Whittaker v. Watson

• Decision Date: 19 January 1901
• Citation: 60 S.W. 652,68 Ark. 555
• Parties: WHITTAKER v. WATSON
• Court: Arkansas Supreme Court

60 S.W. 652

68 Ark. 555

WHITTAKER v. WATSON

Supreme Court of Arkansas

January 19, 1901

Appeal from Jackson Circuit Court, RICHARD H. POWELL, Judge.

Judgment affirmed.

Gustave Jones, for appellant.

The state was not a proper party, and the demurrer for misjoinder should have been sustained. 54 Ark. 468. The filing of the bond required by Sand. & H. Dig., §§ 2702-3, was a prerequisite to the issuance of summons. 5 Ark. 457; 6 Ark 408; 3 Ark. 501; 17 Ark. 286; 30 Ark. 359. The circuit court had no jurisdiction of a contest for a municipal office. Cf. Const. Ark., § 24, art. 19; 27 S.W. 123; 33 Col. 581.

M. M Stuckey, J. M. Stayton and Phillips & Campbell, for appellees.

The circuit court had jurisdiction. 66 Ark. 201. Contests for municipal offices are not provided for expressly. Cf. Sand. & H. Dig., §§ 2693-2719. Hence the remedy is under the "usurpation act" (Sand. & H. Dig., Ch. 153), in lieu of the writs of scire facias and quo warranto, which would have been the remedy at common law. Const. Ark., art 7, § 11; Paine, El. § 868; McCrary, El. § 369; 2 Dill, Mun. Corp. § 892; 6 Am. & Eng. Enc. Law, 386; 50 Ark. 266; 84 Am. Dec. 242. The circuit court's jurisdiction is broad enough to include the present case. 50 Ark. 271; 28 Ark. 451. The testimony of the tax collector was competent. 1 Greenleaf, Ev. § 436. There is no error in the court's declarations of law. The court's first declaration of law was correct. McCrary, Elections, §§ 369, 389, 381, 425; 66 Ark. 201. And so was the second. 6 Am. & Eng. Enc. Law, 352; Paine, Elections, § 513; 54 Ark. 409. Poll taxes cannot be paid by a candidate to procure the vote of the one for whom payment is made, so as to enable him to vote. 5 Met. 162. Suffrage is a grant from the state. 62 Am. St. 487; 29 Am. Rep. 591; 97 Am. Dec. 263. Such votes are void. 17 Am. Rep. 485; 36 id. 222; 20 id. 746; 37 id. 417. The burden was on appellant to prove his authority. 2 Dill. Mun. Corp. § 893; 1 Ark. 513; 3 Ark. 570; 27 Ark. 176; McCrary, El. § 459; 50 Ark. 85.

OPINION

BATTLE, J.

This action was instituted by the state of Arkansas and Thomas J. Watson against Franklin Whittaker, in the Jackson circuit court, to contest the election of the defendant to the office of mayor of the city of Newport, and to recover that office for Watson. They alleged in their complaint and the amendments thereof that Watson is a citizen of Newport, and a qualified elector; that at the election held at Newport on the fifth day of April, 1898, there were cast for the office of mayor of said city 507 votes; that Watson, Whittaker and Thomas Ward, being candidates for that office, received of said votes as follows: Watson, 216; Whittaker, 218; and Ward, 73; that Whittaker, having received the greatest number of votes, as shown by the returns, received the certificate of election; that Whittaker was not legally elected, because of the votes cast and counted for him forty-four were cast by persons who had not paid the poll tax and were not entitled to vote, eight were cast by persons who were nonresidents of the city at the time of the election, and three by persons who had been convicted of larceny; that Watson received of said votes 216, which was the greatest number of legal votes cast for any one for the office of mayor at that election, and was duly elected; and that, notwithstanding this fact, Whittaker has usurped the office, and excluded Watson therefrom. And plaintiffs asked that the election be inquired into, and that the legal votes be counted, and that Watson be declared elected, and that the defendant be ousted from the office, and for other relief.

The defendant answered, and denied that Watson was elected, and alleged that he was, and that Watson had received of the votes cast at the election fourteen which were cast by persons who had not paid their poll tax and were not qualified electors, twenty-eight of which were cast by non-residents of the city, and one cast by a person convicted of a felony. After hearing the evidence, the court found, in part,as follows:

"1. That there was a regular election duly held in the city of Newport, Jackson county, Arkansas,on Tuesday,the 5th day of April, 1898, for the purpose of electing a mayor and other officers of said city* * * for the ensuing term of two years, and at said election Thomas J. Watson, Franklin Whittaker and T. T.Ward were candidates for mayor, * * * and were the only persons for whom votes were cast for the office of mayor.

"2. That the commissioners of election for Jackson county on the returns made to them by the judges and clerks of said election, declared that Franklin Whittaker had received 218 votes for the office of mayor of the city of Newport, that T. J. Watson had received 216 votes, * * * and T. T. Ward had received 73 votes. * * * And that said commissioners issued a certificate of election to said Franklin Whittaker. Whereupon he received a commission as mayor of said city, and thereupon assumed to exercise said office of mayor of said city, and was prior to and at the time of the institution of this proceeding, and is now, exercising said office." And it is further found that Whittaker received at said election for said office 156 legal votes and no more, and Watson 197--41 more than were received by the defendant, and 124 more than Ward; and rendered judgment in favor of Watson for the office; and the defendant appealed.

This action is based upon chapter 153 of Sandels & Hill's Digest, the object of which is to provide a remedy for usurpation of office or franchise. The statutes and laws of this state do not provide for the contests of elections for mayor in any manner except as provided in the chapter named. No other court being vested with the right to hear and determine such contests, the circuit court has jurisdiction to do so; and chapter 153 of Sand. & H. Dig. furnishes a remedy. Lambert v. Gallagher, 28 Ark. 451; Payne v. Rittman, 66 Ark. 201, 49 S.W. 814; McCrary, Elections (4th Ed.) 369; 2 Dillon, Municipal Corporations (4th Ed.) § 892.

Appellant insists that there was a misjoinder of parties plaintiff, because Sand. & H. Dig., § 7366, 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." While it authorizes either party to institute the action, there is nothing in it prohibiting both from doing so. Either being authorized to do so, we see no reason why both cannot join in bringing the action, or how the defendant can be prejudiced by such joinder.

Many persons voted for the appellant for mayor at the election in question who had not paid their poll taxes, or previously requested or subsequently undertaken to reimburse those who had done so. ...