354 H vsv. HARRIS. 1188 HAYS v. HARRIS. 4-3382 Opinion delivered December 4, 1933. i. ELECTIONS—CONTEST OF NOMINATION.—The right to contest the certification of a nomination means the same thing in contests for nomination for county offices as in contests for -district or State offices, except the difference of time within which such contests must be instituted, under_Crawford & Moses' Dig., § 3772. 2. ELECTIONS—TIME FOR CONTEST OF NOMINATION.—An action challenging the canvass and tabulation by county committees in primary elections must, in the case of district and State offices, be brought within 20 days after such canvass and tabulation. " 3. ELECTIONS — TIME FOR CONTEST OF NOMINATION.—In a contest of a congressional nomination, filed later than 20 days after certification of the vote by county committees, but within 20 days after the State 'Central - Committee had cast up the .returns based on such certification, held properly dismissed as not within time. MandaMus to Pulaski Circuit Court, 'Third Division; Marvin Harris, Judge ; writ denied. . June P. Wootert and A. 0. Frankel, for appellant. W. G. Riddick and R. D. Campbell; for appellee. PnR CURIAM. This proceeding is a continuation of the litigation reflected in the following opinions of this
TIAYS V. HARRIS. , 355 _court: Terry.v.--Harris, ante p. 60, and Terry y. Harris, ante, p. 174, in which there Was an opinion per cur.iant. It appears that, upon the rendition- of . the opinion per curiant, supra; the contestant, Hays, filed a. second of. snbstitute complaint to . which there was attached jurisdictional affidavits complying with the requirements of § 3772, Crawford & Moses' Digest. A Motion was ,sust tained in the , court below to dismiss this second complaint upon the ground thatithad not been filed within the time allowed by law, and, upon that motion being sustained, the . circuit court made an order dismissing the . suit for that reason, • The contestant .has , applied to us for . a .writ . of man, danius to compel the: . cireuit judge to proceed with the trial of the cause. Upon.oral. argument, before us,.it was agreed by. the parties . hereto that this. prOceeding be treated as an appeal from _this order : of the. circuit court, and we are asked by both parties to decide the case upon its merits. We have for decision therefore the question, whether this second . complaint was filed within the time allowed by laW.. . The applicable statute is § 3772, Crawford & Moses' Digest, which reads as follows : "A . right of action is hereby conferred on any candidate to contest the certification of nomination ..or the certification of vote as made by tbe county central committee. The action shall be brought in the circnit court. If , fOr the. office of representative or a county or township , office, in the • ircuit court of the county ; and if for a ,circuit or district office, within any county in the circuit or district wherein any of the Wrongful acts occurred; and if for United States 'senator or .a State office; in the. Pulaski. Circuit Court: The- complaint shall be -supported by the affidavit of at least ten rep.- utable citizens, and shall be filed within ten days of the certification complained of, if the . complaint , is against the certification in one . county,, and within twenty days if against the. certification in more than one .county. The cOmplaint- shall be answered . within ten days." It will be remeMbered that.the . original complaint has been dismissed, and this second or substituted complaint was filed much later than twenty days -after the certifica-
356 HAVs V. HARRi g. [188 tion of the vote as made by the . respective county committeeS, but within less than twenty days after the chairman arid secretary of the State Central Committee had 'cast rip such returns based on said certifiCation and had certified the 'congressional nominee to the State Election Board, 'as required by the : opinion deliVered October 30,4933. . Section 3772, Crawford & Moses' Digest, copied above, applies alike • to contests for corinty, district and State offices. The only difference, in respect to the time within which such contests must be instituted, is that in cases of contests of "the certification complained of " for- nomination for county offices, the Suits must be instituted within ten dayS, whereas- suCh suits in regard to the "certification in mOre than one county" shall be begun within twenty days after such certification. Obviously, the right of action . conferred by the . statute to contest the certification of noMination or the certification of the vote means the same thing in contests for nominations for county offices as in 'cases of centests for district or State offices. The only distiriction Made by the statrite is in the difference Of •time within which such contests Must be instituted. This court had occasion in tbe case of Wilson v. Latid,-1-66 Ark: 182, .265 S. W. 661, to Construe the provisions of the statute arithorizing Contests for nominations, and to determine whether . the provisions in regard to contesting certificates of nominatirin operated to extend tlje time within : which a contest must be brought to contest the certificatien of the vOte by the county commit: tee, and it was expressly held that the liMitation of the tithe within which a contest of the certification of tbe votes must be institnted was not extended by the provi sioni of the . statute that : there might be a contest of the certification of the nomination. •- The facts in the case of WilSon:v. Land, supra, were : The countY central committee. of Jefferson County met on August 15, 1.924, and canvassed tbe returns of the election held in that county and filed With that committee, as required by law: This committee ordered that the nominees be certified to tbe county convention, which was
