80 BROOKS V. PULLEN. _ [187 BROOKS V. PULLEN. 4-2970 Opinion . delivered March 27, 1933. 1. - MANDAMUS — INFERIOR OFFIc RS. — Crawford & Moses' Dig., §: 7020; authorizing the circuit court to issue mandamus to "inferior officers," empowers that court to issue the writ to election judges. 2. M ANDAMUS-,1NSPECTION OF TALLY SHEMS AND POLL BOOKS.— . Crawford & Moses' Dig., § 3833, requiring election judges to retain "free for inspection of all persons" the tally sheets and poll books, held mandatory. Appeal . from 'Washington Circuit Court; John S. Combs, Judge; reversed. • John Mayes and C. D. Atkinson, for appellant. •:George A. Hurst and 0. E. Williams, for appellee. SMITH, J. Appellants, Brooks and Dodd, filed, in the circuit court -of Washington County, a petition for a Writ of mandamus, which contained the following allegations.: Petitioners are residents and qUalified electors- of Wash-ington County, and were candidates, in the general election held ifi said county on November 8, 1932, for the offices of circuit clerk and sheriff . of -Washington County,
ARK.] BROOKS V. PULLEN. 81 respectively. Certain electors of the county, made -par-- ties defendant, served -at said election as election judges in the wards of the- city of Springdale and- in certain townships of the 'county, and, by virtue Of their service as Such judges of election, have in their po8se'ssiOn one copy of the tally sheets and poll books kir •their respective voting- precincts. That• § 3833,- Crawford & MOSes' Digest,. which is a portion of the chapter • on Elections, provides that one of the certificates, tally sheets and poll books Aall be : retained by the judges free for the inspection of all person's. That these petitioners, individually and through their attorneys, agents and representatives, have made demand for an inspection of the certificates, tally sheets and poll books in the various voting precincts . thereinbefore nained of the election judges in their respective precinets, and that such election judges - have refused to allow an inspection of such records, in violation of the laws of the State of Arkarisas, and with 'the corrupt intent and purpose of fraudulently • defeating these plaintiffs in their civil rights. That the County eleetion commissioners' have certified their opponents as having been elected to the offices - for which petitioners were candidates, and "these plaintiffs are preparing contests of said election, and, in order to comply , With the law Of the State of Arkansas • in preparing their contesfs, it is necessary- för them' to inspect the certificates, tally sheets and poll books of the respective voting . Precincts hereinbef ore set forth." That, in preparing their notice 'of contest • of Said election, petitioners are required to set forth in said notice the names of the persons who voted in said precincts whose right to vote they challenge, together with their objections to -the , qualifications of such voters, and, in order to do this, it is necessarY •that they examine the poll books in said voting-precincts-and obtain therefrom a list of the names of such persons voting in such pre-einets. That four hundted -persons- voted in said precincts whose right to vote they challenge. - , Petitioners further alleged that "they have exhausted every means at their command arid every other • remedy 'aVailable to them Tor obtaining an examination
82 BROOKS- V. PULLEN. [187 of the poll books and other records in the possession of the election judges in said precincts." -• : It was alleged, in an amended petition, that, since filing the original petition, certain oE the judges of election, made parties defendant originally, had permitted an inspection of the poll 'books ,in their possession, and the petition, was dismissed:as to subh judges. :Upon these allegations, petitioners prayed that the judges who still refused petitioners theright to examine the , poll books and tally 'sheets in• their possession "be notified of this proceeding, and be required to appear and' show cause why -they have refused 'to perform their official duty and obey the laws of -the State of Arkansas in relation to the matter hereinbefore set •forth, and that upon such hearing a writ of mandamus be issued commanding and &impelling the said defendants to perform their official duty and allow these plaintiffs,,their . agents, attorneys and representatives,. to inspect said, records, and make such copies as they may see fit." A demurrer was filed to the petition, which was sustained . by the court, and, petitioners electing to stand on - their petition, the same was dismisSed, and this appeal is frond . thatorder. and judgment of the:court. , For the affirmance of, the,judgmentof the court belew it is insisted that the portion of § 3833, Crawford & Moses' Digest; quoted in the petition, is not mandatory, and many cases are cited ,to the effect that mandandus will not issue 'to; control the ,discretion 'of an officer„ election or 3ther-wise, and that such an officer will not be required by man-damus to perform an act not:required of him by law. . . Section 7020, Crawford & Moses' Digest, confers upon circuit courts the poWer to issue writs of mandamus to the courts of probate, county courts, justices of the peace, and all other- inferior- officers in their respective circuits. This power has been exercised in many cases found in our reports. Section 7021, Crawford & Moses' DigeSt; defines the writ of mandamus as "an order of a court of competent and original jurisdictibn commanding an exe'eutive or ministerial officer to perform an act, or omit to l do :an act, the .performance or omission of which is enjoined
ARK BROOKS V: PULLEN 83 by law,- and iS granted On the' motion' Of the 'party aggrieved, or Of"the State; when Ahe inter affected." ;. eSt.:is • -Election judges are officers within the 'meaning Of these statutes and have certain duties to perform which are defined by law. By § 3832, Crawford & MOses' DigeSt, _they are required, after having held the election, to count the ballots, and to prepare and sign in duplicate a certificate sho-Wing the number of votes given for each person, and the office for which such Votes we're given, and to make a certificate showing these facts. This section further provides that; "after making such certificates, the judges, before they disperse; shall put under , cover one of said tally 'sheets, certificates and poll books and seal the same, and direct it to the board of county election commissioners." By ,§ 3833, CraWford & Moses' Digest, it is provided that the 'said certificate and the ballots, sealed in separate packages, shall be conveyed by one orthe judges, to be determined by lot, if they cannot other-Wise agree, to the county election commissioners, and that "the other certificates, tally sheets and poll books shall be retained by the judges, free for the inspection of all persons"; and' further : "It shall be the duty of the judges_ of election of the seVeral Piecincts; after the ballOts shall have been inspected and counted, tc y Securely envelope all suCh lots and send same, .together with the certificate, tally sheets and poll books as aforesaid, to the County election commissioners, to be :kept as hereinafter provided." T , he present' proceeding is not therefore one to eStablish a right, but is a preceeding, under authority of law, clearly given to all persons to inspect the certificate; tally sheets and poll books which the law requires the judges of election to keep for that purpose:-: The petition for mandamitS makes Clear the' purpOse of petitioners in institiiting , thi'S proceeding, which, is to &imply with the requirements_ of § 3850, Crawford & Moses' Digest, in instituting contests for the offices TOi which petitioners were 'candidateS. This section defines the jurisdiction of the counfy eouitto hearand'detetraine e6ntests for the office'S Of circuit : clerk and sheriff, 'aiid
certain. other 'offices, _and 1. equires. that "if any _objections be*made to the qualifications of voters, the names of such voteis, with the objections, shall be stated in the .notice (of contests)." An examination and inspection of. , the poll books is essential , to comPly with this requirement. Petitioners are seeking to compel the election officers —the judges of the . election—to perform a duty imposed by law, in the performance of which the officers have no discretion, to-wit, to keep the tally sheets and poll books, "free for the inspection of all persons." Petitioners show a substantial prejudice to themselves as candidates for public office if that : right is denied them. We_ therefore construe the provisions of the statute as being mandatory. The writ of mandamus should therefore have been awarded as prayed, and the judgment of the court below will be reversed and the cause remanded, with directions to make such orders as may. be necessary to enforce the legal rights which petitioners allege and seek to inforce. HUMPHREYS, J., dissents.
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.