Beene v. County Board of Education

231 S.W.2d 594, 217 Ark. 553, 1950 Ark. LEXIS 461
CourtSupreme Court of Arkansas
DecidedJuly 3, 1950
Docket4-9266
StatusPublished

This text of 231 S.W.2d 594 (Beene v. County Board of Education) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beene v. County Board of Education, 231 S.W.2d 594, 217 Ark. 553, 1950 Ark. LEXIS 461 (Ark. 1950).

Opinion

Ed. F. McFaddin, Justice.

This appeal-stems from the efforts of two School Districts to consolidate and thereby avoid the effects of Initiated Act No. 1 of 1948,1 since, united, the two Districts would have had more than 350 pupils. The Districts, both in Columbia County, were Atlanta School District No. 9 (hereinafter called “Atlanta”), and Calhoun District No. 3 (hereinafter called ‘ ‘ Calhoun ”).

On November 30, 1948, a petition was filed with the Columbia County Board of Education, purporting to contain the signatures of a majority of the qualified electors of the Atlanta District, and praying that Atlanta be dissolved and its territory annexed to Calhoun, whose School Board had duly certified consent to such annexa-tioii. This proceeding was unde]- Ark. Stats. § 80-408, as modified by $ 80-418.2 The Comity Board duly advertised that the date of the hearing on the petition wonld he January 20, 1949; and at the meeting on that date, a number of the petition signers, by written demand, had their names removed from the petition, as provided by said § 80-408. With such names removed, the County Board found that the names remaining were less than a majority of the qualified electors of the Atlanta District; and, accordingly, the County Board dismissed the petition.

Appellants then appealed to the Circuit Court where there was a lengthy trial on the question of whether the names remaining on the petition constituted a majority of the qualified electors of the Atlanta District. The Circuit Court found that there were 138 qualified electors in the Atlanta District; and that the petition contained the names of only 68 qualified electors. Accordingly, the Circuit Court dismissed the petition. Appellants bring the case to this Court and claim that the Circuit Court was in error: (I) in holding certain persons to be qualified electors; (II) in refusing to allow certain names to be restored to the original petition; and (III) in holding-other names properly stricken from the original petition. We consider these contentions:

I. Holding Certain Persons to Be Qualified Electors. Section 80-408 Ark. Stats, says that the number of qualified electors “ . . . shall be determined as of the date said petition is considered by said county board of education, . . . ” The County Tax Collector produced the list of all persons who had paid poll tax in the Atlanta District from October 2, 1947, to October 1, 1948. The Court then proceeded to add the names of others shown to be qualified electors, and to strike from the poll tax list the names of some shown to have abandoned residence.

A. “Maiden Voters.” To the list of qualified electors, the Court added three “maiden voters” — i. e., those who recently became of age. They were: T. C. Ware, who became twenty-one years of age on December 8, 1948; Thurston Ware, who became twenty-one years of age on May 21, 1948; and Curtis Lee Wyrick, who became twenty-one years of age on December 22, 1948. We hold that the Circuit Court was correct in holding each to be a qualified elector. Amendment No. 8 to our Constitution says: “ . . . persons who make satisfactory proof that they have attained the age of twenty-one years since the time of assessing taxes next preceding said election,3 and who possess the other necessary qualifications, shall be permitted to vote.” Under § 84-414, et seq., Ark. Stats., the “ . . . time for assessing taxes next preceding . . . ” January 20, 1949, expired on April 10, 1948. Each of these three young men became twenty-one years of age after April 10, 1948, so under the constitutional provision they were qualified to vote upon making-proof of such fact and possessing the other necessary qualifications. Such proof was made. The fact that Act 220 of 19474 abolished the requirement of assessing poll tax does not change the plain constitutional language, as above quoted. In short, any person being otherwise qualified and becoming twenty-one years of age after April 10, 1948, would be entitled to vote without poll tax until October 2, 1949.

B. School Patrons Who Had Transferred Out of the District. Wade Jennany and six other residents of the Atlanta District had transferred their children to other School Districts; and appellants claim that because of such transfers these seven persons were not qualified electors in the Atlanta School District. Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, is against the appellants’ contention. In that case we held that Howard County residents who had transferred their children to a Pike County School District could not vote in the Pike County School District election; and we said:

“Residence is, therefore, an essential prerequisite without which one cannot become qualified to vote, and this residence must be in the county in which he proposes to vote, and in the precinct, town or ward in which he proposes to vote. He can vote where he resides and not elsewhere.”

In the case at bar, Wade Jermany and each of the other six “transfers” resided in the Atlanta District and had duly paid poll tax; and each was a qualified elector in the Atlanta District: and the Circuit Court was correct in so holding.

C. Actual Residence of Certain Poll Tax Payers. Appellants claim that each of six named persons — being Dr. Horace Beene, Mrs. Horace Beene, Bruce Hendricks, Mrs. Bruce Hendricks, A. C. Shepherd and Felton Robinson — was not a qualified elector in the Atlanta District, even though each had a poll tax. Appellants sought to show that each such person was not an actual resident of the Atlanta District on January 20, 1949, the date of the hearing before the County Board of Education.

We have carefully checked the transcript as to each of these six named persons; and we find that no exception was preserved by appellants to the ruling of the Court at the time the Court held each of the six to be a qualified elector. The procedure in the case was as follows: (a) the Court heard the evidence as to each challenged person; and (b) immediately and finally ruled as to each such person. At such time appellants saved no exception to the Court’s ruling; and in the absence of a seasonable exception, there is nothing for us to review. See St. Louis, I. M. & So. Railway Co. v. Brown, 100 Ark. 107, 140 S. W. 279; Jenkins v. Quick, 105 Ark. 467, 151 S. W. 1021; Cotner v. Bangs, 137 Ark. 394, 209 S. W. 80; and Alldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571. In 3 Am. Jur. 51, the rule is stated: “As a general rule an exception to a ruling should be taken at the time the ruling is made”; and in 4 C. J. S. 760, the text says: “In order to be effective in saving error for consideration on appeal, exceptions taken to proceedings during trial must be timely.”

It was not until after the tabulation and announcement of the Court’s final decision, on the following day, that appellants sought — and then in a-general or “blanket” remark — to except to the Court’s ruling regarding any of these six persons. Such attempt came too late. Appellants had apparently acquiesced in each ruling made by the Court; and it was not until the final count disclosed a result adverse to them that appellants sought to ‘ back up ’ ’ and except to the rulings which had previously been unquestioned. Because of the failure to register timely exceptions, we hold that the question of the residence of each of these six challenged voters is not properly before us.

II.

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Bluebook (online)
231 S.W.2d 594, 217 Ark. 553, 1950 Ark. LEXIS 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beene-v-county-board-of-education-ark-1950.