Stephens v. O'Neel

MoHaNey, Justice. Appellant and appellee were rival candidates, in the democratic primary election held on August 13, 1946, for nomination to the office of circuit clerk and recorder of Lincoln county. The democratic county central committee cast up the election returns and found appellant had received 1,019 votes and appellee had received 1,036 votes, or a majority of 17 votes for appellee, who was accordingly certified on Aug-gust 16,1946, as the party nominee. Appellant, on August 26, 1946, within the statutory period of ten days allowed for this purpose, filed his action to contest the certificate of nomination issued to appellee, the grounds of which are unimportant here. Attached to this complaint was an affidavit, captioned “Qualified Electors’ Statutory Affidavit,” as required by § 4738 of Pope’s Digest, purporting to be signed by ten qualified electors who stated that the facts alleged in the complaint were true and correct to the best of their knowledge and belief. Thereafter, on August 30th,. appellee filed his motion to dismiss the complaint on the ground, among others, that the signers of the affidavit were not qualified electors. On September 11, the court heard the evidence on the motion to dismiss, found that one of the affiants, J. E. Moore, was not a qualified elector, and dismissed the action. This appeal is from that order. It is undisputed in this record, in fact it is conceded by appellant, that the affiant, J. E. Moore, made no assessment of his property or poll in 1944. An assessment was made by James E. Moore, a nephew of the affiant-, on which, by mistake of both him and the collector, the affiant was permitted to pay taxes in 1945, and a poll tax receipt was issued to him. The affiant admitted that the assessment on file signed by James E. Moore was not his — that it was not his signature. While he thought he had assessed, there was no evidence of it on file with the assessor-. We liave many times held that, to be a qualified elector one must both assess and pay his poll tax in the manner provided by law. In fact it is so declared by statute, § 4739 of Pope’s Digest, being § 6 of Act 123 of 1935, the last sentence of which provides: ‘ ‘ Qualified elector is hereby construed to mean any person who is entitled to vote in said election or has assessed and paid a poll tax as required by law.” We think the language “any person who is entitled to vote in said election” has reference to persons who have come of age since the last preceding assessing time before the election. All other-s, to be qualified electors, must have “assessed and paid a poll tax as required by law. ’ ’ Such is the plain and unambiguous language of the statute. But we so held prior to the enactment of the statute. In 1932, in the cases of Collins v. Jones and Burrow v. Watson, both decided in a single opinion, 186 Ark. 442, 54 S. W. 2d 400, we said: “It is not only settled that the law applies alike to both men and women in regard to the assessment and payment .of poll taxes as a qualification to vote, but it has also been several times decided that neither a man nor a woman can become an elector without being assessed as required by law (unless they have come of age since the assessment was due), although he or she possess a poll tax issued by the collector of taxes.” Some of the other holdings in the. same case are that a separate assessment in the manner provided by law must .precede the issuance of a poll tax, that the assessment must be in writing, cannot be oral, and must be upon blanks approved by the State Tax Commission. See, also, Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257; Murphy v. Trimble, Judge, 200 Ark. 1173, 143 S. W. 2d 534. Since the affiant, J. E. Moore, was not a qualified elector, as the trial court properly held, there remained only nine affiants on the affidavit which was an insufficient number to give the court jurisdiction to proceed with the contest. It has been so held in several cases, two of them being Thompson v. Self, 197 Ark. 70, 122 S. W. 2d 182, and Murphy v. Trimble, supra. Therefore, the court properly dismissed the complaint and its judgment is accordingly affirmed.