Townes v. McCollum

256 S.W.2d 716, 221 Ark. 920

• Court: Supreme Court of Arkansas
• Decided: April 9, 1963
• Docket: 5-138
• Status: Published

Opinions

George Rose Smith, J.

This is a suit by the appellants, three taxpayers, to enjoin the Board of Election Commissioners of St. Francis County from holding- an election to determine whether horse racing is to be permitted in the county. The statute provides that such an election may be called upon the petition of 15% of the qualified electors in the county. Ark. Stats. 1947, § 84-2721. Here the complaint attacks the sufficiency of the petition, upon the ground that the names of 159 specified persons were placed on the petition by someone other than the persons themselves. It is further alleged that unless restrained the Board will unlawfully call the election and that the expense thereof will be paid with public funds, constituting an illegal exaction within Article 16, § 13, of the constitution. In the court below the St. Francis Yalley Turf Association, Inc., intervened and demurred to the complaint. The chancellor sustained the demurrer and dismissed the suit.

We think the demurrer should have been overruled, for the complaint states a cause of action. The statute requires that fifteen per cent of the voters petition for an election of this kind. The demurrer admits the insufficiency of the petition in this case. This being true, the election has not been properly called and should not be conducted at public expense.

It is argued, however, that the plaintiffs’ remedy is against the county clerk, under the Initiative and Referendum Amendment and its enabling legislation. Amendment No. 7; Ark. Stats., § 2-310. There is nothing in this contention. This proposed election is to be held not under the power of initiative or referendum but under the authority of the statute regulating horse racing, Act 46 of 1935. With respect to similar statutory elections, such as local option elections under the liquor law, the governing procedure is that provided by the statute rather than that contained in Amendment, No. 7. Johnston v. Bramlett, 193 Ark. 71, 97 S. W. 2d 631. The horse racing statute does not prescribe the method for testing the validity of the petition and thus leaves the contestants free to select any appropriate procedure.

It is also suggested that the plaintiffs had an adequate remedy at law by asking the circuit court for a writ of certiorari to review the clerk’s or the board’s determination that the petition is sufficient. The adequacy of the legal remedy is immaterial, however, when a taxpayer seeks protection against an illegal exaction; for the constitution itself confers the right to injunctive relief. For example a statute which attempts to abolish the remedy by injunction and to substitute a remedy at law is unconstitutional. McCarroll v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977; see also Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875.

Beversed, with directions that the demurrer be overruled. .The mandate will issue immediately.