ARK.] COUNTY BOARD OF ELECTION COMMISSIONERS 341 OF LONOKE COUNTY V. WAGGONER. COUNTY BOARD OF ELECTION COMMISSIONERS OF LONOKE COUNTY V. WAGGONER. 4-3834 Opinion delivered February 11, 1935. i. com . l . . . ..Ts—JuRISDICTION OF ROAD TAX CONTEST.—The circuit" court has jurisdiction of a contest , to determine whether the three-mill road tax was adopted by the voters , of a county. 2. COURTS—JURISDICTION OF COUNTY cousTs.— The jurisdiction of county courts depends entirely upon the terms of constitutional and statutory provisions, and they cannot exercise any powers
342 COUNTY BOARD OF ELECTION COMMISSIONERS [190 .OF LONOKE COUNTY V. WAGGONER. other than those which have been expressly . conferred upon them or which are necessarily implied from , those conferred. Prohibition to Lonoke Circuit Court; T4 7 • J. Wag-goner, Judge; writ denied. Reed <6 Beard, for petitioners. Trimble, Trimble ce McCrary and Chas. A. Walls, for respondent. • • MEHAFFY; J. .At a general election held in Lonoke County on November 6, 1934, the question of the three-mill road tax was submitted to the voters. The returns of the judges and clerks were made in . the proper way, canvassed by the county board of election commission-'ers, and the canvass of the returns showed that the road tax had been defeated by 23 votes. The board of election commissioners, upon request, recounted the . ballots, and on the recount it was shown that the three-mill road tax •was defeated by 119- votes. The, -result of said election was duly certified as required by law. Thereafter, on November 17, 1934, J. V. Ckutcher, as county judge of Lonoke .County, and as a citizen and taxpayer of said •county, 'filed in• the circuit court his Complaint against the county board of election commissioners, charging certain . fraudulent practices in holding tbe election, and seeking to contest said election on the question of the road tax. . . The judge of the Lonoke Circuit .Court issued an order taking the ballots,. poll books, tally sheets and other election supplies from the custody of the board ok election commissioners, and placed them in the hands of E. S. Smith, and restrained and enjoined the commissioners from certifying the result of said .election on the question of road tax: 1t was 'discovered, however, that the certification had been made before the service of the restraining order. On January 7, 1935, the county board of election commissioners 'filed their motion to dismfss the cause seeking to -contest the election, on, the'• ground that the circuit court was' without jurisdiction. The motion 'was overruled, and exceptions -saved. • On January 14, 1935, the county board of election commissioners filed in this court a.petition.for a *writ of
ARIc.] COUNTY BOARD OF ELECTION COIMISSIONERS 343: OF LONOKE . CQUNTY V. WAGGONER. prohibition to prohibit and restrain the Lonoke :Circuit Court and the judge -thereof from proceeding .with said. cause. Article 7, § 28, of the Constitution reads as follows :. " The county courts shall have exclusive original jurisdiction in all, matters relating to county taxes, roads, . bridges, ferries,: -paupers, bastardy, vagrants,: :the :ap-, prenticeship of . minors, the disbursement .of money for . county purposes, and . in eyery:other,,case..that- may,.be necessary to the internal improvement and local concerns of the respective counties...The• county,court, shall be held • by one judge,- except in. cases •otherwise. herein provided.," ; Section 3846 .of Crawford &Moses' Digest provides that a contest of the election of eertain officers, including the judge of. the .county and probate courts, shall., be,,in . the circuit. court of the :eouhty where ,.the contestee, resides, .or, where. the .contestant resides .and the contestee. may be -found. . , Section 3850.of Crawford 8z.Moses', Digest provides - that the contest of the election of county officers-, justices. of the peace, constables ,and other township officers, shall be in the county. court. It .is contended . by. • the petitioners : that,- under the - section of tbe Constitution, §28, ,art. 7,.above quoted, the, county court has..exclusive. original jurisdiction:in this case. , • • • • • . • , . Section. 11 -of . .art„, 7 of. the . Constitution--reads; as - follows : — • '• • - -`` The:circuit court :shalt have -jurisdiction in an civil and criminal-cases the. - exclusive jurisdiction , of.-.. -which-, may not 'be-Nested -in, some' other :court- pro y ided-for by . this -Constitution. •.:-. ' -11,- under § 28 ofart.-7 of the Constitution, the county coda, has jurisdiction; -such- Jurisdiction -is exclusive, and the : circuit court -would, of course, not- have jUriSdiction: • But- unleSs the Constitution- does vest in: the• county court jurisdiction to . try. this':contest; then the circuit court has - jurisdiction: . .--• -• •. - Petitioners cite and rely on Willeford v:Sta-te- e'w,
