Elsijane T. Roy, Justice.
In 1975 the Deer School District of Newton County, Arkansas, held a regular election to choose a school board member. Appellant Dwain Martin and appellee Charles Hefley were candidates. The Newton County Election Commissioners certified appellee Hefley as the winner with a 243 vote total for him and 242 votes for Martin. Appellant Martin filed suit challenging the validity of certain votes for Hefley and questioning Hefley’s right to hold office. Appellee Hefley cross-complained contesting certain votes received by Martin.
At trial below the court ruled invalid two votes fQr appellee and one vote for appellant, leaving 241 legal votes for each party, and declared, pursuant to Arkansas statutes, a special election should be held to resolve the tie. From that decision comes this appeal. '
Appellant contends the court erred in counting the vote of Sandra Hefley Carter. Mrs. Carter’s vote was cast for appellee, and appellant argues that Mrs. Carter was not a resident of the Deer School District at the time of the election because she had married two months before the election. Appellant bases this argument on his contention that Mrs. Carter, upon marrying, immediately assumed the domicile of her husband who was not a resident of the Deer School District area.
Mrs. Carter’s testimony was that prior to marriage she had lived with her parents in the Deer School District and it was the only place she had ever registered to vote. She further testified that she and her husband had not established a home but that both lived with his parents part of the time and with her parents part of the time. Thus the rule that the wife assumes the domicile of her husband upon marriage finds no applicability in this instance. Bruce v. Bruce, 176 Ark. 442, 3 S.W. 2d 6 (1928). The action of the Carters indicates the absence of an intent to elect a permanent domicile, and intent to remain in a particular place coupled with actual residence has often been held to be the determinant of domicile. Ellis v. Southeast Construction Co., 260 F. 2d 280 (8th Cir. 1958); Troillet v. Troillet, 227 Ark. 624, 300 S.W. 2d 273 (1957); Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W. 2d 60 (1970). Consequently we find the trial court’s action correct on this issue.
Appellant Martin also submits as error the action of the court disallowing the vote of William Braden. Braden’s vote was cast for appellant and was deducted by the court from his total based on its conclusion that the statutory provision regulating absentee voting had not been strictly complied with. Earl Braden, the father of William Braden, testified that he secured his son’s ballot in order to forward it to him since young Braden was attending school at Arkansas Tech at the time the election was held. Earl Braden stated that he did not sign for the absentee ballot because the officials advised none were available. Two regular ballots (one for his daughter-in-law1) were given him, and he was told that by the clerk’s marking “absentee” across the top they would be counted as legitimate ballots.
Ark. Stat. Ann. §§ 3-904 and 3-905 (Supp. 1973) are quite specific in delineating the procedure which must be followed in qualifying to register an absentee vote. § 3-904 begins:
Applications for absentee ballots may be made in one of the following three (3) ways, in no other manner, and then only on the form set out in this Act ] §§ 3-101 — 3-1306], (emphasis supplied)
The statute then provides that applications can be made in person, by mail or by delivery of the absentee form to the County Clerk by the elector, husband, wife, son, daughter, sister, brother, father or mother of the applicant. § 3-905 requires that applications for absentee ballots “. . . shall be made only on the form furnished by the County Clerk . . .” (emphasis supplied), and incorporates the format of the form to be so furnished. Amendment 51 of the Arkansas Constitution provides in § 13(d) that:
. . . [T]he Permanent Registrar shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration before mailing or passing out an absentee ballot. * * *
This court cannot view lightly specific constitutional as well as statutory requirements. Since no application form was provided no signature comparison could have been made by the permanent registrar. Thus there was no compliance with Constitutional Amendment 51, § 13(d).
In Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W. 2d 607 (1966), we stated:
Suits in election contests frequently show irregularities, and Amendment 51, adopted comparatively recently by the people, contains provisions aimed at correcting this situation. It is necessary that these provisions of the amendment, and the statutes referred to, relating to the duties of voters in applying for, and casting, absentee ballots, be strictly complied with.
Therefore, we find the trial court was not in error in holding William Braden’s vote invalid.
