Glover v. Hot Springs Kennel Club

Ed P. McPaddin, Associate Justice. This appeal necessitates a study of Act No. 191 of the 1957 Legislature.1 The question presented is whether it is necessary for the proposition submitted to the voters under § 9 of the Act No. 191 to receive merely a majority of all the votes cast at the election, or must the proposition receive a majority of all of the poll tax holders of the county involved. The appellee, Hot Springs Kennel Club, Inc., filed action in the Garland Circuit Court against the appellants, being the Garland County Election Commissioners; and prayed inter alia, that the Court direct the defendants to certify to the Arkansas State Racing Commission that the proposition submitted to the voters in Garland County under the Act No. 191 had received a majority of the votes, and had carried. The defendants denied that the proposition had carried. The case was submitted to the Circuit Court on stipulated facts, substantially as follows: (1) The plaintiff, Hot Springs Kennel Club, Inc., is a corporation; and the defendants, R. Julian Glover, Harvey Craig, and Roy Mitchell, are the duly appointed and acting Election Commissioners of Garland County, Arkansas. (2) In accordance with Act No. 191 of 1957, the plaintiff made application to the Arkansas State Racing Commission for a temporary franchise to conduct greyhound dog racing in Garland County; said temporary permit was issued; and the defendant Election Commissioners, being notified of the grant of the temporary franchise, called a Special Election in Garland County to submit to the voters therein the issue of approval or disapproval of greyhound racing. (3) At the said Special Election, held in Garland County on May 6, 1958, there were 4,662 votes cast in favor of greyhound dog racing and 3,882 cast against greyhound dog racing; and the applicable poll tax list of Garland County at the time of the election showed that there were 17,245 poll tax holders named on the list. On the foregoing stipulated facts, the Circuit Court ruled that the greyhound racing proposition had carried, and directed the defendants to so certify to the State Racing Commission. The Circuit Judge delivered a written opinion which is in the transcript and has proved helpful to this Court. The following are the points relied on by the appellants on this appeal: “It was the intention of the Legislature, in enacting Sections 6, 9 and 10 of Act No. 191 of 1957 (Sections 84-2821 to 84-2824 and 84-2825, Arkansas Statutes, 1947), to require the affirmative vote of a majority of all of the qualified electors of the county in order to approve greyhound racing.2 The official Poll Tax List of Garland County for the Year 1957 is prima facie evidence of the number of qualified electors of the county. The proposition for greyhound racing did not receive the affirmative vote of a majority of those listed in the Official Poll Tax List, and the court below, therefore, erred in declaring that the proposition carried.” I. Intention Of The Legislature. The appellants insist that it was the “. . . intention of the Legislature . . .” to require the affirmative vote of a majority of all the poll tax holders of the County in order to approve greyhound racing. It is well established that in construing statutes it is the duty of the courts to ascertain and declare the “intention of the Legislature,” as expressed in the statute. In State ex rel. Atty. Gen. v. Trulock, 109 Ark. 556, 160 S. W. 516, Chief Justice McCulloch said: “The cardinal rule of interpretation is the ascertainment of the meaning of the lawmakers, as expressed in the language which they used. Not what the lawmakers themselves meant, but what the language they used means; and all rules of interpretation must yield to this as the paramount one.” In Berry v. Sale, 184 Ark. 655, 43 S. W. 2d 225, Chief Justice Hart said: “This Court has uniformly held that, in the construction and interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act if that can be done.” In Bullion v. Aetna Ins. Co., 151 Ark. 519, 237 S. W. 716, Judge Prank G. Smith stated the rule in this language: “In passing upon this question we conceive it to be our duty only to ascertain the legislative intent, and this must be done by interpreting the -words which the Legislature itself has employed in expressing that intent. It is an accepted canon of construction that ‘where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent . . .’ ” The Circuit Judge, in his opinion in this case, concisely stated the rule: “. . . where the Legislature has used a word, phrase, or group of words which have received a judicial construction and interpretation, it is presumed that the Legislature used the word, phrase, or group of words in the light of the judicial interpretation placed upon said word, phrase, or group of words.” So we see the words in Sections 6 and 9 of the Act No. 191 here under investigation are: . . a majority of the qualified electors of the county . . . ,” and we proceed now to see if such words have been judicially determined and construed by this Court, in order that we may ascertain the legislative intention in the use of those words. II. Previous Decisions Construing “Majority Of The Qualified Electors.” As heretofore stated, the question is whether it was necessary for the greyhound racing proposition submitted to the voters of Garland County to receive merely a majority of those voting on the proposition at the election, or was it necessary for the proposition to receive the vote of a majority of all of the 17,245 poll tax holders of Garland County. It will be observed that in Section 6 (A) the words are, “. . . a majority of the qualified electors of such county at a special election called for that purpose . . . and in Section 9 (B) the words are, “. . . and any such proposition shall be carried when approved by a majority of the qualified electors of the county . . . ”3 Do the said words in Section 6 and Section 9 — -“a majority of the qualified voters of the county” — standing alone and without further qualifying or modifying words, as they do, have a fixed and definite meaning in legal parlance? The answer is, yes: the words do have a fixed and definite meaning by the decisions of this Court; and such fact is the decisive answer in this case. "We have an impressive line of decisions of this Court on the point, some of them being: Vance v. Austell (1885), 45 Ark. 400; Watts v. Bryan (1922), 153 Ark. 313, 240 S. W. 405; Graves v. McConnell (1924), 162 Ark. 167, 257 S. W. 1041; and Browning v. Waldrip (1925), 169 Ark. 261, 273 S. W. 1032. In Vance v. Austell (supra), the Supreme Court of Arkansas considered Art. 13, Sec. 3 of our Constitution, which says that a county seat shall not be established or changed without . . a majority of the qualified voters of the county . . . ”; and this Court said of the words, “majority of the qualified voters of the county”: “Does this language mean a majority of those persons resident in the county who possess the qualifications of electors, or merely a majority of those who actually participate in the election? Cases are to be found in the reports where the first mentioned construction has been placed upon similar language in constitutional provisions. Such are Cooke v. Gooch, 5 Heisk., Tenn., 294, afterwards followed in Bouldin v. Lockheart, 1 Lea, 195; Hawkins v. Carroll County, 50 Miss. 735. But the great weight of authority is that, ‘Where a statute requires a question to be decided, or an officer to be chosen by the votes of a majority of the voters of a county, this does not require that a majority of all persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by the majority of the votes cast; provided always there is a fair election and an equal opportunity for all to participate. In such a case the only proper test of the number of persons entitled to vote is the result of the election as determined by the ballot-box, and the courts will not go outside of that to inquire whether there were other persons entitled to vote who did not do so. The voters of the county referred to by all such statutes are necessarily the voters who voted at the election, since the result in each case must be determined by a count of the ballots cast, and not by an inquiry as to the number not cast.’ McCrary on Elections, Sec. 183 and cases cited; Railway Company v. Davidson County, 1 Sneed, 692; State v. Mayer, 37 Mo., 272; St. Joseph Township v. Rogers, 16 Wall. 644. This doctrine is as old as Rex v. Foxcraft, 2 Burrows, 1017 (decided in 1760), when Lord Mansfield observed, ‘Whenever electors are present and don’t vote at all, they virtually acquiesce in the election made by those who do.’ ”4 In Watts v. Bryan (supra), this Court again held that the words, “majority of the qualified electors of such county,” meant only a majority voting on the proposition submitted. The facts in the case emphasize the holding. Amendment No. 3 to the Arkansas Constitution says that the quorum court will have power to levy a 3-mill road tax, “. . . if a majority of the qualified electors of such county shall have voted public road tax at the general election for State and county officers preceding such levy at such election ...” At the election in Searcy County, a majority of those voting on the proposition voted for the 3-mill road tax, but such was not a majority of the persons who voted at the election. In other Avords, many electors voting at the election entirely failed to vote either Avay on the road tax proposition. This Court, in a unanimous opinion by Chief Justice McCulloch, held that the said 3-mill road tax proposition had carried at the election in Searcy County because it had received a majority of the votes of those Avho voted on the proposition, even