Garner v. Holland

George Howard, Jr., Justice. We are to determine if the trial court’s holding, which finds that petitioner’s residence, in order to stand for election as a delegate for the Arkansas Constitutional Convention in the November 7, 1978, General Election, is 11023 Hunters Point, Legislative District 16, instead of 3017 Free Ferry Road, Legislative District 15, where appellant sought to run, resulting in a decree approving the action of the Sebastian County Election Commission in refusing to place the petitioner’s name on the ballot, is supported by substantial evidence. THE FACTS The essential facts in this case, which are not in dispute, are: On September 28, 1978, after petitioner had filed his nominating petition and paid the necessary filing fee, the Secretary of State certified petitioner as a candidate for delegate, Position Number One, District 15, Sebastian County, to the Constitutional Convention of 1979, to be voted on November 7, 1978. However, on September 29, 1978, at approximately 3:00 p.m., petitioner was advised that the Sebastian County Election Commission would conduct a meeting at 4:00 p.m. to examine petitioner’s qualifications to be a candidate in Legislative District 15. Because of a prior commitment, petitioner was unable to make the meeting. The Election Commission met and, after considering an opinion rendered by its attorney, Charles Karr, that petitioner did not possess the qualifications to run as a delegate in District 15, concluded that petitioner’s name would not be printed on the ballot. In accordance with Ark. Stat. Ann. § 3-612 (Repl. 1976),1 petitioner filed an affidavit in the Sebastian County Circuit Court seeking to have the Commission show cause why his name should not be printed on the ballot. On October 9, 1978, the Circuit Court of Sebastian County conducted a hearing and, after considering all evidence adduced, made a finding that appellant’s residence for purposes of the Constitutional Convention was 11023 Hunters Point, Legislative District 16 as opposed to Legislative District 15 where appellant sought to run; and further held that the Sebastian County Election Commission was justified in not placing petitioner’s name on the ballot as a candidate for the position of delegate to the Constitutional Convention. On October 11, 1978, petitioner filed his petition and motion in this Court praying essentially for a writ of mandamus requiring the Sebastian County Election Commission to include his name on the printed ballot; and that the order of the Circuit Court of Sebastian County, in effect, should be stayed or set aside, and that time being of the essence, the matter should be advanced on this Court’s docket for a speedy disposition. It is conceded by the appellees that the petitioner is an attorney who maintains his office for the general practice of law at 3017 Free Ferry Road in Fort Smith which is located in Legislative District 15; and that petitioner is registered to vote in Legislative District 15 and has voted in Precinct 1-H for many years which is located in Legislative District 15; and that his office address is designated as his residence and has been certified as his legal address for numerous personal reasons. For example, petitioner’s driver’s license, fishing and hunting licenses, passport, bank accounts, tax and assessment records, medical insurance policies, automobile registration certificate and a variety of other personal matters all indicate and designate 3017 Free Ferry Road as petitioner’s address. Petitioner also testified that his wife and son lived at 11023 Hunters Point which is located in District 16; and that although he regards 3017 Free Ferry Road, which is located in District 15, as his residence, 90% of his sleeping is done at 11023 Hunters Point and approximately 10% of his sleeping hours are spent at 3017 Free Ferry Road; that he and his wife own the dwelling house at 11023 Hunters Point; and that his son attends the Woods Elementary School which is located in Legislative District 16. Moreover, petitioner testified that he does not own the building where he maintains his law office at 3017 Free Ferry Road and that two separate firms share the same building. THE DECISION Inasmuch as absentee ballots were scheduled to be placed in the hands of the Sebastian County Clerk twenty-five days prior to the General Election and concluding that time was of the essence, we entered our order denying petitioner’s request for a writ of mandamus on October 16, 1978, but indicated that an opinion would follow. After carefully reviewing the record before us, we are persuaded that the only issue tendered to the Circuit Court of Sebastian County was the question of residency of the petitioner. To put it another way, the trial court was called upon to determine petitioner’s official residence. Consequently, the trial court had