{ "id": 1369535, "name": "Cain v. CarlLee", "name_abbreviation": "Cain v. CarlLee", "decision_date": "1926-05-17", "docket_number": "", "first_page": "155", "last_page": "161", "citations": [ { "type": "official", "cite": "171 Ark. 155" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "60 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903676 ], "opinion_index": 0, "case_paths": [ "/ark/60/0194-01" ] }, { "cite": "95 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543519 ], "opinion_index": 0, "case_paths": [ "/ark/95/0081-01" ] }, { "cite": "109 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1341210 ], "opinion_index": 0, "case_paths": [ "/ark/109/0250-01" ] }, { "cite": "56 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326085 ], "opinion_index": 0, "case_paths": [ "/ark/56/0110-01" ] }, { "cite": "113 Ark. 24", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537531 ], "opinion_index": 0, "case_paths": [ "/ark/113/0024-01" ] }, { "cite": "169 Ark. 887", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1374101 ], "opinion_index": 0, "case_paths": [ "/ark/169/0887-01" ] }, { "cite": "168 Ark. 64", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719068 ], "opinion_index": 0, "case_paths": [ "/ark/168/0064-01" ] }, { "cite": "70 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509535 ], "opinion_index": 1, "case_paths": [ "/ark/70/0240-01" ] }, { "cite": "60 Ark. 194", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1903676 ], "opinion_index": 1, "case_paths": [ "/ark/60/0194-01" ] }, { "cite": "95 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1543519 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/95/0081-01" ] }, { "cite": "56 Ark. 110", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1326085 ], "opinion_index": 1, "case_paths": [ "/ark/56/0110-01" ] }, { "cite": "113 Ark. 24", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1537531 ], "opinion_index": 1, "case_paths": [ "/ark/113/0024-01" ] } ], "analysis": { "cardinality": 557, "char_count": 13908, "ocr_confidence": 0.5, "pagerank": { "raw": 3.3084624097580593e-07, "percentile": 0.8723141773902648 }, "sha256": "e8f4d91cdc6790ffc3c1b7550fd979e0f0655099bf2007055da882f400ea5eb9", "simhash": "1:3e650cd753630cde", "word_count": 2423 }, "last_updated": "2023-07-14T23:00:35.231048+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Cain v. CarlLee." ], "opinions": [ { "text": "\u25a0Smith, J.\nThere is pending in this court the third appeal in a suit involving the nomination of -the Democratic Party for the office of county judge of Woodruff. County in the primary election held in that county in the year 1924 against the appellee CarlLee, who' was declared the nominee, and was elected as such at the ensuing general election held after the primary election. In the first trial of the contest CarlLee was declared the nominee, -but, upon the appeal to this court by appellant Cain, the contestant, that judgment was reversed, and the cause remanded for a.new trial. Cain v. CarlLee, 168 Ark. 64. The cause was remanded, and upon the second trial in the circuit court CarlLee was again declared the nominee, and that judgment was reversed upon the second appeal to this court (Cain v. CarlLee, 169 Ark. 887), and a third trial was had' in the circuit court, when CarlLee was again declared the nominee, and the appeal from that judgment is now pending in this court.\n. The appellee CarlLee has filed a motion to abate the cause, for the reason that, since this third appeal was lodged in this court, he has tendered his resignation as county judge to the Governor and the same has been accepted, and he insists that the contest has therefore become a moot question.\nAppellant resists this motion, and insists that the question involved in the pending appeal should be decided, for the reasons (a), that he is the nominee and is entitled to have that fact judicially determined, and (b), in the attempt to enforce this right a large amount of costs have been incurred which, under the judgment from which this appeal was prosecuted, he will be required to pay, inasmuch as that judgment declared appellee CarlLee the nominee and assessed the cost against appellant. Certain costs of the former appeal were involved in a per curiam opinion handed down by this court on April 5, 1926, in which we overruled a motion of appellee to retax costs.\nThe first question which arises is whether this court will consider an appeal if the subject-matter has become a moot question. The rule in such cases is generally that \u201cwhere there is nothing to be determined on an appeal to the Supreme Court but the question of liability for the costs of the litigation, the appeal will be dismissed.\u201d Pearson v. Quinn, 113 Ark. 24. In that case we quoted and followed the opinion of Chief Justice Cockrill in the case of Wilson v. Thompson, 56 Ark. 110. But the Chief Justice recognized that the rule stated was not without its exceptions. That case involved the construction of the local option three-mile law then in force, and, after stating that the appeal had become' fruitless, and that the court would be justified, under the rule stated, in dismissing the case without going into the merits of it, the court proceeded to determine the questions at issue, for the reason that \u201cthe case was of practical importance\u201d to the public, and having for this reason gone into the question, and having found that the judgment rendered was erroneous, the judgment appealed from was reversed, and appellants were awarded costs.