Wright v. Sullivan

George Rose Smith, J. The issue in this case is whether the appellant Wright is entitled to have his name appear on the ballot in a Democratic primary to be held later this summer. It is conceded that the appellee Sullivan duly qualified as a candidate for nomination to the office of county sheriff. The only other candidate who attempted to qualify was the appellant, but by oversight he failed to file his corrupt practice pledge until May 2, the ticket having closed on April 30. Sullivan then filed this action for a declaratory judgment, naming Wright and the members of the Democratic county committee as defendants. The trial court held that the pledge had been filed too late and enjoined the committee from placing Wright’s name on the ballot. The statute requires that the corrupt practice pledge be filed ninety days before the election. Ark. Stats. 1947, § 3-1304. The difficulty lies in the fact that two primary elections have been necessary since the adoption of Amendment 29 to the constitution, which requires that party nominees receive a majority vote. Wright’s pledge was not filed ninety days before the preferential primary, which will be held on July 29, but it was filed more than ninety days before the general or run-off primary, which will be held on August 12. Wright contends that the latter date should be controlling, since the law provides that when there are, as here, only two candidates for an office the contest is to be determined at the second primary election. Ark. Stats., § 3-212. We think this question has been determined adversely to the appellant by the explicit language of the statutes. By Act 238 of 1943 the legislature declared that when there are only two candidates for an offiee “the time for filing pledges and payment of fees shall be reckoned from the date of the preferential primary election.” Ark. Stats., § 3-212. In a later section of the same act it is directed that only the general primary shall be held if there are no races involving three or more candidates, “provided, however, the time for filing pledges and payment of fees shall be reckoned from the date on which the preferential primary would have been held had one been necessary.” Ark. Stats., § 3-214. Thus the General Assembly has twice declared that the time is to be calculated from the date of the preferential primary even if only two candidates have qualified. The appellant contends that in the statutes just quoted the reference to “pledges” should be taken to mean party loyalty pledges only, since those happen to be the only pledges that are mentioned elsewhere in the act. Ark. Stats., § 3-213. We think it reasonable to believe that the legislature meant to include both types of pledge in its mandate and thus to avoid the confusion that would inevitably occur if the time for filing the corrupt practice pledge should be dependent, as the appellant insists, upon the number of candidates eventually seeking the office. It is conceded that the date of the preferential primary determines the time for the filing of the party loyalty pledge and for the payment of the ballot fee. We are not convinced that the legislature meant to fix a different date for the filing of the corrupt practice pledge, which is equally a requirement to be met by a candidate for office. The appellant also asks us to hold that the filing of the pledge two days late amounted to a substantial compliance with the statute. This position might be well taken if no objection has been raised until after the election, for then the requirement could be regarded as directory; but we have often held that the provisions of the election laws are mandatory if enforcement is sought before the election. Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280; see also Fletcher v. Ray, 220 Ark. 844, 250 S. W. 2d 734. and Byrd v. Short, 228 Ark. 368, 307, S. W. 2d 871. The appellant cites a number of cases involving the principle of substantial compliance, but only in the case of Fisher v. Taylor, 210 Ark. 380, 196 S. W. 2d 217, was the objection made before the election. That case involved a party loyalty pledge executed on behalf of a member of the armed forces, serving on board ship, and we based our decision on the special consideration that the law accords to soldiers and sailors absent from home in defense of their country. It was specifically stated that the rule there applied would not be controlling ‘ ‘ under ordinary and normal conditions, ’ ’ which are the conditions presented by the case at bar. Affirmed. Harris, C. J., concurs.