Appellant’s final contention is that the court erred in ruling that it was without jurisdiction to determine whether appellee was qualified to hold public office. Appellant bases this contention on the fact that appellee was convicted of burglary and given a two year suspended sentence, a crime he argues falls within the ambit of Article 5, § 9 of the Arkansas Constitution. § 9 states:
No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.
The court found that the issue of whether Charles Hefley was legally competent to hold office should be determined quo warranto and could only be raised by the attorney general, prosecuting attorney or one entitled to the office. The court ruled that appellant was not entitled to the office and was therefore precluded from bringing an action to determine appellee’s eligibility.
Ark. Stat. Ann. § 34-2203 (Repl. 1962) outlines the method by which usurpation of office or franchise may be redressed. Relevant to appellant’s position is language therein requiring that proceedings instituted against a usurper be initiated by “the party entitled to the office or franchise.” Appellant can lay no claim to having received more votes than appellee, for even after the revised count conducted by the court each party received an equal number of votes. Therefore, appellant does not qualify as a person authorized to bring suit under the statute.
Furthermore, appellee received a suspended sentence. This type of sentence is insufficient to obviate his right to seek and hold the office. State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935); May v. Edwards, 258 Ark. 871, 529 S.W. 2d 647 (1975). Consequently the trial court’s holding was correct on this point.
Appellee, by way of cross appeal, alleges error below in the court’s declaring Ray Proctor’s vote invalid because of non-residency. Proctor testifed that, at the time of the election, he was staying with his family at Mossville, Arkansas, which is in the Deer School District.
Free access — add to your briefcase to read the full text and ask questions with AI
Elsijane T. Roy, Justice.
In 1975 the Deer School District of Newton County, Arkansas, held a regular election to choose a school board member. Appellant Dwain Martin and appellee Charles Hefley were candidates. The Newton County Election Commissioners certified appellee Hefley as the winner with a 243 vote total for him and 242 votes for Martin. Appellant Martin filed suit challenging the validity of certain votes for Hefley and questioning Hefley’s right to hold office. Appellee Hefley cross-complained contesting certain votes received by Martin.
At trial below the court ruled invalid two votes fQr appellee and one vote for appellant, leaving 241 legal votes for each party, and declared, pursuant to Arkansas statutes, a special election should be held to resolve the tie. From that decision comes this appeal. '
Appellant contends the court erred in counting the vote of Sandra Hefley Carter. Mrs. Carter’s vote was cast for appellee, and appellant argues that Mrs. Carter was not a resident of the Deer School District at the time of the election because she had married two months before the election. Appellant bases this argument on his contention that Mrs. Carter, upon marrying, immediately assumed the domicile of her husband who was not a resident of the Deer School District area.
Mrs. Carter’s testimony was that prior to marriage she had lived with her parents in the Deer School District and it was the only place she had ever registered to vote. She further testified that she and her husband had not established a home but that both lived with his parents part of the time and with her parents part of the time. Thus the rule that the wife assumes the domicile of her husband upon marriage finds no applicability in this instance. Bruce v. Bruce, 176 Ark. 442, 3 S.W. 2d 6 (1928). The action of the Carters indicates the absence of an intent to elect a permanent domicile, and intent to remain in a particular place coupled with actual residence has often been held to be the determinant of domicile. Ellis v. Southeast Construction Co., 260 F. 2d 280 (8th Cir. 1958); Troillet v. Troillet, 227 Ark. 624, 300 S.W. 2d 273 (1957); Phillips v. Sherrod Estate, 248 Ark. 605, 453 S.W. 2d 60 (1970). Consequently we find the trial court’s action correct on this issue.
Appellant Martin also submits as error the action of the court disallowing the vote of William Braden. Braden’s vote was cast for appellant and was deducted by the court from his total based on its conclusion that the statutory provision regulating absentee voting had not been strictly complied with. Earl Braden, the father of William Braden, testified that he secured his son’s ballot in order to forward it to him since young Braden was attending school at Arkansas Tech at the time the election was held. Earl Braden stated that he did not sign for the absentee ballot because the officials advised none were available. Two regular ballots (one for his daughter-in-law1) were given him, and he was told that by the clerk’s marking “absentee” across the top they would be counted as legitimate ballots.
