Reichenbach v. Serio

830 S.W.2d 847, 309 Ark. 274, 1992 Ark. LEXIS 281
CourtSupreme Court of Arkansas
DecidedMay 4, 1992
Docket92-193
StatusPublished
Cited by6 cases

This text of 830 S.W.2d 847 (Reichenbach v. Serio) 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
Reichenbach v. Serio, 830 S.W.2d 847, 309 Ark. 274, 1992 Ark. LEXIS 281 (Ark. 1992).

Opinion

Robert L. Brown, Justice.

This appeal arises out of a wet-dry election in the Roc Roe Township that resulted in a vote in favor of a dry township. The appellants brought a complaint against the Monroe County Election Commission alleging irregularities and failure to comply with statutory procedures. The circuit court dismissed the complaint, and this appeal ensued. The appellants raise two points for reversal: the Monroe County Judge failed to enter an order calling the election, thereby thwarting any appeal or election contest, and the full text of the proposed measure did not appear on the election petitions. Neither issue has merit, and we affirm.

The facts are not in dispute. On August 10, 1990, an Initiative Petition was filed by forty-nine purported voters requesting the right to vote for a dry township in the general election in Roc Roe Township in Monroe County. The County Judge failed to enter an order directing that an election be held in the township affected, but the matter was placed on the general election ballot in the following form:

An Initiated Petition to Establish Roc Roe Township, Monroe County, as a Dry Township, thereby making the Manufacture or Sale of Intoxicating Liquors Illegal in Roc Roe Township.
[ ] FOR the manufacture or sale of intoxicating liquors.
[ ] AGAINST the manufacture or sale of intoxicating liquors.

The drys prevailed in the general election on November 6, 1990, receiving 87 votes, while the wets received 67 votes. No contest of the election procedure was made prior to the election.

On November 19, 1990, the appellants filed a complaint against the Commission alleging several election irregularities and failure to follow correct election procedures. On November 20,1990, the County Judge certified the election results. Following a hearing and briefs by the parties, the circuit court dismissed the appellants’ complaint on the basis that the voters were given an opportunity to cast a free and intelligent vote, the statute does not render the particular acts complained of as fatal to an election, and the appellants did not demonstrate that the results would have been different except for the alleged irregularities.

The appellants first urge that the election process was impermissibly deficient because the county court failed to enter an order directing that an election be held. The lack of an order is undisputed. The Arkansas Code does require that an order directing that an election be held be entered:

(a) Upon application by written petition, signed by a number of legal voters in any county, city, town, district, or precinct to be affected equal to thirty-five percent (35 %) of the qualified voters, it shall be the duty of the judge of the county court in the county at the next regular term thereof, after receiving the petitions, to make an order on his order book directing an election to be held in the county, city, town, district, or precinct to be affected thereby, on some day named in the petition no earlier than sixty (60) days after the application is lodged with the judge of the court. . . .

Ark. Code Ann. § 3-8-302 (a) (1987). The appellants further contend that the absence of an order impeded their ability to appeal since they had nothing to appeal from. Under the applicable statute, there is a ten-day time frame from entry of the county judge’s order in which an appeal must be taken. Ark. Code Ann. § 3-8-205 (c) (1) (1987). Without an order, according to the appellants, the appellate process was never activated. Furthermore, they assert that they were left largely in the dark about election particulars.

It is somewhat unclear from the record before us what notice, if any, was given to the electorate in advance of the election. All we know from the record is that petitions were filed with forty-nine purported names from the affected township. We can only presume that the county clerk then certified the petitions and the issue was placed on the ballot by the Election Commission according to law without challenge from the appellants. See Ark. Code Ann. § 3-8-205(b) (1987). Though no order was entered by the county judge, the fact remains that an election was held, and the appellants did not demonstrate to the satisfaction of the circuit court how the election results would have been altered by virtue of an order from the County Judge. Nor does the abstract shed any light on this point. We have previously held in no uncertain terms that those who would challenge an election must show “that the outcome would have been different but for the irregularities.” Henard v. St. Francis Election Committee, 301 Ark. 459, 462, 784 S.W.2d 598, 600 (1990); see also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). That has not been shown in this case.

We further observe that there is nothing before us to suggest that the electorate in the township did not cast free and intelligent votes, which is a pivotal fact that we have noted in the past and one that the circuit court relied on in its decision. See Henard v. St. Francis Election Committee, supra; Swanberg v. Tart, supra. Though, again, it is somewhat unclear from the record exactly what information the electorate received before November 6, 1990, we do note that the votes cast in the wet-dry election were approximately the same as the township cast in other contested matters which were on the ballot for the general election. Moreover, the wet-dry issue as described on the ballot was not one of overriding complexity. On the contrary, it was readily understandable from the ballot’s description.

More than a hundred years ago, we stated that “the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and spoken.” Wheat v. Smith, 50 Ark. 266, 278, 7 S.W. 161, 165 (1887). In that early case we addgd: “Elections are not to be lightly set aside, though the law has not been strictly complied with. ... It is of the utmost importance that the public should have confidence in the administration of the election laws, and to know that the will of the majority, when fairly expressed, will be respected.” 50 Ark. at 280, 7 S.W. at 166.

More recently, we quoted with approval from Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), that “the failure to publish notice of an election is immaterial if the election is actually held and the electors have not been deprived of the opportunity to express themselves.” Henard v. St. Francis Election Committee, 301 Ark. at 461, 784 S.W.2d at 600. No such deprivation to the voters is shown in the case before us. Indeed, it appears from the record that the Roc Roe electorate cast as many or more votes on the wet/dry issue as on any other.

Finally, after an election has been conducted, we have held that statutory requirements are merely directory and not mandatory:

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Bluebook (online)
830 S.W.2d 847, 309 Ark. 274, 1992 Ark. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reichenbach-v-serio-ark-1992.