132 PENIX v. SHADDOX. [169 PENIX v. SHADDOX. OPinion delivered June 29; 192-5. ELECTIONS—COMPLAINT IN CONTEST.—A. ' complaint in an election contest: which alleges the names of persons, as having voted because their names were not on the tax books as originally delivered to the collector by the clerk or on any supplementary tax book so d ' elivered, though t not folldwing the language of Crawford & Moses' Dig., § 3738, is not demurrable, though it would be open to a , motion -to make , more defihite and certain. . PLEAMNG—WDEFINITENESS.—Where the language of a complaint is sufficient by fair inference to constitute a cause , of action, , a demurrer should not be sustained, but the objecting party may interpose a :motion to make the complaint More definite and : certain. • 3. ' ELECTIONS—SUFFICIENCY ' ` OF COMPLAINT.—A cOmplaint an election , contest which charges in general terms that..plaintiff received a majority of the legal :votes, without specifying, the .number received by each candidate is , imperfect. :Appeal from :Boone -Circuit Cotirt ; J. M. Shinn, Judge; reVersed. • : GI' Mitchell, V. D. Willis' and Geo.'J. Crump, for "A4.513el1arit: ''.'; j ..1:'Sliouse and Woods & Grenhaw, for. appellee. McCuLLoen,,.C. J. Appellant and appellee , were riyal . candidates atffie general election in October, 1924, for.the . office of county and . probate judge. of Boone.County: . They .5ere , the, noMinees respectively. of ,. opposing, political parties. Appellee was -returned, as having been elected, .and,appellant, instituted this contest in the circuit court lkoone County. -.He alleged inhis complaint that he.had :made .demand upon the- election commissioners for. a -recount of the ballot, but- had . been. refused, and prayed for an . order of the coutt requiring the commissioners to recount 'the i kallots-. -The scourt- granted the prayer,' .and there was a recount by:the commissione'rs under order of the court, which developed that according to the ballots which had been cast appellant received a majority of 134 votes. Appellant also alleged in his complaint that there were 1198 illegal votes cast for appellee and a list of those
lic.] PENIX V. SHADD0X. 133 .illegal ballots was appended. The-allegation with respect to these . votes appears in the complaint as follows': t` That s • aid voters procured poll tax receipts from the collector ,.of Boone. County, Arkansas,,whose names were no-Con the original tax .books as deliveied to . said collector . by the clerk:of the county court of Boone County, ArkanSas, or _on any supplemental tax book made : and delivered: tolsaid collector, by_said clerk, and that the collection of the same •herefor when said tax was not on said tax , books or any supplement thereto was contrary to. the law: and a felony under ihe statufes of the State of Arkansas, and he therefore avers that a poll tax receipt prociired in this.,-wuy would not confer on the persOn so prOcuring it the right to vote on the same, and that the following illegal votes were easf for Bob Shaddox, and plaintiff states that after ' eliminating said illegal votes the. Plaintiff. received a .1Urge, majority of the votes cast at said ' election. That the naMeS of such illegal votes cast against this - plaintiff .were as follows (here follows the list of 1198 .narhes)." The court sustained . appellee's demurrer to the above 'paragraph, :and ,appellant deelined to , plead _further, and fhe eomplaint . was disinissed. -,• . •: • Appellant -contends that the language of his corn-, plaint ..in.. the paragraph ,set forth , abOVe is sufficient , .to . Show "that there were enough,illegal_votes Cast for appel-lee to. cha , nge, the-result , of the * election,. in* that, there- ..y,sere 111198_ votes_ 'Cast by , p p rRnn Q , -Who ,had not Paid poll , taxes . legally . assessed against them. , COunsel. rely, , on, the deci-. sion of this . court in the, recent ease of Cain, y. Cort. ,Lee, 168 .A. A. k: . 64, that pe l -swis 'whose namcs. were ,added,to.the •oll tax list by the,collector without having hemcertificd by the_county clerk were not legal voters; and they , con-;tend -that.:the Jangnager of the complaint is sufficient , to ;bring this case within rthe cOntrol l of thatrdecision, 9n . tihe r . • • .. .ether, hand, it _is. contended by couusel for appellee that ..the. language of the complaint is . insufficienftu,show, :that the' . specified illegal voters were persons Who had not been
