Gower v. Johnson

Hart, C. J., (after stating the facts). The judgment of the circuit court was correct. Under our previous decisions construing our primary election statute, the right to contest a primary election is a statutory proceeding, the purpose of which is to furnish a summary remedy and to secure a speedy trial. The provision requiring the contest to be filed within ten days has been held to be mandatory and jurisdictional. If the contest is not filed within ten days after certification of the nomination complained of, the failure to institute the contest within that time is fatal to the right of the contestant. Hill v. Williams, 165 Ark. 421, 264 S. W. 964; and Storey V. Looney, 165 Ark. 455, 265 S. W. 51. As was said by the Supreme Court of the United States in Walsh v. Mayer, 111 U. S. 31: “The provisions requiring it to be asserted in a particular mode and within a fixed time are conditions and qualifications attached to the right itself, and do not form part of the law of the remedy. If it is not asserted within the limited period, it ceases to exist, and cannot be claimed or enforced in any form. ’ ’ The allegations of the original complaint were too .general. It was not stated that one of the candidates received a plurality of votes at the election or that they were the only two candidates voted upon at said election for sheriff, or that the plaintiff received a majorty of the votes cast for that office. Hence the court properly sustained a demurrer to it. The statute under consideration gives both the right to contest and the remedy of the contestant, and he must bring himself strictly within the statute by stating specifically the grounds upon which he contested the election; and his complaint, which merely stated his conclusion in the premises, was properly held to be subject to demurrer. The amendment was not filed within the time required by the statute, and, for that reason, the court properly refused to consider it. Bland v. Benton, 171 Ark. 805, 286 S. W. 976. Under the statute, the contestant is limited to the grounds of contest set out in his original complaint, and these grounds cannot be enlarged by subsequent amendment not made within the time- required by the statute for contesting. It follows from the views we have expressed that the judgment appealed from must be affirmed.