43 Ark. 62.- The : court in thatease 'had- before if the.
question of the -juriSdietion Of th6 COUtt in the contest of
344 COUNTY BOARD OF ELECTION COMAIISSIONERS [190 OF LONOKE COUNTY" V. WAGGONER. all election 'to determine whether or not the county seat should be removed. The court said: "By § 28 of art. 7, Constitution of 1874, exclusive original jurisdiction is yested in the county court in all matters pertaining to the local concerns of the county. And the removal of a county seat is a matter of local concern." The court also said: " The county court has the authority then to determine in the first instance where the county seat is, and whether the conditions have arisen upon which a removal is required. This may, incidentally, involve the question whether the vote has been fairly taken and the necessity, if fraud has supervened, to purge the polls." Under the law at the . time that election was held and that decision was rendered, the election for removal of a county seat was ordered by the county court on the petition of qualified voters, and the returns were made to the county- court, and the county court had to make all the necessary orders, and, in order to determine whether the county seat should be changed, the county court bad necessarily to inquire into the number of votes cast for and against the change. And this court held that removal of a county seat was a matter of local concern. This decision, however, was rendered in 1884, and the three-mill road tax amendment was adopted in 1899. Petitioners also call attention to the case of Wheat v. Smith, 50 Ark. 266, 7 S. W . 161. That was a proceeding instituted by Smith under the usurpation of office act to oust Wheat, and recover the office held by him. The case was begun in circuit court, 'and the court said: " The plaintiff's action is not a proceeding to contest an election within the meaning of the statute governing contested elections." But there is nothing in that case that touches the case at bar except the following statement made by the court: "But since that decision, exclusive original jnrisdiction in the matter of election contests has been conferred upon the county courts." At that time the law expressly provided that the contest of -the election of clerk should be in the county court. Section 2722, Mansfield's Digest. Petitioners also call attention to the case of Rees V. Steel, 73 Ark. 66, 83 S. W. 335. That was also a. county seat election contest, and has no application here.
ARK.] COUNTY BOARD OF ELEXTION COMAHSSIONERS 345
OF LONOKE COUNTY V. WAGGONER. . The next ease cited is a. question of a contest of the vete on liquor license. The returns under- the law at the time were not only required to be made -to the county .court, but the law permitted the county judge to issue license to sell liquor if a majority voted • for it, but he could not • issue license if a majority of the votes were against it. When the cases relied on by petitioners were decided, the three-mill road tax amendment bad not been adopted, -and the provision of -the Constitution vesting . exclusive original jurisdiction in the county-court has no .application. After -the adoPtion -of the road tax amendment, the case of Adkins v. Harrington, 164 Ark. 280, 261 S. W. 626, was, decided. It was contended in that case that act 275 of the Acts of 1923 was unconstitutional and • void, because- it provided for the payment of the three-mill road tax levied on certain property in Street Improvement District No. 340 and • South . Broadway Annex, to the treasurer of the road district, and was therefore violative of art. 7, § 28 of the Constitution. The court said in the last case: "Long after the adoption of the Constitution of 1874, and the above-mentioned section thereof, Amendment No. 3 to the Constitution- was voted by the people of the .State, and declared adopted on January 13, 1899. By the amendment, it is provided - that the county court shall have the power to levy a road tax not exceeding three mills, , if a majority of the qualified electors of the county shall have voted therefor at the general election preceding such levy. In Amendment No. 3, no provision is made . as to what governmental agency shall receive or disbUrSe the funds collected from such tax. It is only provided therein that such taxes, when collected, shall be used in the respee-five counties for.,the purpose of making and repairing public roads and bridges of the respective counties, and for no other purposes." The'court also , said that, unless there was some constitutional inhibition, the Legislature might exercise absolute control, etc. If the Legislature or any other body may have control of the road tax, then the county court cannot have exclusive jurisdiction. Unless exclusive jurisdiction i§
. 346 [190 vested in 'some. other court, then under § 11 of article 7 of the Constitution, the circuit- court has jurisdiction. The constitutional provision 'vesting in the county courts jurisdiction of all 'matters relating to county - taxes, roads, bridges, etc., does not mean that the county court can try all cases . that might arise affecting roads and taxes. Many cases may arise; and . many have arisen where suits had to be brought with reference to roads, taxes, bridges, etc., and it has never been contended . that the . county • court had jurisdiction to try such . cases. 'The provision with reference to jurisdiction of county courts is somewhat similar to the 'constitUtional provision with reference to -.jurisdiction . of probate courts, and we have said: "Probate" coUrts have no common-law jurisdiction. The nature, extent and exercise of jurisdiction of probate courts depend on the terms of the constitutional and statutory provisions,-and they cannot exercise any • powers other than these Which have . been expressly conferred upon them," or which are necessarily.implied frOm those cmfferred.". Moss-x: Moose,184 Ark. 798,. 44 S. W. (2(1).825. Thisis also true as to.county Courts. .Our conelusion is that the circuit-court has jurisdiction, and the .writ is, therefore. denied. •
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.