Porter v. Hesselbein

Dissenting opinion attached. Jim Johnson, Associate Justice. This case involves an election contest. Appellant Porter, Appellee Hesselbein and Homer Gray were candidates for the nomination of alderman of the Third Ward in the City of Morrilton in the Democratic preferential primary on July 25, 1961. There were 605 votes cast, Hesselbein received 327 votes, Porter received 178 and Gray 100 votes. Hesselbein was thereafter certified by the county central committee as the Democratic nominee. Porter filed suit against Hesselbein contesting the certification of vote and certification of nomination, relying upon the following portion of Initiated Measure of 1916, No. 1, § 12 [Ark. Stats. § 3:245]: “A right of action is hereby conferred on any candidate to contest the certification of nomination or thé certification of vote as made by the county central committee. . . . The complaint shall be verified by the affidavit of the contestant to the effect that he believes the statement thereof to be true, and shall be filed within 20 days of the certification complained of. ” The complaint, was filed within 20 days of the. certification and verified, as provided in the statute, supra. The allegations of the complaint contest both the certification of the vote and the certification of nomination. (The complaint was filed within the 20 days, but on the day following the date for the general primary, which by statute is to be held 14 days after the preferential primary.) On November 21,1961, the contestee filed a motion to dismiss the complaint on the ground that the contestee had been elected alderman of the Third Ward in the general election and, by reason thereof, the court had lost any and all jurisdiction to award plaintiff any of the relief sought in his complaint. The motion was granted, from which comes this appeal. For reversal, appellant contends that: (1) The court erred in holding that a candidate in a preferential primary (who does not allege that he received a sufficient number of votes to entitle him to a certificate of nomination) cannot contest the election, and in dismissing the complaint; and (2) The court erred in holding that the cause had become moot after the general election and in dismissing the complaint. First we will consider the second point urged for reversal. Appellee cites two Arkansas cases in support of his contention that the cause is now moot. They are Kays v. Boyd, 145 Ark. 303 at 305, 224 S. W. 617, and Cecil v. Cline, opinion delivered March 5, 1962. The Kays case is a suit to reinstate a student suspended from the State Agricultural School for conduct unbecoming a gentleman. The trial court granted the prayer of the petitioner and ordered the Board of Trustees to restore the student to full scholarship, which was done. The Board of trustees appealed to this court, and the school term lapsed while the appeal was pending. The court therefore found that a decision of the case could have no practical application to the controversy between the litigants, and dismissed the appeal of the Board of Trustees. Cecil v. Cline, supra, is an election contest case. The appeal was dismissed as moot because the record clearly showed that the term of office over which the controversy arose had expired. From the record in the case at bar,,the term of office in controversy commenced January 1, 1962, and will not expire until December 31, 1963. With the state of the record being thus, i.e., the term of office having not yet expired, we find that the cited cases have no bearing on the question here presented for our consideration. However we do find two sections of the Arkansas Statutes which have a great deal of bearing on the question. They are as follows: “No person shall be declared the nominee of any political party for . . . municipal office unless such person shall have complied with every requirement of all laws applicable to primary and other elections and has received a majority of all votes cast at such primary election for all candidates for such office.” Acts 1943, Ark. Stat. 3-201. (Emphasis ours). “Should a proceeding (contest) . . . be not determined finally until after the election, and the defendant in such proceeding is elected to the office as the nominee of the party, and it is determined that he was not entitled to the nomination, . . . then such judgment shall operate as an ouster from office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation.” Init. Measure of 1916, Ark. Stat. 3-253. (Insert ours). From these sections of our statutes, we find that the people by an Initiated Measure have provided that a nominee for a municipal office must have received a majority of all votes cast at the primary election and further provided that in the event it is judicially determined even after success in the general election that such person was not entitled to nomination, such judgment shall operate as an ouster from office. This being true, we have no choice but to conclude that the cause is not moot. See generally, Higgins v. Barnhill, 218 Ark. 466, 236 S. W. 2d 1011. The remaining point urged for reversal presents a case of first impression in this jurisdiction. As stated above, appellant contends that the trial court erred in holding that a candidate in a preferential primary (who does not allege that he received sufficient votes to entitle him to a certificate of nomination) cannot contest the election. It is true that the case of Hill v. Williams, 165 Ark. 421, 264 S. W. 964, and Story v. Looney, 165 Ark. 455, 265 S. W. 51, and the line of cases following them are authority for the rule that Initiated Measure of 1916, No. 1, § 12 [Ark. Stat. 3-245] supra . . confines the right of contest to a candidate at the primary election, . . . who claims to be the rightful nominee.” If for no other reason than to avoid a multitude of suits and lend some stability to our election laws, we agree that this is a salutary interpretation of the 1916 Initiated Measure and should under proper circumstances be followed. If the question presented for our consideration merely involved an application of this established rule, our task would be simple indeed. Unfortunately this is not the case. In 1943 the Legislature amended our election laws and provided as follows: “Whenever any political party in this State shall, by primary election, select party nominees as candidates at any general (regular or special) election, for any . . . municipal office, said party shall hold a preferential primary election on the day two (2) weeks prior to said general primary election, which preferential primary shall be conducted according to the law prescribed for conducting the general primary election in this State.” Acts 1943, Ark. Stat. 3-210. With the enactment of this law providing for a preferential primary it is engrafted upon our existing election laws, such as they are, and becomes a part thereof. Now for the first time since the adoption of the 1943 Act, this court is presented with the question of whether a duly qualified candidate for a municipal office can properly contest an election while, under the'facts, he cannot honestly allege that he received a sufficient number of votes to entitle him to a certificate of nomination, but instead does allege inter alia that when the election returns are purged of the enumerated illegal votes it would be shown that such candidate should be certified as a candidate in the run-off or general primary election. Certainly the right of a candidate to be in a run-off or general primary for nomination to public office is a valuable right. While such right may not be as valuable as the right to be certified as the nominee, it is nonetheless a valuable right and in our view should not be denied. If the allegations of appellant’s complaint are judicially found to be true, appellee is presently holding office without having received a majority of the votes cast in the primary election, contrary to the prohibitions of the statute providing that no person shall be declared to be the nominee unless such person has received a majority of all votes east. Ark. Stat. 3-201, supra. It would necessarily follow, in such an event, that the provisions of Ark. Stat. 3-253, supra, would operate as an ouster from office. As in all election contest cases in which the contestant prevails subsequent to the general election and after the contestee has been sworn into the office in question, success in the contest may not personally benefit the contestant, but to deny a contestant, because of this, the right, in a proper case, to contest an election would be a denial of a right which in most cases is precious to the contestant and of inestimable value to the general public in the maintenance of the democratic processes. Therefore it is our view that the Legislature by the enactment of Act 238 of 1943, supra, providing for a preferential primary election has given a candidate in such preferential primary, as a matter of public policy, the right to contest such election upon the proper allegations of entitlement to be certified as a candidate in the run-off or general primary election. To hold otherwise would effectively prohibit election contests in preferential primaries regardless of the skulduggery which might be employed in the conduct of an election. Accordingly, the order of dismissal is reversed and the cause is remanded for further proceedings consistent with this opinion. Harris, C. J., and McFaddin and Robinson, JJ., dissent.