Williamson v. Russey , 73 Ark. 270 ( 1904 )

Hiu,, C. J.

1. A petition for an election, on question of removal of the county seat, as provided in section 945, Sandels & Hill’s Digest, was presented to the county court of Sevier County. Twelve or fifteen petitions were printed from the same form, circulated throughout the county, and returned to the committeeman in charge of them, who had printed them. He detached the captions from all but one, and pasted the body of the other petitions to the one undetached from its caption, therebv bringing all the signatures under one caption, and that caption identical with the one under which the signatures were made. All the petitions were, as expressed by appellee’s counsel, “telescoped” into one. Did this vitiate the petition?

There is no evidence attacking the authenticity of the consolidated paper as having been made of the various petitions signed by the petitioners under another, but identical, caption. Authorities from California are presented in which it was held that such bringing together of petitions is illegal, and the court said the authorities were' conflicting. No other authorities which are in point are cited by either side. It is one of those questions of construction of a local statute, part of a local system, where authorities are less persuasive than in questions of general law. This section of the Digest and the petition thereunder received construction by this court in Butler v. Mills, 61 Ark. 477. In that, the Tittle River County removal case, the petitions were not “telescoped,” but were presented as signed, no one of them containing one-third of the electors, .but all containing more than one-third. It was contended, as the statute used the word “petition” in the singular, that “petitions” did not meet the requirement. This court, however, looked beyond the form, and held that these petitions presented more than one-third’ of the qualified voters, and therefore constituted a valid petition for removal. Evidently, to obviate that very objection, these petitions were combined. Ought not the court in this, as in that, case to look beyond the form into the substance, and, if it finds that more than one-third of the qualified voters have petitioned for the election to order the same? It would be sticking in the bark to hold otherwise.

It is earnestly and eloquently urged by appellees’ counsel that such a construction of the statute would open the door to frauds, and that the petitions would have to be proved by parol evidence, instead of being self-proving. The answer to that is that no system is free from frauds, and wherever fraud is found it vitiates that which it touches. It does not seem that any more parol testimony is necessary to prove a “telescoped” petition than to prove any other fact in a court of justice. It must be confessed that it is bad practice, and should not be followed, because signers might not recognize the petition signed by them in this form, and it might give rise to unnecessary contentions, and make the proof of the truth more difficult. But, in the absence of any such evidence, or even a suggestion from any signer that this is not the petition signed by him, the court is not warranted in disregarding the expressed wishes of these electors, merely because one caption is detached from the petition, and an identical one attached.

2. The act of 1901, p. 76, fixes the collector’s list of the poll taxes paid as the rule to govern in determining what is the number of electors in the county, in order to ascertain the majority, etc. The legislature could fix any definite and certain number or any definite and certain way of ascertaining the number, as was herein done. This is but an approximation, for there may be many legal voters not found on that list, young men arriving of age within the prescribed time, qualified electors moving from other counties and being in the county the requisite length of time to vote, persons who had paid poll taxes and were accidentally omitted, and possibly others. Yet the collector’s list must be used to govern the ascertainment of the requisite number of qualified voters to be signed to the petition. To illustrate: The collector returns 3,000 electors on his list; then the petition, to become effective, must contain at least 1,000. It might happen that through death and removals there were not 3,000 electors in the county, yet the petition must, under this act, contain 1,000 qualified electors, or it fails. On the other hand, from the causes suggested, there may be over 3,000 electors, and yet the petition is effective if it contains 1,000 qualified voters, although all of them may not be upon the list. As the case must be reversed, and questions of this kind are presented, it has been considered necessary to construe this act so that on the trial on the merits of the petition there may be ho error committed.

3. It has been insisted that sections 943 and 945 were, not complied with in regard to the title of the proposed new location. That question was not tried in the circuit court, as that court refused to entertain the petition for the reason heretofore set forth, and hence it is not for review here now. Suffice it to say that it will be presumed that on a hearing on the merits the lower court will see that the statutes are complied with.

Reversed and remanded, with directions to hear the petition, and, if it contains of qualified electors more than one-third the number returned by the collector, to grant it and order an election, if all other statutory requirements are fulfilled.