Wilson v. Luck
| Decision Date | 06 January 1941 |
| Docket Number | 4-6251 |
| Citation | 146 S.W.2d 696,201 Ark. 594 |
| Parties | WILSON v. LUCK |
| Court | Arkansas Supreme Court |
Appeal from Hempstead Circuit Court; Dexter Bush, Judge; reversed.
Judgment reversed and cause remanded.
Steve Carrigan and Steel & Steel, for appellant.
John P Vesey and W. S. Atkins, for appellee.
Appellant Wilson and appellee Luck were opposing candidates for the nomination of the Democratic party for the office of county judge of Hempstead county in the primary election held in that county on August 27, 1940. On the face of the returns Wilson appeared to have won the nomination by a majority of 3 votes. At the request of Luck there was a recount of the votes cast in one township the result of which recount was that Luck had a majority of 9 votes. Wilson then asked that the votes of certain other townships be recounted which request was denied. Whereupon Luck was declared the nominee, and his nomination was duly certified by the Democratic County Central Committee. This action was taken August 31, 1940.
On September 7, 1940, Wilson filed suit to contest this nomination; but it appears that no summons was issued on his complaint until September 19, 1940. The summons was served and returned to and filed with the clerk of the circuit court on September 20, 1940. It appears, therefore, that, under the authority of the case of Matthews v. Warfield, ante, p. 296, 144 S.W.2d 22, and the cases there cited, the suit might have been dismissed for failure to comply with the provisions of § 4738, Pope's Digest, but for the proceedings in this case presently to be stated.
The complaint contained many allegations as to illegal votes having been counted for Luck, the most important of which was that many persons were permitted to vote whose names did not appear in the official list of voters prepared under the authority and direction of § 4696, Pope's Digest, and who had failed to furnish other evidence of their right to vote, as provided by 4745, Pope's Digest.
A large number of votes were challenged upon the ground that persons enrolled in Civilian Conservation Corps camps were permitted to vote who, though they had resided in the camps for more than six months before the election, had never become citizens of Hempstead county.
Many other votes were challenged upon grounds which will not be discussed, as they relate to matters the law of which has been definitely settled by many decisions of this court. The eligibility to vote of this general class of persons will depend upon the application of the law to the facts as developed in regard to each particular voter.
Without raising or reserving the question of the sufficiency of the service, a demurrer to the complaint was filed on September 16 upon the grounds: (1) that the plaintiff's complaint did not state a cause of action, and (2) that the plaintiff had failed to file a bond for costs.
Without reserving or saving the question of the sufficiency of the service, a motion to dismiss the cause of action was filed September 23, 1940, upon the ground that the plaintiff had not filed a bond for costs.
On the same day there was also filed a motion to dismiss, for the reason "That the plaintiff did not have a summons issued until the 19th day of September, 1940, which said date was more than ten days after the certification complained of in plaintiff's complaint, and which certification applied to only one county--Hempstead county."
The judgment, from which is this appeal, recites that the demurrer had previously been overruled, as had also the motion to dismiss for the want of a bond for costs, and, likewise, "the motion to dismiss on the ground that the plaintiff relies upon the printed list of poll tax payers for the year 1938, and that said list is invalid and was not prepared as prescribed by law. . . ."
An answer was filed October 8, 1940, which did not question the time of filing the complaint or the sufficiency of the service of process thereon. In addition to denying the material allegations of the complaint, a cross-complaint was filed, containing as many--and, perhaps, more--allegations as to illegal and fraudulent votes which were alleged to have been cast for the plaintiff Wilson.
A large number of witnesses were examined in support of the allegations of the complaint, and we have before us a voluminous record of their testimony. According to this record, many illegal votes were cast. The plaintiff relied upon the official list of voters as evidencing prima facie the right to vote, and questioned the votes of all persons whose names did not appear on this list. It developed in the taking of the testimony that 190 persons had paid their poll taxes whose names did not appear in the official printed list of voters.
The original of the list of persons who had paid poll taxes, which the collector had furnished to and filed with the county clerk, had been misplaced, and could not be found, due, apparently, to the fact that all official records had been recently removed from Washington, the old county seat, to Hope, the new county seat. But this list of voters had been recorded, as required by § 4696, Pope's Digest, and that record was available.
The court was asked to find--and did find--that this printed list of voters had been prepared and published in substantial compliance with the law; but it was the opinion of the court that this list had lost its prima facie verity because of the omission therefrom of the names of the 190 persons who had paid poll taxes, as shown by the records of the collector's office. Testimony was offered to the effect that many persons paid poll taxes who had not assessed their poll taxes; but it is not clear how many of these were included in the list of 190 persons who had paid poll taxes, but whose names did not appear in the printed list of voters.
In making his proof, the plaintiff Wilson had relied upon the prima facie verity of the printed list of voters; but a motion to dismiss was filed when the plaintiff rested his case, upon the ground that the omission of the 190 names destroyed the presumptive verity of the list. It was stipulated that the printed list contained the names of 5,109 persons who had paid poll taxes. When the presiding judge indicated his intention to sustain the motion to dismiss, counsel for contestant stated: ". . . . If the court is now of the opinion that the printed list fails, we ask permission, at this time, to introduce additional testimony regarding the qualifications of these voters. . . ." When asked, "How long will it take?" counsel answered: "All the rest of the day." This request was not then passed upon, and a recess was taken until 1:30 in the afternoon. When the court reconvened in the afternoon, counsel for contestant asked the court to declare the law to be "that the mere fact that approximately 190 names who appear to have paid a poll tax was omitted from the list by either the collector or the clerk, or the printer, would not affect its validity and would not affect the presumptive right of 5,109 persons whose names do appear upon the list to vote." Upon this request the court ruled as follows:
After making this declaration of law the court proceeded to say: And the cause of action was dismissed, and from that judgment is this appeal. Exceptions were duly saved to this ruling, which was properly assigned as error in the motion for a new trial.
It appears, from what has been said, that the suit was not dismissed for failure to comply with the provisions of § 4738, Pope's Digest, and in our opinion it should not now be dismissed for that reason. As has been said, an answer was filed, which did not raise or reserve the question of the sufficiency of the service; and before the motion to dismiss on...
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