#### Samuels v. Robins.

4-7866

192 S. W. 2d 109

Opinion delivered January 21, 1946.

Rehearing denied February 18, 1946.

*615 G. P. Casey, John P. Vesey and Graves £ Graves, for appellant.

Harry C. Robinson, Weisenberger £ Pilkinton and John IF. Atkinson, for appellee.

Holt, J.

The material facts in this case appear not to he in dispute. September 29, 1945, Monroe Samuels and 1601 other persons, who claimed to he qualified electors of Hempstead county and to be more than 15% of the qualified electors as shown on the poll tax records of said county, filed petition in the county court of said county, praying that an election be called in Hempstead county to determine whether license should be granted for the manufacture or sale, or the bartering, loaning or giving away of intoxicating liquors within said county, all alleged to be in accordance with the provisions of Initiated Act No. 1, adopted November 3, 1942 (Acts 1943, p. 998), and effective January 1, 1943.

October 8,1945, there was a hearing before the county court to determine the sufficiency of the petition, supra, and the court found that more than 15% of the qualified electors of said county, as shown on the poll tax records, had signed the petition, that it was sufficient, and called an election to be held on November 6,1945, in accordance with the prayer of the petition and the act, supra.

Appellees appeared and opposed the petition, excepting to the findings and judgment of the county court, and in apt time and by proper procedure appealed to the Hempstead circuit court.

At the beginning of the trial in the circuit court, it was stipulated that there were 4,980 poll tax payers in the county for the year 1943 as shown on the list of poll tax *616payers filed in the county clerk’s office, that there were 1,602 names signed on the petition, and that there were 2,500 persons over the age of 21 years from Hempstead county in the armed forces of the United States, on the date the petition was filed.

Appellants contended below, and now contend on this appeal, that in determining the sufficiency of their petition, the 2,500 persons in the armed forces should not be counted and that to do so would be contrary to the provisions of the act, supra, which required that their petition be signed by 15% of the qualified electors of said county “as shown on the poll tax records of the county,” which would be 15% of 4,980, or 747. Appellees, on the other hand/contended below, and argued here, that those in the armed forces, supra, under the provisions of said act, must be added to the poll tax payers’ list of 4980, supra, making a total of 7,480, 15% of which would be 1,122.

The circuit court found that under the act, supra, the number of qualified electors signing the petition in question must be a number equalling 15% of 7,480,- or 1,122, which is 15% of the poll tax payers of the county for the year 1943, according to the official list in the county clerk’s office, and in addition 15% of all persons from Hempstead county over the age of 21 years' who were in the armed forces of the United States on September 29, 1945, when the petition was filed. In other words, (quoting from the judgment) “That before the petitioners (appellants) can prevail and before the election can be called under the petition, the number of qualified electors signing the petition must be not less than 15% of the number on the poll tax list and the number in the armed services of the United States from Hempstead county, which would be 15% of 7,480, which would be 1,122, and that only 1,056 qualified electors having signed the petition, the petition is insufficient.”

The judgment and order of the county court was set aside and appellants’ petition dismissed. This appeal followed.

*617The primary question presented, and which we think is decisive of this case, is: What was the criterion fixed in Act No. 1, supra, to determine the number of qualified electors that must sign the petition in question to authorize the calling of the election? Is the official poll tax list in the clerk’s office the criterion or is the criterion the number “as shown on the poll tax records of the county” added to the number of persons over the age of 21 years from Hempstead county who were in the armed forces of the United States on the date the petition was filed, September 29,1945?

Section 1 of said act provides: “When fifteen per cent (15%) of the qualified electors, as shown on the poll tax records of the county shall petition the County Court of any county within this State, praying that an election be held in a designated county, township, municipality, ward or precinct, to determine whether or not license shall be granted for the manufacture or sale, or the bartering, loaning or giving away of intoxicating liquor within the designated territory, the County Court, within ten (10) days thereafter, (the County Court shall be open at all times for the purposes of this Act) shall give a public hearing to determine the sufficiency of the petition; and if it be found that fifteen per cent (15%) of the persons who have paid their poll taxes for the year, making them qualified voters at the time the petition is filed, (or qualified electors in case the qualifications for electors should be changed by Constitutional Amendment) have signed said petition, said County Court shall order a special election to be held in such county, township, municipality, ward or precinct, to be affected thereby, for the sole and only purpose of voting on the question presented by the petition.”