134 PENIX V. SHADDox. [169 properly assessed and certified by the Clerk. They contend that the statement in the complaint that said voters were persons "whose names were not on the original . tax books as delivered to said collector by the clerk of the county courfof 13oone Cdunty, Arkansas, or on any supplemental tax book made and delivered to said collector by said clerk," did not constitute a• sufficient charge that those persons Were voters whose poll taxeS Were not assessed by the county clerk and certified to the collector as specified in the statute, which reads as follows: "SeCtion . . 3738. At any time after the assessment lists have , been delivered to the .county . clerk for the purpose of enabling him to prepare the tax hooks for the collector, any person whose name has for any cause been omitted from the said lists may have his name included in said list and placed upon the tax lists in ' the hands of the collector, . .6y application to the said clerk at any time before the Saturday next preceding the first Monday. of July, when the collectOr is required to make his. final §ettlement with the county Court. If the Said application shall be made after the tax books have been delivered to the Collector, the clerk shall certify the said supplemental asSessment, which he is hereby authorized to make, to the Collector, 'and shall , charge to ' said collector the athonnt of :tax an: d penaltieS so added. In addition to the sum assessed against any such applicant for poll 'tax, the Clerk shall extend against him a penalty for failing to retUrn his assesSment to the 'assessor at the proper time, one dollar—twenty-five cents of which shall go te the clerk for his services, and seventy-five cents shall gO into the fund for general county expenses; and if said application shall be made after the 10th Of April the4 collectOr shall collect a penalty of twenty-five cents for a failure 'to pay the said poll tax at the . time pre-'scribed for making payment : of taxes without penalty. In addition to the assessment of poll tax in such cases,
ARK.] PENIX V. SHADDOX. 135 it is hereby made the duty of said clerk to assess any property held by said applicant, and which, for any reason, has been omitted from the tax books." Craw-. ford & Moses' Digest. -It will be observed from -reading the above statute that it provides that after the tax books have *been delivered 'by the clerk to the collebtof : a person whose name has been oniitted may have it included by the clerk, and the clerk "shall certify the said supplemental asSessment" to the collector. The language of the complaint is that the persons specified as having voted illegally were those whose names were not on the tax books as originally delivered t6 the collector by the elerk,'" or on any supplemental tax book made and delivered to said collector by said clerk." The language of the complaint does not follOw the :language of the statute, in that the statute refers, not to supplemental tax book, but to the certificate of 'a supplemental assessment. We are of the opinion, however, that it is fairly inferable from the language of the complaint that it was meant to Charge that the names of the persons specified in 'the complaint. did not appear either on the original tax. books or .on the SUpplemental assessment list certified-by the clerk, and that the paythent and collection of • the Poll tax was'illegal within the meaning of our decision in Caiii v. Nil-Lee, supr a . . It is an instance, we think, 6f' an imperfect allegation, but it is a defect which should have been reached by a motion to make more definite and certain - and not= by demurrer. It 'is a familiar rule that where the: language of a 'complaint is sufficient by fair inference to Constitute a cause of action, a demurrer shoUld 'hot be syStained, kit the- objeCting party may interpoSe a motion to make more definite and certain. ..Our conclusion is that the, count erred in sustaining the .detnurrer. The complaint merely charges in general tenns that appellant ireceived„a majority of the-legal votes, without specifying the number of legal votes received by . each
candidate, and the coinplaint is imperfect in this respect, but the demurrer does not reack to that point, and the sufficiency of the complaint has not been challenged on that ground. • The judgment sustaining the demurrer on the,ground mentioned* above is therefore reversed, land the cause remanded with .directions to overrule the demurrer, and for further proceedings not inconsistent, with this opinion.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.