-436 ALFORD V. STATE. [69 ARK. ALFORD V. STATE. 'Opinion delivered June 29, 1901. CONSTI1C lIONAL LAW—NUMBER OF JUSTICES OF THE PEACE. — ACt Febru-ary 16, 1893, § 2, prescribing "that, in ascertaining the number of justices of the peace to be voted for and commissioned, the number of the votes cast in the general election next preceding shall be taken as conclusive of the number of electors in the township," is not * in conflict with section 39, art. 7, of the constitution, providing that "fcir every two hundred electors there shall be elected one justice of the peace." Appeal from Garland Circuit Court. ALAXANDER M. DuiTIE, Judge. A. Curl, for appellant. • The court erred in overruling appellant's demurrer, and in its declaration of law holding section. 4309- of Sandels & Digest constitutional. Const. art. 7, §§ 38, 39; ib. art. 3, Sec. 1; 32 Ark. 131; 45 Ark. 400; Const. art. 13, § 3. BUNN, C. J. This is a proceeding, in.the nature of a quo warranto proceeding, to try the title of the appellant, J. W. Al-• ord, to the office of justice of the peace of Hot Springs township, in Garland county, this state. The respondent answered, denying tbat he had usurped said office. He sets forth his personal qualifications to hold the office, and claims that he was elected as such justice of the peace at the general election held September 4, 1900, and was commissioned as
69 ARX ALFORD V. STATE. 437 such on the 31st October, 1900, and duly qualified on the same day, and then entered upon, ,and has since' continued to perform, the duties of said office. Respondent was the ninth, in order of the votes received, of personi3 voted for at the general election in 1900 for the office of justice of the peace in said township. The controversy is over the number of justices of the peace to which said township was entitled at the time. The constitutional provision is as follows: Art. 7, sec. 39: "For every two hundred electors there shall be elected. one justice of ;the peace; bht every township, however small, shall have two justices of the peace." In Ws answer, which calls in question the constitutionality of the act approved February 16, 1893, entitled "An act to determine the number of justices of the peace in each township," the respondent shows that 1,346 votes were cast at the general election in 1898; and that 1,800 votes were cast at the general election•in 1900, in said township, making a difference of 454 votes increase in the two years. Under the provisions of the act of 1893, the township was entitled to only six justices of the peace, to be elected at the general election in 1900, as that act bases the calculation of the number upon the iote cast in 1898 ; but if the vote of 1900 be taken as a basis, as respondent contends, then the township would be entitled to nine justices of tlie peace, and he was elected among the nine, and so commissioned by the governor of the state. The relator demurred to the answer, and the question of the constitutionality of the act of 1893 was thus raised. The second section of the act is the only part of the act which affects the question under consideration, and that section reads as follows, to-wit: "In ascertaining the number of justices of the peace to be voted for and commissioned, the number of votes cast in the general election next preceding shall be taken as conclusive of the number of electors in the township " The contention of the respondent is that this act is in violation of the constitutional provision as to the number of justices of the peace to which each township is entitled, and the reasoning is that the number of votes cast two years previously is no just criterion by which to determine the number of , justices of the peace to which a township is entitled at the ensuing election, and that such a rule is in fact in violation of the constitutional provision. It is evident that the constitutional provision is not, in•the true sense, self-executing; that is to say, that it makes no provision
448 ALFORD V STATE [69 ARK. for determining the number of yotes from which the number of jnstices l ot the peace is to bp determined; " or at what Vine' the number . 4 votes s t-9' lie cast or Otherwise shOwn. it' is ' eVident, also, Aat, except 1?y actual censiis immediately preceding' the election at which these jnitices of the peace are to be eieeted, exactness nor approximation tkieto may -1 , p attained by any known method. gyen the number of pall;tax payers, as nsed in cases of ,glections for i tjle removal of county seats, is not or may not he approximatety accureA pnder cirenOtences. It was the duty and within to pR oyince o f , :the legisletore to adopt some method pf 'determining the number Of electors in e trnynihim in order -tp determine therefrom the number of justices of ' the peaCe to which it 0 entitled, for, witho4 the establishment of spell.' a method, there ponld aip , no elegtion of certain yalidity. The plan adoaed. by *the , act of 180 is certainly nOt accuratc, for changes in the nninher of electors aro et lea i et liable to take plece within two years; hut the question realfy addressed tO the legislature - was, not to adopt a perfect method, put the most perfect available, under the circumstances. In its final con'ousion on the sub-jpci it doubtless reasoned tht the' harm that might bg done hy the adoption of the beit available, but inaccurate, method wOUld by IN means , equal d commensurate with the eyil arising from the absenee of all methods, or from the -expense' inconyenience of endeavpring io make anything subsmient to mere accnracy Besides, it doubtless considered the method adopted onlY temporary #?.. any syil effects it might have, if any should result therefrom in any given case. In o-thu words, the act in question waS donbt!; less-the embodiMent of the yery'best inethod the legisiatnre'eould coneelyc , q t ciretunstences. This being the case, we do not feel at liberty to declare tile enactment onconsti i' ntional. rop dilemma of ths legislatire is emphatO when it 0 rementerk that, under our prefietit election system 'then ii vOgue, 'it 0 ab(4- • lutely neci eesm to _determine the nunter of jnstice „ ! of 'the peace mil.t Pf R sgin *I'dPuIPKTR- The judgment of the lower court is therefore affirmed, and said act is cohatitutional.
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.