The cases cited by DPBS allow for an action to void an election on this basis. In Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937), Phillips brought suit to enjoin disbursement of revenues collected under an initiative act. The challengers questioned the existence of the act authorizing the election.
In another cases where the voters have received insufficient notice, elections have also been voided. Phillips v. Mathews, 203 Ark. 100, 155 S.W.2d 716 (1941); see also Phillips v. Rothrock, 194 Ark. 945, 110 S.W. 26 (1937). It must also be noted that although the election in the case was not voided, in Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), this court discussed the alleged failure to comply with absentee voting laws, but declined to void the election, noting that elections will not be voided where the wrong does not render the result uncertain.
The trial court's ruling is not in conflict with our decision in Glover v. Russell, 260 Ark. 609, 542 S.W.2d 751 (1976), where a chancellor's decision invalidating petitions filed 55 days before an election was upheld. In this regard, see also Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937). Further, we have held that though a filing mark is evidence of the filing of the document, the mark in and of itself is not an essential element of the act.
Obviously, this Amendment 7 issue bears on whether petitioners/appellants can be held in contempt when that part of the Act could be unconstitutional and any election held under the Act could be a nullity. See Phillips v. Rothrock, 194 Ark. 945, 109 S.W.2d 1254 (1937). Amendment 7 also requires such initiative petitions to be filed not less than sixty days nor more than ninety days before the regular election — which in the instant case made the respondents/appellees' petition premature.
[A]ll provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void. Phillips v. Rothrock, 194 Ark. 945, 952-953, 110 S.W.2d 26, 30 (1937); quoted with approval, Henard v. St. Francis Election Committee, 301 Ark. at 462, 784 S.W.2d at 600; see also Swanberg v. Tart, supra. Accordingly, the requirement for a county judge's election order would be directory and not mandatory after the election takes place.
" 29 C.J.S. Elections § 67 (1965). Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937). "It is the function of the legislature to prescribe the conditions of the elective process, and it is the obligation of the courts to see that they are complied with.
Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971). In response, appellee contends that this is not an election contest, but an action on review to prevent an administrative agency from enforcing the results of an election held on November, 1956 which was null and void. Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937). We agree to this extent — this is a proceeding to review an administrative agency, brought expressly under the Administrative Procedure Act, but that very reason compels us to a different result.
I also suggest that the majority has disregarded the presumption of constitutionality that attends every act of the General Assembly. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. den. 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977); Gibbs v. State, 255 Ark. 997, 504 S.W.2d 719; Hooker v. Parkin, 235 Ark. 218, 357 S.W.2d 534; Neal v. Still, 248 Ark. 1132, 455 S.W.2d 921; Hickenbottom v. McCain, 207 Ark. 485, 181 S.W.2d 226, cert. den. 323 U.S. 777, 65 S.Ct. 189, 89 L.Ed. 621 (1944); Hardin v. Port Smith Couch Bedding Co., 202 Ark. 814, 152 S.W.2d 1015; Miller Levee District No. 2 v. Evers, 200 Ark. 53, 137 S.W.2d 915; Ward v. Bailey, 198 Ark. 27, 127 S.W.2d 272; Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26; Easley v. Patterson, 142 Ark. 52, 218 S.W. 381; Dabbs v. State, 39 Ark. 353, 43 Am.Rep. 275. In order to put the matter in proper perspective, I will first outline the factual background.
It is true that in some election contests we have held all provisions of the election laws are mandatory if enforcement is sought before election in a direct proceeding for that purpose and, generally, after election all should be held directory only in support of the result. McKenzie v. City of Dewitt, 196 Ark. 1115, 121 S.W.2d 71 (1938); Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26 (1937); Cowling v. City of Foreman, 238 Ark. 677, 384 S.W.2d 251 (1964). However, strict compliance of the notice of publication has never been required where to do so would place it in the power of a ministerial officer to prevent the holding of a legal election.
In the first place, we must and should presume that any officer of the state, and especially the chief of the executive branch of the government, will act lawfully, correctly, in good faith and in sincerity of purpose in the execution of his duties. Rose v. Ford, 2 Ark. 26; Buxton v. City of Nashville, 132 Ark. 511, 201 S.W. 512; Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586; Phillips v. Rothrock, 194 Ark. 945, 110 S.W.2d 26; Matthews v. Bailey, 198 Ark. 703, 130 S.W.2d 1006; Beaumont v. Faubus, 239 Ark. 801, 394 S.W.2d 478. Furthermore, summary action is not consistent with removal after a hearing for which there is express provision in the section itself.