before it a factual issue. However, petitioner, for the first time, in this Court has sought to raise an issue as to whether or not the langugage contained in Section 4 of Act No. 3 of the Extraordinary Session of the Arkansas General Assembly of 1977, calling for a Constitutional Convention, mandatorily requires the Sebastian County Election Commission to include his name on the ballot of the General Election of 1978, inasmuch as the Secretary of State has certified the petitioner as being eligible to run as a delegate.2 It is well settled that an issue raised for the first time at the appellate level will not be considered by this Court. The posture that we take in finding that only the issue of residency was tendered to the trial court is supported by the following exchange that took place in the trial court: “THE COURT: ... I do wonder if all the evidence shouldn’t be presented to the Election Commission first before it comes here, the same evidence I guess we are presenting here today? “MR. KARR: Well, Your Honor, they have made a factual determination and that was based partly on my representation to them which followed a conversation that I had with Mr. Garner. . . . There may be a dispute as to the significance of some of those facts and wh^t residence means. “THE COURT: Do you want to go ahead and proceed here, Mr. Garner? “MR. GARNER: You mean — ? “THE COURT: Do you want to go ahead and present everything and have me make my decision? “MR. GARNER: Yes.” After all of the evidence had been presented by petitioner and respondents to the trial court, the following exchange took place between the court, counsel for the election commission and petitioner, Mr. Garner: “THE COURT: . . . There is one thing that neither of you have mentioned, and I would like some comment on, and that is Section 4, 202-104, Constitutional Convention. “MR. GARNER: What is it, Judge? Section what? “THE COURT: Section 4 of Arkansas Statutes 2-104, which is calling the Constitutional Convention. It says, ‘A county election commission shall include on the ballot of the General Election of 1978 the names of all candidates for Delegate to the Constitutional Convention as certified by the Secretary of State. ’ Now, it has been admitted by all parties that Mr. Garner has been certified by the Secretary of State. If you all need a little time to think about that — Of course, this decision needs to be made today because I imagine one side or the other is going to the Supreme Court, 1 don’t know, and it is going to take a while to get the transcript. I may be — “THE COURT: Well, I agree it ought to be settled, but you are saying Section 4 is really not — “MR. GARNER: — Doesn’t mean what it says? “THE COURT: Do you all want any more time to look up Section 4? “MR. GARNER: I don’t Your Honor. I think the facts are plain. “MR. KARR: Your Honor, we stand on our Brief and argument. “MR. GARNER: We stand on the facts, Your Honor.” We are convinced that petitioner waived the opportunity extended to him by the trial court to assert applicable provisions under Section 4 of Ark. Stat. Ann. 2-104 (Repl. 1976). In Shephard v. Hopson, 191 Ark. 284, 86 S.W. 2d 30, we made the following observation: “In Duval v. Johnson, 39 Ark. 182, it was held that the term ‘usual place of abode’ is synonymous with ‘residence’. It is generally understood that one’s usual place of abode or residence is where (if he is a married man) he abides with his wife and family. Therefore, the house in which one’s wife and children are living is presumed to be a man’s ‘usual place of abode’ ...” We are convinced that the rule in Shephard v. Hopson, supra, is dispositive of the issue raised in this case. We are further persuaded that the holding of the trial court is supported by substantial evidence. Accordingly, the petition for writ of mandamus is denied. George Rose Smith, J., concurs. Fogleman and Byrd, JJ., would grant the writ. Footnotes [1] Ark. Stat. Ann. § 3-612 provides, in material part, as follows: “Whenever it shall appear by affidavit that an error or omission has occurred in the publication of names of [or] description of candidates nominated for office, or in the printing of ballots, the Circuit Court of any County, or the Judge thereof in vacation, or if the Circuit Judge be then absent from the County, the Judge of the County Court, shall, upon the application of any elector, by order, require the County Election Commissioners to immediately correct such error or omission, or show cause why the same should not be done.” [2] Section 4 of Act No. 3 of the Extraordinary Session of the General Assembly of 1977, in material part, is as follows: “The County Election Commissioners shall include on the ballots of the General Election of 1978 the names of all candidates for delegate to the constitutional convention as certified by the Secretary of State. ...”