Opinion
No. 4-2857
Opinion delivered October 31, 1932.
1. ELECTIONS — LIST OF POLL TAXPAYERS. — A printed list of poll taxpayers, not certified by the county collector in person, is not a substantial compliance with Crawford Moses' Dig., 3740. 2. ELECTIONS — LIST OF POLL TAXPAYERS. — Failure to furnish an official list of poll taxpayers to election officials would not invalidate a primary election otherwise regular, nor destroy the court's jurisdiction to hear and determine contests thereof. 3. ELECTIONS — PRESUMPTION AS TO RETURNS. — Official election returns are quasi records and presumed regular until the presumption is overcome by competent evidence. 4. ELECTIONS — REGULARITY OF BALLOTS. — Ballots cast by voters and returned by the proper officials are presumed to be regular. 5. ELECTIONS — BURDEN OF PROOF. — One who contests an election must prove that he received a majority of all the legal ballots cast in the election. 6. APPEAL AND ERROR — QUESTION RAISED. — Where a demurrer to the complaint in a primary election contest and a motion to dismiss for want of jurisdiction were properly overruled, an appeal from such ruling raises no question as to the correctness of the court's subsequent order declaring the contestant entitled to the nomination.
Appeal from Logan Circuit Court, Northern District; J. O. Kincannon, Judge; affirmed.
Rhyne Shaw and Cochran Arnett, for appellant.
W. L. Kincannon, B. F. Donathan and G. L. Grant, for appellee.
STATEMENT BY THE COURT.
This appeal is from a judgment in a primary election contest, the cases being consolidated for a hearing, holding the contestants, appellees herein, entitled to the nominations for circuit clerk and county treasurer of Logan County, respectively, as against appellants, Maude Connelley, duly certified by the county central committee as nominated to the office of circuit clerk, and A. B. Hardwicke, duly certified by said committee as nominated county treasurer, in the primary election held on August 9, 1932.
The complaint in the Connelley case alleged the qualifications of Vester as a candidate, his compliance with all the requirements of the law to become a candidate, that he was opposed by Maude Connelley and M. V. B. Harris, the only opposing candidates or persons who received any votes for nomination to that office, and that the county central committee canvassed the returns of the primary election and declared that the candidates, respectively, had each received the number of votes as follows:
Maude Connelley ................ 1457 M. V. B. Harris ................ 1114 Lucien E. Vester ............... 1397
That said committee certified the result accordingly, and that Maude Connelley had received a plurality of the votes cast in the primary election for Democratic nomination for the office of circuit clerk.
It further alleged the casting of illegal votes for said Maude Connelley and M. V. B. Harris against appellee, and that he had received a plurality of the Democratic votes cast in the election.
It specified the particular townships in which votes had been cast by persons not qualified, attached a list of said persons with the name of the precinct in which they voted as exhibits to the complaint, alleging that the illegal votes were cast against appellee and counted for appellants, etc. That certain persons in various other townships, numbering 41, were minors not entitled to vote, and that in certain townships 235 persons who had paid poll tax were not qualified because their names were added to the tax list by the collector or some other unauthorized person and not by the county clerk, and they had not been assessed by the assessor nor by the clerk.
Alleged further that one Omer Smith bought and paid for a large number of poll tax receipts for the purpose of influencing the vote of certain persons in the election; that the collector issued the receipts in the names of divers persons; that they were not paid for by the persons in whose names they were issued, who had voted under said receipts against the appellee and for his opponents, etc.
Other illegalities were alleged, and that, if the illegal votes were cast out and expunged from the records, appellee would have received a plurality of the legal votes to the number of 750.
A demurrer was filed by appellant to the complaint which, it was alleged, showed on its face that the court was without jurisdiction to try the cause, since the complaint failed to allege that the Democratic primary held was a legal election; that it failed to allege that the collector, county clerk and election commissioners complied with the laws in holding the election; that it did not show on its face that the plaintiff had a right to maintain the action, and that the court had jurisdiction of same. Certain paragraphs of the complaint were specifically demurred to, and the whole of it as not stating facts sufficient to constitute a cause of action.
Without waiving the demurrer, appellant moved to dismiss the complaint and strike it from the files, alleging that plaintiff was not entitled to maintain the action because no list of the voters had been filed with the county clerk by the collector and published for use of the officials in the primary election as required by the statutes (3740, Crawford Moses' Digest, as amended by acts of the Legislature of 1931, p. 406).