\nThat principle is applicable here. The questions' involved on this'appeal were and are of practical importanee to the public. Questions are involved which, relate to the manner of holding primary elections and of the qualifications which must be possessed to participate therein. The law of this subject cannot be said to be so well settled or so certain that litigation was unnecessary to determine it, for the first decision of this court was rendered by a divided court, and we have, since that decision, r\u00e9versed the .judgment of the circuit court \u00f3n the second appeal.\nThe two opinions on the former appeals show the practical importance of the questions involved, for it is a matter of common knowledge that the nomination for public office by the majority party in this State is practically equivalent to election, and this is true of all offices where primary elections are held, except in a few of the counties of the State, and there are questions raised in this contest which involve construction of the statutes under which such elections are held.\nWe do not think, however, that this has become a moot case, and we are also of the opinion that the resignation of appellee does not abate the' suit. The decision of that question involves a further consideration of the primary election law under which the election was held which Cain has been contesting.\n' The history of this act is so well known that courts' cannot be ignorant of it. This court had held, in the case of Walls v. Brundidge, 109 Ark. 250, that the courts were without jurisdiction to entertain a contest for the nomination of a party as a candidate for public office. Thereafter, under the Initiative and Referendum Amendment to our Constitution, there was initiated and enacted by the people, at the election in 1916, an act which became and is known as initiative act No. 1, and which appears as \u00a7 3757 et seq., C. & M. Digest, Acts 1917, vol. 2, p. 2287.\nThis is a very comprehensive act, and provides that the political parties of the State may hold legalized primary elections to nominate candidates for office, and provides in detail how such elections shall be held and how they may be contested.\nBy the first paragraph of \u00a7 12 of this act it is provided that \u201ca right of action is hereby conferred on any candidate to contest the certification of nomination or the certification of vote as made by the county central committee\u201d of the party holding the election.\nA procedure is provided in the act whereby and in accordance with which a contest may be conducted, and the courts are required to hear and dispose of these contests expeditiously, because of the public interest involved, but, to give the courts jurisdiction of a contest, the complaint of a contesting candidate must be supported by the affidavit of at least ten reputable citizens.\nBy \u00a7 15 of the act it is provided that, if the contest is not determined until after the general election, at which the declared nominee has run as the candidate of his party for the office itself and has been elected, and it is thereafter determined that the declared nominee was not legally entitled to the nomination, \u201csuch judgment shall operate as an ouster from office, and the vacancy in it shall be filled as provided by law for filling vacancies in such office in case of death or resignation.\u201d\nAppellant Cain instituted a contest under this act, and his opponent for the nomination, CarlLee, has resisted that claim, and this contest has resulted in the accumulation of a large amount of costs, which appellant Cain will be required to pay if the judgment appealed from is affirmed on the final submission of the cause, or if this appeal must abate because of the resignation of CarlLee.\nThe first paragraph of \u00a7 12 of the initiative act No. 1 conferred upon appellant Cain \u201ca right of action\u201d to contest this nomination. In order that frivolous contests might not be instituted under this section, the requirement was imposed that ten reputable citizens make affidavit supporting the contest, and this was done, and when it had been done a cause of action- \u2014 a suit at law\u2014 was before the court for decision. The law gave this cause of action to Cain after he had met the precedent conditions, and nothing which CarlLee could thereafter do would operate to deprive Cain of this right. He was entitled to prosecute this cause of action so long as Carl-Lee resisted, or until there had been a final decision determining the case against him. CarlLee elected to resist this cause of action, as he had the right to do, and in so doing large costs have accumulated.\nSince the adoption of our Civil Code, remedies in civil cases have been divided into two classes. First, actions; second, special proceedings. Section 1027, C. & M. Digest.\nSection 1028, C. & M. Digest, which was also taken from the Civil Code, defines a civil action as \u201can ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong. It may also be brought for the recovery of a penalty or forfeiture.\u201d\nWith this definition of an \u201caction\u201d incorporated in the statutes of the State, the initiative act made a contest for a nomination for office a cause of action.' This it would not be if the voluntary act of another, and an adversary party, could deprive him of the right.\nIt is unnecessary for us to consider what value this right may now possess. It suffices for us to decide that there was a cause of action, the prosecution of which cannot be defeated by the act of another party, and this is especially true when the right has been resisted until costs have accumulated, the payment of which by the judgment appealed from has been imposed upon appellant.