Patterson v. Adcock , 157 Ark. 186 ( 1923 )

McCulloch, C. J.

There is a special stock law in Miller County, enacted by the General Assembly of 1921 (Special Acts 1921, p. 1), which provides, in substance, that whenever twenty-five per cent, of the electors of any township shall petition the county court for the privilege to vote on the question of restraining’ stock in that township, “the county court, or the judge thereof, shall make an order for an election in such township,” the election to be held at the general election, if there be one within six months of the date of the filing of the petition, and if not, at a special election to be held within ninety days after the filing of the petition; that notice of the election shall be given by. publication in a newspaper, and that the election shall be held in accordance with the general election laws of the State. The statute further provides that the judges of the election shall make returns to the county election commissioners, who shall canvass the returns and make and file a certificate of the result with the county clerk, and publish the same for one insertion in a newspaper having a circulation in the township. It is further provided that, if a majority of the vote be in favor of restraining stock in the township, “the county court, or judge thereof, shall, immediately after the filing of said certificate by the county election commissioners. make ail order restraining such animals specified in the petition from running at large in said township.”

A petition was filed with the county court of Miller County, asking that an election be held in Sulphur Township, pursuant to the terms of said statute, for the purpose of putting the law into effect in that township. An election was ordered by the county judge, or county court, and was held in accordance with the order, the majority of the votes, as certified by the election commissioners, being in favor of putting the law into effect in the township.

Immediately after the filing of the certificate by the election commissioners, appellees, who are residents and property owners in Sulphur Township, filed in the county court a petition alleging errors, irregularities and fraudulent voting in the election, and alleging that a majority of the qualified electors voting at the election did not vote in favor of putting the law into operation. The appellants appeared in response to this petition and asked that they be made parties for the purpose of resisting it, which was done.

Appellants demurred to the petition in the county court on the ground that there was no authority for the county court to hear a contest of the election, and the county court sustained the demurrer, and entered an order, in accordance with the statute, restraining the running at large of stock in the township. Appellees then filed their petition in the circuit court of Miller County, praying for a writ of certiorari to bring up and quash Ihe order of the county court ordering the election and entering the order restraining the running at large of stock. They alleged in their petition that the order of the county court for the election was void for the reason that twenty-five per cent, of the electors of Sulphur Township had not petitioned the court, and that the election was void for the reason that notice had not been published in the manner prescribed by the statute.

Appellants appeared and demurred to the petition, and the court overruled the demurrer, and appellants stood upon the demurrer without pleading further, whereupon the circuit court entered a judgment quashing the orders of the county court, and an appeal has been prosecuted from that judgment.

The county court, or the. judge thereof, in making the order for the election and entering the order pursuant to the election acted ministerially, and not in a judicial or quasi-judicial capacity. Thompson v. Trice, 145 Ark. 143; Capps v. Judsonia-Steprock Road Improvement District, 154 Ark. 46.

The order restraining the running at large of stock was a mere entry of the result of the election as certified by the election commissioners, and was likewise ministerial in its nature.

Certiorari will not lie to correct a purely ministerial act, even though the performance of the act involves- discretion. Pine Bluff Water & Light Co. v. Pine Bluff, 62 Ark. 196; McConnell v. Ark. Brick & Mfg. Co., 70 Ark. 568: State v. Railroad Commission, 109 Ark. 100; Hall v. Bledsoe, 126 Ark. 125.

The statute contains no provision conferring upon the county court authority to hear a contest over the result of the election, but if that court-possesses jurisdiction to hear such a contest — which We do not deem it necessary to decide at this time — a review of the judgment in such a contest must be by appeal and not by certiorari, unless the judgment is void on its face. Pritchett v. Road Improvement District, 142 Ark. 509.

Conceding, as before stated, that the county court had jurisdiction to hear a contest, the judgment of that court sustaining the demurrer and dismissing the petition was not void on its face, however erroneous it might have been.

The general statutes of the State provide for appeals from all judgments of the county court, and an appeal might have been prosecuted under that statute. Crawford & Moses’ Digest, § 2287; Missouri Pacific R. Co. v. Conway County Bridge District, 134 Ark. 292.

It follows therefore that the judgment of the circuit court is erroneous, and the same is reversed, with instructions to sustain the demurrer of appellants and quash the writ.

It is so ordered.

McCulloch, C. J.,

(on motion to modify the judgment and opinion of this court). Counsel for appellants insist that the directions to the lower court should be to. quash the writ of certiorari which brought up for review the proceedings in the county court, and affirm the judgment of the county court, in accordance with the rule of practice announced in the case of Bertig Bros. v. Independent Gin Co., 147 Ark. 581.

In the case referred to there was a judgment of the circuit court, and, after reviewing it on certiorari, we found that the judgment was valid on its face, and we not only quashed the writ but affirmed the judgment. The difficulty, however, in the present case is that, according to the views expressed in the original opinion, there was no judgment of the county court to affirm. There was merely the order' of the county court, or county judge, made in a ministerial capacity and not in any judicial or quasi-judicial capacity. All that can be done now is to quash the writ of certiorari, as was directed in the former opinion and judgment of this court.

It is insisted, further, that we should decide whether or not the county court had jurisdiction to hear the contest, and, if not, where the jurisdiction vas vested.

The statute under which the proceedings were had in the organization of the district makes no provision for a contest before any court or other tribunal, nor is there any other statute which provides for a contest of an election of this kind. The provisions of the Constitution of 1874 and all of our general statutes on the subject of contests of elections relate solely to contests of 'elections of public officers. It is clear therefore that, since there is no statutory provision for hearing a contest of this sort in the comity court, such jurisdiction cannot be there exercised. In the former opinion we refrained from passing on that question, but we deem it proper now to extend the opinion by expressly holding that there is no authority for such a contest in the county court.

The further inquiry presents itself as to where the jurisdiction rests. In Harrington v. White, 131 Ark. 291, we permitted the exercise of jurisdiction in such a ease by the chancery court, without deciding whether the jurisdiction should properly have been exercised by the circuit court or by the chancery, court. All unassigned jurisdiction under the Constitution is vested in the circuit court (art. 7, § 11, Constitution of 1874), and it has been held by this court that jurisdiction in election contests not otherwise provided for fall within the jurisdiction of the circuit court under this provision of the Constitution. Payne v. Rittman, 66 Ark. 201; Whittaker v. Watson, 68 Ark. 555; Sumpter v. Duffie, 80 Ark. 369.

It follows from these decisions that, where nothing is involved except a contest of the result of an election, the circuit court has jurisdiction. This, however, does not exclude the jurisdiction of the chancery court under all circumstances. On the contrary; we are of the opinion that where property or contractual rights are involved in the result of an election putting into force a statute like the one involved-in this inquiry, the chancery court has jurisdiction to hear and determine the contest and to afford relief where the statute has not been properly put into force. 8 Standard Proc. p. 16; Red River Furnace Co. v. Tenn. Central R. Co., 113 Tenn. 697; Pickett v. Russell, 42 Fla. 116; Wilton v. Pierce County, 61 Wash. 386.

It would be premature to discuss now the limitations upon the exercise of this jurisdiction, but we merely content ourselves by deciding that either the circuit court or the .chancery court has jurisdiction under certain circum- ' stances to hear and determine a contest like the one involved in this case.

We do not think that the validity of the statute authorizing the formation of the district is affected by the fact that the statute makes no provision for a contest-of the election. If a remedy exists in any of the courts under the Constitution and general laws of the State, the spécial statute is not invalid by reason of its failure to provide a remedy.

'The motion to modify the judgment of this court is overruled.