It was further alleged that 3777, Crawford Moses' Digest, had not been followed in allowing persons to vote, and requiring them to prove their qualifications otherwise than by the printed list, and that no special list of persons so voting had been made or kept as the law requires. That the judges and clerks of the election did not require any person, who voted at the precinct or offered to vote, to exhibit his poll tax receipt, and did not require all of said persons to deliver a certified copy of said poll tax receipts to said judges and clerks of the election as required by law; and that said judges and clerks did not require any persons offering to vote at said election, who had come of age since the time of assessing taxes next preceding the election, to make affidavit that they were entitled to vote, and that on account of these things and for other reasons, "there was no legal primary election held on the 9th day of August in the county of Logan, State of Arkansas."
It was alleged that Maude Connelley had been duly found and declared to be the nominee of the Democratic party for the office of circuit clerk, held the duly executed and delivered certificate as such nominee, and plaintiff has no right under the law to contest such nomination, and this court has no power to proceed with this hearing and to a determination of any matters with reference to such contest.
A like demurrer and motion was filed in the case of Donathan v. Hardwicke.
The testimony introduced on the motion to dismiss showed that the collector of the county made a list of all persons who paid their poll tax in 1932, completed it upon the night of the 18th of July; that the candidates were all hurrying to get a list and that the newspaper man was in the office to get it for publication, and the collector told them that he had the list up till Saturday night already prepared, that he would prepare another list from then to the closing time of tax paying and would put his affidavit on that. He prepared the other list, but forgot to certify it, and neither did he certify the first list that he made for the county clerk, which he delivered to the printer. The county clerk never had the list in his possession, and the list printed did not have his nor the county clerk's certificate on it, and the certificate thereon was unauthorized. Said list however, was correct as he had checked it, and it was the list used by the judges and clerks in the election. Some one told the printer to use the old certificate upon the last printed list before the election, changing the dates to conform, which he did; and the list so made was printed and sent to the judges and clerks for use in the election. This list was offered in evidence.
The court ordered the ballot boxes opened and the committee to recount all the votes and held, in accordance with the report of the committee that the plurality of the legal votes, as shown by its report, had been cast for the contestants, and rendered judgment that they had been nominated accordingly and were entitled to be certified as the nominees.
(after stating the facts). Appellants insist that they appeal only from the judgment of the circuit court overruling their demurrers, and denying their motions to dismiss the complaints because of the lack of jurisdiction of the court to hear and determine the contests, since it was shown no legal list of the qualified electors had been furnished the officials for use in holding the primary election as the law required, nor had any special list of the voters been made by the judges and clerks of those voting whose names did not appear upon a legal list of voters.
The court erroneously held that the printed list furnished the officials holding the primary election was a substantial compliance with the law relating thereto, but, if no official list had been furnished, or even if no list had been furnished at all for use by the officials in the conduct of the election, it would not have invalidated such election, otherwise regularly held, nor destroyed the jurisdiction of the court to hear and determine contests arising out of such election. Morrow v. Strait, ante p. 384.
The court's latest pronouncement on the subject appears in Morrow v. Strait, supra, wherein it is held that the official returns of the election are prima facie correct, are quasi records standing with all the force of presumptive regularity until overcome by competent evidence, and the burden of showing that they are not correct rests upon the person who alleges that fact, as was held in Tucker v. Meroney, 182 Ark. 681, 32 S.W.2d 631.
In Morrow v. Strait, supra, it was further said:
"The official list of voters, which 3740, Crawford Moses' Digest, as amended by the act of 1921, supra, requires the collector and county clerk to prepare, is not evidence of an elector's right to vote unless the list has been authenticated by the affidavit of the collector in person. The list of voters which the county clerk is required by 3740, Crawford Moses' Digest, to have printed can be made only from a list verified by the affidavit of the collector and thereafter filed with the county clerk. But it must be first authenticated by the affidavit of the collector, and the county clerk has no authority to copy the printed list unless and until it is so authenticated. Cain v. McGregor, 182 Ark. 633, 32 S.W.2d 319.
"Therefore any list of voters, not based upon an authenticated list filed with the county clerk by the collector, furnishes no evidence of the possession of a poll tax receipt, although the list has been certified by the clerk."
The court did not err in overruling the motion to dismiss the complaint, and, since the official returns of the election are quasi records and stand with all the force of presumptive regularity until overcome by competent evidence, all the ballots cast by the voters and returned by the proper officials are presumptively regular, in order to succeed, the contestant must prove that he received a majority of all the legal ballots cast at the election, and the court's action in declaring the appellee regularly nominated is not here for review, not being appealed from.
The judgment is accordingly affirmed.