shores, 37 Ark. 386; Elsey v. Falconer, 42 Ark. 117; Alston v. Falconer, Ib. 114. It is operative in so far an it is not inconsistent with the jurisdiction conferred on the county courts. The plaintiff's action is not a proceeding to contest an election within the meaning of the statute governing contested elections. Williamson v. Lane, 52 Tex. 335; State ex rel. v. Swann, 80 Tenn. 30, 12 Lea, 30. It is not a contest about the fairness of the election at all. It is a suit for the possession of an office to which, as the complaint alleges, the election returns show the plaintiff has been elected. If there was a valid election, as the complaint alleged, and the returns made to the county clerk showed that Smith was elected to fill the vacancy, any competitor for the office could have entered his contest in the county court as pointed out by statute, to prove that the returns did not express the will of the electors. The loss or destruction of the returns did not prevent a contest. The statute requires the institution of the proceeding to contest within a limited time, regardless of the action or non-action of the canvassing board. Mansf. Dig., sec. 2723; Bowen v. Hixon, 45 Mo. 340.

But there was nothing for Smith to contest. The re turns showed a state of facts satisfactory to him, and he had the legal right to stand upon the prima facie case thus made for him. People v. Minck, 21 N.Y. 539; ex parte Smith, 8 S.C. 495.

But it is said that the plaintiff had not qualified, that Wheat was, therefore, not a usurper, and that the action would not lie. It is necessary to recur to the object of the act to determine by and against whom an action under it may be maintained. The remedy being a...