{
  "id": 1407863,
  "name": "Vanhoose v. Yingling",
  "name_abbreviation": "Vanhoose v. Yingling",
  "decision_date": "1927-02-28",
  "docket_number": "",
  "first_page": "1009",
  "last_page": "1012",
  "citations": [
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      "cite": "172 Ark. 1009"
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    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name_long": "Arkansas",
    "name": "Ark."
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      "category": "reporters:state_regional",
      "reporter": "S.W.",
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    {
      "cite": "146 Ark. 255",
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    {
      "cite": "255 S. W. 289",
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    {
      "cite": "161 Ark. 42",
      "category": "reporters:state",
      "reporter": "Ark.",
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        1388550
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  "last_updated": "2023-07-14T19:50:04.452939+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Vanhoose v. Yingling."
    ],
    "opinions": [
      {
        "text": "Smith, J.\nThis is a proceeding by certain citizens and taxpayers of Woodruff County to mandamus the prosecuting attorney of the district of which Woodruff County is a part to institute proceedings to oust A. C. McGregor, the sheriff of that county, from office, upon the ground that the incumbent was ineligible to hold it.\nThe complaint recites the evidences submitted to the prosecuting attorney tending to show that McGregor was ineligible to hold the sheriff\u2019s office. These included a certificate of the tax assessor to the effect that McGregor had not -been assessed by him. Another instrument filed with the prosecuting attorney was a certificate showing a list of names of persons added to the taxbooks who had paid poll taxes. McGregor\u2019s name was included in the list, and attached to this list was the following certificate of the clerk of the county court: \u201cI, Bill Rives, clerk of the county and probate court and ex-officio recorder in and for the county and State aforesaid, do hereby certify that the above named parties shown to have been added to the personal taxbooks for the year 1923, after said tax-books had been delivered to the sheriff of \"Woodruff County for the collection of taxes for the year 1923.\u201d\nA demurrer to the complaint was sustained, and it was dismissed, and this appeal is prosecuted to review that .judgment.\nPayment of a poll tax is essential to constitute one an elector, unless he came of age after the time for assessing a poll tax. And one must be an elector to be eligible to hold a county office. Amendment No. 6 to the Constitution.\nIt is the duty of the prosecuting attorney to institute suit against one who usurps a county office. Section 10327, C. & M. Digest; State v. Tyson, 161 Ark. 42. 255 S. W. 289.\nFor the affirmance of the judgment of the court below it is insisted that the duty to institute an appropriate action against the usurper of a county office rests upon the prosecuting attorney, and that he has a discretion to determine when such an action shall be brought, and that this discretion will not be controlled by mandamus.\nIt is the law that, when a public officer has a discretion as to the circumstances under which he will exercise an official function, this discretion cannot be controlled by mandamus; but, if his duty is plain and certain, no discretion abides,' and, if he refuses to discharge that duty, he may be compelled by mandamus to act. Fraser v. Keck, 146 Ark. 255, 225 S. W. 325, and cases there cited.\nA general statement of the law as applied to the facts of this case is as follows: The prosecuting attorney has the discretion to determine for himself whether a county officer is usurping the office, and, if he concludes that there is no usurpation under the facts as he finds them to be, he is under no duty to act because some citizen, on the same state of the facts, has reached a different conclusion as to the eligibility of the officer. But, where an honest judgment, intelligently exercised, can lead to only one conclusion, and that conclusion is that the officer is not eligible to hold the office, then there is no discretion, because the officer whose duty it is to act can then only determine whether he will obey the law and perform his duty, or will ignore the law and leave his duty unperformed. No such discretion as this is vested in any officer, and, under such circumstances, the prosecuting attorney may be compelled to act.\nFrom the facts which we have stated it does not necessarily and certainly appear that McGregor was ineligible to hold the office. He may have paid his poll tax and thus qualified himself to hold office.'\nIn the case of Cain v. CarlLee, 168 Ark. 64, 269 S. W. 57, it was held that a person who had not been assessed by the assessor might, by complying yith \u00a7 3738, C. & M. Digest, have his name placed upon the taxhooks, and, by paying his poll tax, become a legal voter, but that this section must be complied with, this compliance being necessary, not only to protect the revenue, but to prevent fraud in elections.\nMcGregor may have complied with the requirements of this section, so far as the evidences submitted to the prosecuting attorney show to the contrary. These evidences show only that McGregor was not assessed by the assessor, and that his name was placed on the tax-books after the books had been delivered to the collector. This may all be true, but, if McGregor appeared before the county clerk, as he was authorized to do by \u00a7 3738, C. & M. Digest, and was assessed, the poll tax paid by him on this assessment was valid and qualified him as an elector. It affirmatively appears that McGregor paid his taxes, and it does not affirmatively appear that he was not assessed pursuant to \u00a7 3738 of the Digest, as that statute was construed in the case of Cain v. CarlLee, supra. It only appears that his name was placed on the taxhooks after the books had been delivered to the collector, and, as we have seen, this does not show that the poll tax was not properly paid.\nIt was therefore within the discretion of the prosecuting attorney to decline to institute a proceeding against McGregor for usurpation of the office of sheriff, and the demurrer was therefore properly sustained, and the judgment is affirmed.",
        "type": "majority",
        "author": "Smith, J."
      }
    ],
    "attorneys": [
      "Avery M. Blount, for appellant.",
      "J. F. Summers and Ross Mathis, for appellee."
    ],
    "corrections": "",
    "head_matter": "Vanhoose v. Yingling.\nOpinion delivered February 28, 1927.\n1. Officers \u2014 eligibility\u2014payment of poll tax. \u2014 'Payment of a poll tax is essential to constitute one an \u201celector\u201d so as to be eligible to hold office, under Const., art. 19, \u00a7 3, and Arndt. 6, unless he became of age after the time for assessing the poll tax.\n2. Mandamus \u2014 control of officer\u2019s discretion. \u2014 The prosecuting attorney may be compelled by mandamus to institute ouster proceedings against one who usurps a county office, under Crawford & Moses\u2019 Dig., \u00a7 10327, only where honest judgment, intelligently exercised, can lead to one conclusion only \u2014 that the officer 'is ineligible \u2014 in which case there is no discretion.\n3. Mandamus \u2014 ouster proceeding \u2014 discretion of prosecuting attorney. \u2014 The prosecuting attorney cannot be compelled by mandamus to institute ouster proceedings against one holding the sheriff\u2019s office, under Crawford & Moses\u2019 Dig., \u00a7 10327, for failure to pay his poll tax, though such sheriff was not assessed by the assessor, and his name was placed on the tax-books after they were delivered to the collector, since, in absence of proof to the contrary, he may have paid his poll tax under an assessment pursuant to \u00a7 3738, Id.\nAppeal from Woodruff Circuit Court, Central District; E. D. Robertson, Judge;\naffirmed.\nAvery M. Blount, for appellant.\nJ. F. Summers and Ross Mathis, for appellee."
  },
  "file_name": "1009-01",
  "first_page_order": 1027,
  "last_page_order": 1030
}