\nWe think there is nothing in the case of Buchanan v. Parham, 95 Ark. 81, which entitled appellee to abate this suit. In that case the court quoted from the opinion of Mr. Justice Biddick in the case of Wilson v. Fussell, 60 Ark. 194, which was a special proceeding wherein certain taxpayers questioned the sufficiency of a collector\u2019s bond, the language quoted being as follows: \u20181 The right to recover costs did not exist at common law. It rests upon statute only, and it is to the statute we must look for the authority to recover costs in any given case. * * * There is a general provision in our statute that a plaintiff or defendant recovering judgment at law is entitled to his costs, but this is not an action at law or in equity. \u2019 \u2019\nWe think the language there quoted supports the view here taken., for there is an express recognition in the language quoted of the right to recover costs in any case where the plaintiff or defendant recovers a judgment at law. This is what appellant Cain is seeking to do, that is, to have a judgment at law pronounced upon his cause of action, and, if he should finally prevail, he will be entitled to have it adjudicated that he was the nominee of his party for the office for which he was a candidate, and he will also be entitled, not only to be relieved of the existing judgment against him, but to have' judgment for his own costs. We so interpret the purpose and meaning of the initiative act, and the motion to abate will therefore be overruled.", "type": "majority", "author": "\u25a0Smith, J." }, { "text": "DISSENTING OPINION.\nMcCulloch:, C. J.\nA vacancy in the office has occurred by the resignation of appellee, and, as a vacancy would be the only result in the event this contest proceeding should go to final judgment in favor of appellant (Crawford & Moses\u2019 Digest,- \u00a7 3776), the case has become moot, and, in my view, should be' abated. This is so for two reasons: In the first place, \u201cwhere there is nothing to be determined on an appeal to the Supreme Court but tbe question of liability for tbe cost of litigation, tbe appeal will be dismissed.\u201d Pearson v. Quinn, 113 Ark. 24. Tbe majority rely on the decision of this court in Wilson v. Thompson, 56 Ark. 110, holding that the fact that a cause is one of \u201cpractical importance\u201d makes it an exception to the general rule that litigation will not be continued after it has become moot merely for the purpose of adjudicating the question of liability for costs. The reasoning in that case, as well as the present one, is not convincing. In the next place, there is no liability for costs in an election of this kind, for the reason that the statute contains no authority for awarding judgment for costs. It is well settled that the right to recover costs did not exist at common law and rests on statutes alone (Wilson v. Fussell, 60 Ark. 194), and, following this theory, we held in Buchanan v. Parham, 95 Ark. 81, that costs could not be awarded in an election contest in the absence of a statute authorizing it.\nThe majority hold now that the right to recover costs falls within the general statute allowing recovery for costs in all civil actions; but this court has held that election contests are not \u201ccivil actions\u201d, within the -meaning of the statute. Davis v. Moore, 70 Ark. 240; Buchanan v. Parham, supra.\nThe fact that the primary election statute has created \u201ca right of action\u201d to contest an election does not bring it within the Code provision referred to in regard to costs.\nMy conclusion is that the action should be abated without recovery of costs \u2014 each party left to pay his own costs.", "type": "dissent", "author": "McCulloch:, C. J." } ], "attorneys": [ "Roy D. Campbell, for, appellant.", "J. F. Summers and Ross Mathis, for appellee." ], "corrections": "", "head_matter": "Cain v. CarlLee.\nOpinion delivered May 17, 1926.\n1. \u2022. Appeal and error \u2014 dismissal of moot case. \u2014 Generally, where: there is nothing to be determined upon an,appeal to the Supreme Court [but the question of liability for the costs of the litigation, the appeal will be dismissed; but, where the case is of practical \u25a0importance to the public, the court may proceed to determine the questions at issue.\n2. Elections \u2014 contest of primary nomination \u2014 abatement.\u2014 Under the initiated act No. 1, \u00a7 12 (Crawford & Moses\u2019 Dig., \u00a7 3772), conferring on any defeated candidate \u201ca right of action\u201d to contest the certification of a nomination, the right of a contestant to have a final determination' of the contest does not become moot nor the action abate upon the contestee resigning from the ofiice to which he had been elected after receiving the certificate of nomination.\n\u25a0 3. Elections \u2014 moot question \u2014 abatement of . action. \u2014 Where - a contest under the primary law (Crawford & Moses\u2019 Dig., \u00a7 3757 et seq.) was resisted by contestee until a large amount of costs had accumulated, which contestant would be required to pay if the judgment appealed from should be affirmed, the defendant cannot, by resigning from the office, secure an abatement of the action.\n\u2022 . Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;\nmotion to abate overruled.\nRoy D. Campbell, for, appellant.\nJ. F. Summers and Ross Mathis, for appellee." }, "file_name": "0155-01", "first_page_order": 171, "last_page_order": 177 }