Ark. Stat. Ann. §§ 3-904 and 3-905 (Supp. 1973) are quite specific in delineating the procedure which must be followed in qualifying to register an absentee vote. § 3-904 begins:
Applications for absentee ballots may be made in one of the following three (3) ways, in no other manner, and then only on the form set out in this Act ] §§ 3-101 — 3-1306], (emphasis supplied)
The statute then provides that applications can be made in person, by mail or by delivery of the absentee form to the County Clerk by the elector, husband, wife, son, daughter, sister, brother, father or mother of the applicant. § 3-905 requires that applications for absentee ballots “. . . shall be made only on the form furnished by the County Clerk . . .” (emphasis supplied), and incorporates the format of the form to be so furnished. Amendment 51 of the Arkansas Constitution provides in § 13(d) that:
. . . [T]he Permanent Registrar shall determine that the signature on the application for absentee ballot is identical with the signature appearing on the voter’s Affidavit of Registration before mailing or passing out an absentee ballot. * * *
This court cannot view lightly specific constitutional as well as statutory requirements. Since no application form was provided no signature comparison could have been made by the permanent registrar. Thus there was no compliance with Constitutional Amendment 51, § 13(d).
In Bingamin v. City of Eureka Springs, 241 Ark. 477, 408 S.W. 2d 607 (1966), we stated:
Suits in election contests frequently show irregularities, and Amendment 51, adopted comparatively recently by the people, contains provisions aimed at correcting this situation. It is necessary that these provisions of the amendment, and the statutes referred to, relating to the duties of voters in applying for, and casting, absentee ballots, be strictly complied with.
Therefore, we find the trial court was not in error in holding William Braden’s vote invalid.
Appellant’s final contention is that the court erred in ruling that it was without jurisdiction to determine whether appellee was qualified to hold public office. Appellant bases this contention on the fact that appellee was convicted of burglary and given a two year suspended sentence, a crime he argues falls within the ambit of Article 5, § 9 of the Arkansas Constitution. § 9 states:
No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State.
The court found that the issue of whether Charles Hefley was legally competent to hold office should be determined quo warranto and could only be raised by the attorney general, prosecuting attorney or one entitled to the office. The court ruled that appellant was not entitled to the office and was therefore precluded from bringing an action to determine appellee’s eligibility.
Ark. Stat. Ann. § 34-2203 (Repl. 1962) outlines the method by which usurpation of office or franchise may be redressed. Relevant to appellant’s position is language therein requiring that proceedings instituted against a usurper be initiated by “the party entitled to the office or franchise.” Appellant can lay no claim to having received more votes than appellee, for even after the revised count conducted by the court each party received an equal number of votes. Therefore, appellant does not qualify as a person authorized to bring suit under the statute.
Furthermore, appellee received a suspended sentence. This type of sentence is insufficient to obviate his right to seek and hold the office. State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935); May v. Edwards, 258 Ark. 871, 529 S.W. 2d 647 (1975). Consequently the trial court’s holding was correct on this point.
Appellee, by way of cross appeal, alleges error below in the court’s declaring Ray Proctor’s vote invalid because of non-residency. Proctor testifed that, at the time of the election, he was staying with his family at Mossville, Arkansas, which is in the Deer School District. He stated he was living there because he had been “laid-off” from his employment in Fayetteville, which is located in Washington County. He previously had been living in Elkins, also in Washington County, for two or three years prior to being “laid-off”. He owned a mobile home and paid taxes there. At the time of trial he had resumed employment in Washington County. From the evidence we cannot say that the trial court erred in declaring his vote invalid for failure to meet residency requirements. A fact question was presented as to his residence for voting purposes, and the court could justifiably conclude that he had relinquished voter status in the Deer School District area.
The validity of the vote of Ertle Hicks was questioned also as to residency. Hicks’ testimony discloses that he owns a home in Deer, receives his mail there and alternates two or three times a week staying in Jasper with his wife and in Deer on his farm. Here again is a factual determination for the court, and we find no error in its conclusion. Charisse v. Eldred, 252 Ark. 101, 477 S.W. 2d 480 (1972).
Since the record discloses substantial evidence to support the judgment of the trial court, it is affirmed.
Harris, C.J., and Fogleman, J., dissent.