Wilson v. Land

Hart, J., (after stating the facts). This court has held that the filing of a complaint supported by the affidavits of ten reputable citizens, who are members of the party holding the primary election, within the time prescribed by the statute, is a jurisdictional prerequisite, and that, if it is not filed within the statutory time, the circuit court has no jurisdiction to hear or determine the contest. Logan v. Russell, 136 Ark. 217, and McLain v. Fish, 159 Ark. 199. Counsel for the contestant, however, contends that the ten days required by the statute within which to file the complaint did not begin to run until the certificate of nomination was given Mrs. Land by the Democratic county convention, on the 18th day of August, 1924, or, in any event, that it did not begin to run until Saturday at noon, the 16th day of August, 1924. The right to contest is given by § 3772 of Crawford & Moses’ Digest. The section provides that a right of action is hereby conferred on any candidate to contest the certification of nomination or certification of vote as made by the county central committee. It provides further that the complaint shall be supported by the affidavits of at least ten reputable citizens, and shall be filed within ten. days of the certification complained of. As we have already seen, the right to contest a primary election is purely statutory, and the Legislature may confer it upon such terms as it sees fit. Thus it will be seen that a right of action is given any candidate to contest the "certification of vote as made by the county central committee. The statute is unambiguous in this respect, and it was evidently the intention of the Legislature to provide for a speedy hearing and determination of a contest. In our opinion it was not necessary, under the statute, that contest proceedings should be delayed until a certificate of nomination had been actually issued by either the county convention or by the county central committee. We think that, when the county central committee has canvassed and tabulated the votes, and it is ascertained by this canvass and tabulation which candidate has received the greatest number of votes, the opposing candidate may at once, and must within ten days thereafter, begin his contest proceedings, although no certificate of nomination has been issued. It will be noted that the section referred to above provides that the complaint shall be filed within, ten days of the certification complained of. This carries us to a consideration of the provisions of §§ 3767-3769 of Crawford & Moses’ Digest. Section 3767 provides that the county central committee shall convene at noon of the Friday following the primary on Tuesday, and that the returns shall be delivered to said committee, as hereinbefore provided, oh or before said time. Section 3768 provides that, if the returns and ballots of any precinct are not then delivered, the committee shall send for the same and immediately bring the same to said committee. Continuing, it provides that, if all returns and ballots are not before the committee by Friday noon, it may adjourn until it receives them, not later than Saturday noon. Then the section provides that the committee shall canvass the returns, and, when demanded, examine the ballots, may hear testimony, if offered, of fraudulent practices and illegal votes, and may cast out illegal votes, fraudulent returns, and find the true and legal votes cast for each candidate, and shall certify the result not later than Monday following the primary. Section 3769 provides that said committee shall certify the nomination of all county and township officers. Thus it will he seen that the county central committee is vested with quasi-judicial powers. It has the power to hear testimony, cast out illegal votes or fraudulent returns, and find the true and legal votes cast for each candidate. It is then made its duty to certify the result. When the county central committee has canvassed and tabulated the votes and ascertained who has received a majority of the votes, its duties, except to issue a certification of nomination, are at an end, and it must award a certificate of nomination to the candidate who, by its canvass and tabulation, has received a majority of votes. Section 3768 provides that the county central committee shall find the true and legal votes cast for each candidate, and shall certify the result. This means that it shall certify its decision of the number of votes received by each candidate. When the canvass and tabulation show that a particular candidate has received the hig’hest number of votes cast for the office, he is then entitled, as a matter of right, to a certificate of nomination. It is true that the certificate of nomination is evidence of title to the nomination,. and should be given the successful candidate, yet the actual issuance of the certificate is not a prerequisite to the commencement of a contest. The right to contest grows out of the fact that one candidate has received, on the 'face of the returns made by the county central committee, a majority of the votes, and this gives him the rights of a regular nominee until he is deprived of them by a successful contest against him. It is true that, under the statute, the county central committee might have adjourned until Saturday noon to complete its canvas and certify the results thereof. But our statute regulating primary elections does not provide that contest'proceedings shall not be started until after a certificate of nomination has been issued. On the other hand, it provides that the complaint shall be filed within ten days of the certification complained of; and that certification, we think, is the one made hy the ; county central committee finding the number of legal votes cast for each candidate and certifying that result. In short, the intent of the statute is that the contest shall be commenced within ten days from the time the county central committee finishes canvassing and tabulating the returns and ascertaining the result thereof. This was done by the county central committee in the case of all the races, except that for chancellor, before the county central committee adjourned on Friday. The views we have expressed are strengthened by the holding in McLain v. Fish, 159 Ark. 199. It was there held that the requirements of the statute as to the time of completing the canvass of a primary election and the issuance of a certificate of a nomination are directory. In the case before us the county central committee finished canvassing and tabulating the votes on Friday, the 15th day of August, 1921, in so far as all of the offices were concerned, except that of chancellor, and this finding included the office of county treasurer. The tabulation made hy the committee showed that Mrs. Land received the highest number of votes cast for treasurer, and the result was so certified by the committee on the same day. Wilson did not file his. contest within ten days thereafter, and the court was right in dismissing his complaint. The judgment will therefore he affirmed.