ARK.] HAYS V. HARRIS. 357 to meet on August 18, 1924, it being intended thereby -to have the county convention certify the nomination pursuant to the tabulation of the county committee pre, viously made. The county cenvention was held on August 18, and a certificate of nomination for the office of county treasurer was awarded • to the , candidate whose nomination was later contested. • This contest was filed on August 26, 1924, in proper form, accompanied by the jurisdictional affidavits. : It is obvious that this was within ten days of the date upon which the nomination had been certified, but was 'one day more than ten days after the certification of the vote. Upon these facts it was contended that the contest had been instituted within the time limited by law, the contention being there made, as it is here, that a contest might be instituted within ten days of either the,certifiCatiOn of the vote or the certification of the nomination. , • But, in overruling that Contention; it was there said: "As • we have already seen, :the right . fo contest a primary election is . purely statutory, :and the Legislature may confer it upon such terms as if sees fit. Thus it will be seen, that a right of aetion is given any candidate to conteSt the certification of vote as made by the county central committee. The stattite is unambiguous in 'this reSpeet, and it was evidently the intention of the Legislature to provide for a speedy hearing and determinkion Of a contest. In our opinion, it was not necessary, under the statute, that contest proceedings should be delayed until a certificate of homination had been . actually issued by either the county convention or by the county central committee. We think that, when the county central 'committee has canvassed and" tabnlated the votes, and it is ascertained by this canvass and tabulation Which candidate has received the , greatest number of votes, the-opposing candidate may at once; and must, within ten days thereafter, begin his contest -proceedings although no certificate of nomination has been issued." It was there held that, inasmuch as the contest must be instituted within the time limited by law (which, in the case of county offices, is ten days and in the case of State and district offices it is twenty days), there . was no addi-
- 358-. HAN S v. HARRIS; 1188 tional extension of time, because the statute conferred the right to contest the certification of the nomination. In other words, any contest, which challenges the canvass and tabulation by the county committee or committees, must be instituted within the time limited after that action had been taken, and was not extended by the right which was conferred to contest . the certification of the nomination as well. If effect is given to this decision, it follows that any suit which challenges the action of the county committees must be brought within ten days after such action- in the case of county offices, and within twenty days in the case of district and State offices. Now, it is easily conceivable that a county convention, in the case of a county _office, might take such action in regard to the vote as canvassed and tabulated by the county committee as to change the result ascertained and declared by the county committee, in which event that action of the convention might be contested,- and a suit for that purpose could be brought within twenty days after that action was taken. - So, here, it appears, from the opinion in the case of Terrj v. Harris, involving this identical election, the State convention, in . ordering the election here contested, has provided that "the returns of the election shall be made and certified to the secretary of the State Central Committee within the time after said special primary election is held as is now provided by law for such returns, and certification made following general primary elections. The. chairman and secretary . of the State Central- Committee will cast . up such returns based on said certificates and certify the nominee to the State tlection Board." Now, we do not understand it . to be_ alleged that the executive officers of the State committee have taken any action or have- done anything, except to perform the ministerial duty of casting up the returns based on the certificates delivered to them, as required by the resolution of the State committee pursuant to and under the au-. thority of which the election was held. Had it been alleged that these executive officers of the State commit-
tee had fraudulently or erroneously performed this ministerial duty, that action would be the subject of contest, and such contest could be instituted within twenty days after the action had been taken.. But it is alleged only, as we understand the record before us, that these executive officer's. have • only dis-. charged this ministerial duty, and there is no allegation that they have done any act which itself affords ground for contest. ' • • • On the contrary, it is obvious that the contestant now seeks, as he sought in . his original suit, to question the votes cast in the various counties of the Congressional District as compiled and tabulated by the respective county committees. - This can not be done under the interPretation given § 3772 in the:case of Wilson v. Land, supra, for, as was said in that case, it was not necessary under this statute that the contest proceeding should be delayed until certification of nomination had actually been issued by the agency clothed with that authority. • The circuit court was correct, therefore, in holding that this second suit Ivas not filed within the time allowed by law, and it was properly dismissed for that reason.
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.