Pitts v. Stuckert

Wood, J., (after stating the facts). The circuit court found ‘ ‘ from the testimony and the record that the contestants were made parties before the county court acted on the return of the clerk and justices of the peace, but filed no contest until after the county court had adjudged the result of the election, when they filed a paper purporting to be a contest, which the county court refused to consider on the ground that that matter was not then before it. The case was tried in the circuit court alone on the statement of grounds of contest filed after the appeal had been taken and the transcript lodged in the circuit court.” These findings of the circuit court, based upon the record of the proceedings in the county court, were correct, and the circuit court, upon these findings, should have sustained the judgment of the county court dismissing the petition of appellants for a contest before the county court. The circuit court should not have permitted the appellants thereafter to file a pleading in the nature of a complaint, setting out specifically their grounds of contest. In other words, the circuit court should have refused to entertain the proceedings for a contest instituted in that court, in the first instance. The county courts, under our. law, have exclusive original jurisdiction in all matters relating to the local concerns of the county. In Freeman v. Lazarus, 61 Ark. 247, we said “It is now well settled that the county courts of this State have the right to determine contests concerning the result of elections for the location or removal of county seats on the ground that it is a matter of local concern over which the county courts have jurisdiction.” And in Russell v. Jacoway, 33 Ark. 194, we said: “The removal of the county seat is manifestly a local concern of the county, over which the county court has exclusive original jurisdiction, and its authority to determine for itself whether the conditions exist upon which the removal is required is unquestionable. * * * For the circuit court to assume to determine in the first instance, and before the county court has acted in the premises, whether a majority of the electors have, or not, voted for the removal is to withdraw the matter entirely from its jurisdiction.” The appellants were parties to the proceedings for the removal of the county seat in the county court from the first. They had themselves made parties to these proceedings at the term of the county court when the petition was filed asking for an election to be held on the question of removal. On the 7th of April, after the election was held, and while the county court had before it for consideration the question on the report of the canvassing board, as to whether or not a majority of the votes cast at such election was in favor of removal, the appellants again had themselves made parties for the special purpose “of appealing from any and all orders that the county court should make.” The appellants complained to the canvassing board, before they had declared the result of the election on the question of removal, that there had been certain illegal votes cast and asked that the canvassing board recount the ballots in certain townships and their request was granted by the canvassing board, and this board found, going behind the face of the returns, that there had been a majority for removal. This request to the canvassing board to recount the ballots can not be construed as instituting a contest of the election. It does not comply with any of the requirements of the law for such contests. It was directed to the canvassing board, and can only be construed as a request for such board to recount the ballots. There is authority for such request, under the provisions of the general election law. Kirby’s Digest, § 2837. In the case of Walsh v. Hampton, 96 Ark. 427, we held that the general election law applies to an election for the removal of a county seat, under the provisions of section 1119 of Kirby’s Digest. After quoting section 1119, we said: “It is obvious that the Legislature meant, in the above quoted language, that an election for the removal of the county seat should be understood to mean a general election so as to come within the terms of the general election law and to fall within the scope of the machinery set in motion for that purpose. ’ ’ And it would be well to say, in this connection, in view of another election, and lest silence be taken as approving illegal and irregular procedure, that under the above holding, the returns of the election should have been made to the election commissioners instead of to the county clerk and justices of the peace. See Kirby’s Digest, § 2833. This section repeals the provisions of section 1119, requiring the poll books, etc., to be returned to the clerk of the county court. However, no question is raised here by the appellees as to the authority of the clerk and justices of the peace to canvass the returns and declare the result of the election on the face of such returns. A request to the canvassing board to recount the ballots is quite a different thing from instituting a contest of the election. So it appears that the appellants, while the question was pending before the county court as to whether or not there had been a majority in favor of removal, contended that the canvassing board had power to go behind the returns and to purge the returns of all illegal votes and to declare the result, and that the result as thus declared was conclusive. The appellees, on the other hand, contended that the canvassing board had no other or greater power than to declare the result as shown on the face of the returns. That was the issue that was submitted to the county court for its decision, and the county court correctly held that the duties of the canvassing board were purely ministerial, and that they had no discretionary power to go behind the returns for any purpose. Their duties were simply, from the