though it did not receive a majority of those who voted at the election: “Our conclusion, therefore, is that Amendment No. 3 requires only a majority of those voting on the question in order to authorize the levy of a road tax, and that a majority of the highest number of votes cast at the election is not required.” In Graves v. McConnell (supra), this Court had before it the words, “majority of the qualified electors residing in said described district.” There Avere 2,250 qualified electors residing in the district. At the election there were only 1,450 votes cast; and of these 760 voted for the proposition and 688 voted against the proposition. This Court, in a unanimous opinion by Justice Carroll D. Wood, held that the proposition had been duly adopted because it received a majority of the votes cast on the proposition: ‘ ‘ Section 5 of the act, among other things, provides: ‘No provision of this Act shall become effective until it has first been approved by a majority of the qualified electors residing in said described district.’ In Watts v. Bryan, 153 Ark. 313, an amendment to the Constitution contained the following provision: ‘If a majority of the qualified electors of such county shall have voted public road tax * * * . ’ In that case we held that this language requires a majority only of those voting on the question, and not a majority of the highest number of votes cast at the election, nor a majority of all persons in the county entitled to vote. See also Vance v. Austell, 45 Ark. 400, where we gave similar language a like construction. The canvass of the returns by the commissioners of the votes cast upon the subject showed a majority for making the law effective. It follows therefore that, under the above decisions, the commissioners should have proclaimed the law in effect.” Another case to like effect is Browning v. Waldrip (supra). There, the act (No. 579 of 1923) required that the proposition be approved by “a majority of the landowners of the said district”; and this Court, in a unanimous opinion by Justice Carroll D. Wood, said: “A majority of the landowners in the district, who voted at the election to put in operation the law creating the district, voted in favor of the district. Under the provisions of the act it was to take effect when a majority of the landowners in the district had voted in favor of the law. This provision was complied' with when a majority of the landowners in the district voting at the election on the question favored putting the law into effect. Graves v. McConnell, 162 Ark. 167; Watts v. Bryan, 153 Ark. 313.” There is no need to emphasize the matter further.5 When the Legislature of Arkansas used the words in Sections 6 and 9 of this Act, as heretofore quoted— “. . . a majority of the qualified electors of such county at a special election called for that purpose,” and ‘ ‘. . . and any such proposition shall be carried when approved by a majority of the qualified electors of the county” — it is clear beyond peradventure of a doubt that the words were used in their recognized legal significance and meant a majority of people of the county who voted on the proposition, and not a majority of all the people of the county who had poll tax receipts. We recognize that the Legislature may make the requirements different from a majority of those voting on the proposition at the election: the Legislature has done so in a number of instances. In court house removal elections under § 17-209 Ark. Stats., the Legislature has required that the proponents of removal receive a majority of all of the qualified electors in the county as determined by the poll tax books. See Vance v. Austell, 45 Ark. 400, and Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686. As to the petition to call a local option election under Initiated Act No. 1 of 1942 (§ 48-801 Ark. Stats.), the requirement is that the petition be signed by 15 per cent “of the qualified electors as shown on the poll tax records.” (See Tollett v. Knod, 210 Ark. 781, 197 S. W. 2d 744.) In the Act No. 191 here involved, the Legislature showed that it knew about these matters, because in Section 10 of the Act 191 the Legislature, in providing for a referendum petition four years after the first election, said that the referendum petition should contain the signatures of 15 per cent of the qualified electors who voted “in the election for county clerk of said county at the next preceding general election.” In other words, the Legislature recognized that it could make a test; and in Section 10 (C) of the Act No. 191, after thus making the test for the referendum petition, the Act said that the dog racing franchise would be null and void if “a majority of the qualified electors of the county voting on the question” should disapprove the continuance of greyhound racing. We conclude: that Act No. 191 stated in Sections 6 and 9, that the