Amendment 36 to the Constitution of Arkansas, adopted November 7, 1944, provides: “Any citizen of Arkansas, while serving in the armed forces of the United States, may vote in any election, without having paid a poll tax, if otherwise qualified to vote in any such election. ’ ’

*618It will be observed tbat tbe first sentence of § 1 of tbe act above contains two clauses separated by a semicolon, tbe first clause in plain and certain language fixes tbe criterion in determining tbe number of qualified electors tbat must sign tbe petition in order to call an election to be 15% “of tbe qualified electors as shown on tbe poll tax records of tbe county.” Tbat number bere is conceded to be 4,980'. Does the'language in tbe second clause change this criterion? We do not think it does.

One of tbe requirements for voting, as applied to all citizens, at tbe time Act No. 1, supra, became tbe law, was tbe payment of a poll tax, and tbe official poll tax list was fixed as tbe criterion by tbe law making body. Amendment 36, supra, relieved all citizens while serving in tbe armed services of tbe United States of tbe requirement of paying a poll tax in order to vote in any election. This amendment in no way affects tbe provisions of said act as to tbe number of signers on tbe petition necessary to call tbe election. Tbe poll tax requirement is still applicable to all other citizens, and we bold that tbe official poll tax list is tbe criterion as fixed in said act, to determine tbe qualified electors who must sign tbe petition in question. This act does not deprive those in tbe armed forces of voting in tbe local option election bere. Such was tbe effect of our bolding in tbe recent case of Shay v. Welch, ante, p. 519, 191 S. W. 2d 253. We there held: (Headnote 1) “Electors who may be absent from borne and in tbe armed services of tbe United States are not deprived from voting in a local option election by Initiated Act No. 1 of 1942; it is tbe war tbat rendered their absence from borne necessary and not tbe Initiated Act.”

Tbe Legislature, or tbe people, by right of initiative as bere, could make tbe official poll tax list tbe criterion for determining tbe number of qualified electors who must sign tbe petition for calling tbe election.

We have heretofore upheld this principle of law in election contests. In Vance, et al., v. Austell, et al., Futrell, et al., v. Austell, et al., 45 Ark. 400, this court said: “Section 1165 of Mansfield’s Digest, which provides tbat, for tbe purpose of ascertaining tbe number of quali*619fied voters of any county, and the lawful majority necessary to authorize the change or removal of any county seat, the county court shall be governed by the number of persons liable to pay a poll tax as returned upon the assessor’s books, is not in conflict with the Constitution of the State, and all doubts as to the power of the Legislature to establish the rule prescribed in said section are to be resolved in favor of the statute. . . . And it has prescribed the minimum vote necessary to effect a removal, viz: a majority of those participating in the election. . . . The assessment list had been delivered in the clerk’s office, on the first Monday of June, as required by § 5672, Mansf. Dig. And being so returned, it was a finality for all purposes connected with a county seat election. Ib., 1156. It matters not that there were other persons in the county who were liable to assessment for a per capita tax and whose names were afterwards added by the assessor; nor that some of the persons included in the list were not, in fact, legal voters. The statute has adopted the list for convenience as a criterion to determine the result, under the notion that it would show approximately the number of voters living in the county. It would destroy the certainty and the value of such a criterion to allow the courts, in the event of a contest, to inquire into the completeness of the list, or to enter upon an investigation into the qualifications of electors who did not offer to vote.” This case was approved and reaffirmed in Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686.

This act, supra, might have fixed instead of 15%, 20% or 50% of the poll tax list, as the criterion, or in'faet some other criterion than the official poll tax list.

Hempstead county who had paid a poll tax for the year 1943, according to the official poll tax list filed -by the collector in the office of the county clerk, and 15% of this number is 747, it was only necessary, for the petition to contain the names of 747 qualified electors of the county. It is further conceded that the petition contained 1,602 names. In effect, appellees challenged 615 names on the *620petition which left 987 signers on the petition who were unchallenged, or 240 more than the required 747. As noted above, the trial court found that the petition was signed by 1,056 qualified electors of the county.

For the error indicated, the judgment is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion.

McFaddin, J., not participating.