certificates and ballots received from the several precincts, to proceed to ascertain, and declare the result of the election, and to recount ballots if objection was made to the returns from any precinct. See Kirby’s Digest, § § 2836-7; Howard v. McDiarmid, 26 Ark. 100; Patton v. Coats, 41 Ark. 111; Clark v. Board of Examiners, 126 Mass. 285, and other authorities cited in the brief of counsel for appellees. The cases of Shibley v. Van Buren Bridge Co., 96 Ark. 410, and Collier v. Board of Improvement, etc., 106 Ark. 151, have no application. The county court, having ascertained from the face of the returns as made to the canvassing board that the majority was in favor of removal, entered its judgment ordering the second election to be held. The appellants thereafter, on the same day, asked the court to set aside its judgment which the court refused and they filed their complaint and notice of the contest in the county court, which the appellees moved to strike out, because the court had already entered judgment upon the returns showing the result of the election. The court sustained this motion of appellees and from the order of the county court, dismissing the appellant’s complaint or petition an appeal was prosecuted to the circuit court. It therefore appears that the only question presented on- the appeal to the circuit court was whether or not the county court erred in dismissing appellants’ complaint setting up their grounds for an election contest. Instead of deciding this question, the circuit court permitted the appellants to file their complaint, setting up their grounds of contest and proceeded, over the objections of the appellees, to hear testimony and to determine the grounds of the contest as set up in the complaint filed in the circuit court. This, as we have seen, the circuit court had no right to do. It was without jurisdiction to enter upon the hearing of a contest that had not been originated and terminated, in the first instance, in the county court. There had been no contest of the election instituted before and passed upon by the county court. Appellants, it is true, after the judgment of the county court, ordering the second election on the removal, had been entered, asked the court to allow them to institute a contest. The county court, for good cause shown, could have set aside its judgment and ordered and allowed the appellants to enter upon a contest, but that was a matter within the discretion of the county court, and certainly no abuse of that discretion is shown in the record now before us. Appellants had rested their whole case on the question of law as to the conclusiveness of the finding of the election commissioners, and, having failed on that ground, and not offering to contest the election until the court had entered its judgment for a second election on the question of removal, we are of the opinion that the county court did not err in dismissing the petition of the appellants for a contest. That was the only question before the circuit court, and is the only question before this court. The circuit court, on appeal, evidently concluded that the county court erred in its judgment ordering the second election, without first hearing appellant’s proffered grounds of contest and concluded that it should treat appellants’ complaint and notice of election contest as a contest instituted in the county court, and therefore allowed appellants to file additional grounds of contest in the circuit court by way of amendment to the petition that appellants had filed in the county court. But this view overlooks entirely the fact that no contest had ever been instituted and heard as the law requires, in the county court. If the circuit judge, on appeal, concluded that the county court erred in dismissing appellants’ complaint and notice for contest filed after the county court had determined the result of the election, then the circuit court could only reverse the judgment of the county court and remand the case to that court with directions to set aside its judgment ordering the second election and to proceed to hear the contest as to the result of the first election. This the circuit court had jurisdiction to do, but it did not have jurisdiction to hear an election contest that had not been heard by the county court. The complaint filed by the appellants in the circuit court could not be treated as an amendment to appellants’ complaint filed in the county court, for the reason that that complaint had been dismissed by the county court because not filed in time, and the only question was whether the same should have been dismissed. There was nothing to amend in the circuit court. While on appeal to the circuit court from the county court, the issues are tried de novo, yet it must be upon the cause of action that was before the county court. The circuit court on appeal may permit amendments to a complaint filed in the county court and determine the issues on the complaint as thus amended, but it can not allow amendments that will change the cause of action, or introduce a new cause of action in the circuit court. See Freeman v. Lazarus, supra; also, Kindel v. LeBert, 58 Am. St. Rep. 239. Inasmuch as the record shows that no contest of the first election was ever had in the county court, and that no contest was offered to be instituted there until after the county court had declared the result of the election, we are of the opinion that the judgment of the county court was correct in dismissing the complaint of the appellants, and that the circuit court was without jurisdiction to enter upon and hear the election contest in the first instance. The judgment of the circuit court, however, in affirming the judgment of the county court, was correct, though based upon erroneous reasons. The judgment of the circuit court affirming the judgment of the county court and directing the county court to order a new election and to fix the time therefor, is in all things affirmed.