proposition to be voted on was to be approved by “a majority of the qualified electors of such county”; that the Legislature used those words after they had been judicially construed by this Court in the cases that we have named; and those words had a fixed legal meaning, to-wit: a majority of those who voted on the proposition. Therefore, the judgment of the Circuit Court was correct. Affirmed. Ward, J., not participating. Holt & George Rose Smith, JJ., dissent. Footnotes [1] This Act is captioned: “An Act to Legalize Greyhound Racing and Pari-Mutuel Wagering Thereon in All Political Sub-Divisions of the State of Arkansas; to Regulate and Control Greyhound Racing and Pari-Mutuel Wagering Thereon in the State of Arkansas; to Repeal Act 339 of the Acts of 1935, approved April 4, 1935; and for Other Purposes.” [2] Por convenient reference, we copy the pertinent portions of the sections of Act No. 191, as above referred to, with emphasis supplied by us: “Sec. 6. (A) Except as otherwise hereinafter provided, the Commission shall not be authorized to grant, nor shall it grant, a franchise to any corporation to conduct Greyhound Racing in any county in this State unless and until the proposition of Greyhound Racing shall have been approved by a majority of the qualified electors of such county at a special election called for that purpose . . . “Sec. 9 (B) The special election shall be conducted under the General Election Laws of this State, and at any such election there shall be printed upon the ballots the words ‘For Greyhound Racing’ and ‘Against Greyhound Racing’; and any such proposition shall be carried when approved by a majority of the qualified electors of the county “Sec. 10 (A) After the elapse of not less than four (4) years next following the date of any election conducted pursuant to Section 9 hereof, the County Board of Election Commissioners shall, upon petitions filed with it containing the signatures of qualified electors of the county of not less than fifteen per cent (15%) of the total number voting in the election for County Clerk of such county at the next preceding General Election, together with a sum of money estimated by the Board as sufficient to pay all expenses of the election, call a special election on the proposition of continuing Greyhound Racing in the county . . . “Sec. 10 (C) If a majority of-the qualified electors of the county voting on the question shall disapprove the continuance of Greyhound Racing, the franchise held by the corporation shall, ipso facto, be null and void as of the final date on which a contest of the results of the election may be commenced, or, in the event of contest, upon the date of final determination of the issue.'’ [3] The provisions in Sections 10 (A) and 10 (B) relate to subsequent elections, and will be discussed near the end of this opinion. [4] In the same cases of Vance v. Austell, the Court said that the Legislature could make a higher test than the “majority of the voters of the county”, and that the higher test could he used, as, for instance, in § 17-209 Ark. Stats., wherein it is provided: “To ascertain the number of qualified electors of any county for the purposes of this Act and the lawful majority necessary to authorize the change or removal of any county seat as herein provided for, the county court shall be governed by the number of persons who have paid their poll tax, as shown by the names of persons who have paid their poll tax as filed with the county clerk by the collector (on the first Monday in July)-preceding the holding of any election for the removal or change of any county seat under this Act . . .” In short, the Court held in Vance v. Austell that the words, “majority of the voters of the county”, standing alone, mean the majority of those voting at the election; and that if the Legislature wanted to prescribe a higher test, as the majority as determined by the poll tax books, then the Legislature could do so; but, in the absence of such further requirements, the words “majority of the voters of the county” mean the majority of those voting on the proposition at the election duly held. [5] Formerly this Court held that the language, “if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution”, meant a majority of all the electors voting at the election and not a mere majority of those voting on the particular proposition. See Rice v. Palmer, 78 Ark. 432, 96 S. W. 396; and Hildreth v. Taylor, 117 Ark. 465, 175 S. W. 40. But a Special Supreme Court of Arkansas (of which former Governor T. C. McRae was Special Chief Justice), in the case of Brickhouse v. Hill, 167 Ark. 513, 268 S. W. 865, overruled Rice v. Palmer and Hildreth v. Taylor, and held that a constitutional amendment was adopted when it received only a majority of those who voted on the proposition: it was not required to receive a majority of all the people who voted at the election.