{
  "id": 8722777,
  "name": "E. E. GREGORY et al v. Court GORDON et al",
  "name_abbreviation": "Gregory v. Gordon",
  "decision_date": "1967-12-04",
  "docket_number": "5-4386",
  "first_page": "635",
  "last_page": "639",
  "citations": [
    {
      "type": "official",
      "cite": "243 Ark. 635"
    },
    {
      "type": "parallel",
      "cite": "420 S.W.2d 825"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 390,
    "char_count": 6291,
    "ocr_confidence": 0.541,
    "pagerank": {
      "raw": 2.7407352067262085e-07,
      "percentile": 0.8318788083784036
    },
    "sha256": "25b950962d7deb749fca8ee661ec640024c93c46659406dd938c5ee3ecbb0572",
    "simhash": "1:e09ed536b5ee0ecc",
    "word_count": 1068
  },
  "last_updated": "2023-07-14T18:02:41.806727+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "E. E. GREGORY et al v. Court GORDON et al"
    ],
    "opinions": [
      {
        "text": "Paul Ward, Justice.\nThis is an action to invalidate the result of an election in Arkansas County which imposed a one mill tax on real and personal property to be used for the maintenance of a public library. The tax issue was submitted at the General Election held on November 8, 1966.\nNo testimony was introduced before the trial court, and the essential facts presently set out are either undisputed or were stipulated by the parties.\n(a) The tax issue was not presented to the voters in Stuttgart because that Citv had already voted a tax to maintain a municipal library.\n(b) A \u201cproper\u201d ballot, as prescribed by the Election Commissioners, should have been printed in this form:\nFOR a one mill tax on real and personal property to be used for maintenance of a public county library service or system, (followed by a \u201cbox\u201d to be used by the voter to indicate his choice.)\nAGAINST (followed by the same words and \u201cbox\u201d that follows \u201cFOR\u201d above).\n(c) Some of the printed ballots were \u201cproper\u201d and some had no \u201cbox\u201d after \u201cAGAINST\u201d and also omitted the word \u201csystem\u201d. These ballots will be referred to as \u201cdefective\u201d ballots.\n(d) \u201cProper\u201d ballots were distributed to all \u201cabsentee\u201d voters and to one voting precinct.\n(e) \u201cDefective\u201d ballots were distributed to the other twenty-one voting precincts.\n(f) The compilation of the votes (under supervision of the trial judge) reflects:\n\u2014For the tax 1506,\n\u2014Against the tax 1035, and\n\u2014Not voting 1540.\nOn December .9, 1966 Court Gordon and others (residents and property owners of Arkansas County), appellees, filed a complaint in circuit court against E. E. Gregory et al (Election Commissioners), appellants, alleging in substance that the use of \u201cdefective\u201d ballots \u201coperated as an obstruction to'the free and intelligent casting of the vote\u201d and created \u201ca doubt as to how the election would have resulted if the ballots had not been defective\u201d. The prayer was, in essence, that \u201cthe said one mill tax be set aside\u201d as \u201cvoid and illegal\u201d. Appellants entered a general denial.\nFollowing a hearing on the issue raised the trial court entered a judgment, holding: The relief sought by plaintiffs (appellees) is granted; the one mill tax is hereby set aside and held for naught, and; the one mill tax on real and personal property in Arkansas shall not be assessed.\nFor reversal appellants make two contentions: One, the suit was not filed in time; Two, the \u201cdefective\u201d ballots did not affect \u201cthe free and intelligent casting of the vote\u201d\nOne. It is here contended by appellants that the case must be reversed because appellees failed to comply with Ark. Stat. Ann. \u00a7 3-814 (Eepl. 1956), but we see no merit in this contention.\nThe mentioned section, in material parts, reads:\n\u201cWhenever it shall appear by affidavit that an error or omission has occurred ... in the printing of ballots, the Circuit Court . . . shall, upon the application of any elector, by order, require the County Election Commissioners to immediately correct such error ...\u201d\nIt is admitted by appellants that appellees\u2019 complaint was filed within the thirty-day period provided by law. The answer filed by appellants, in material part, reads:\n\u201cThe defendants deny each, and every allegation contained in the complaint of the plaintiffs and the amendments thereto.\u201d\nAs previously stated, no oral testimony was introduced. Consequently it definitely appears from the record that the matter of an \u201caffidavit\u201d was not raised by appellants in the answer or in the facts stipulated by the parties.\nThis Court has many times held that an objection not raised in the trial court cannot be raised for the first time on appeal. This rule is particularly applicable here. If the matter of an \u201caffidavit\u201d had been raised in the trial court or in the stipulations appellees might have been able to supply the same. This Court does not know, and will not presume, appellees could not have done so.\nTwo. The other point relied on by appellants is stated as follows:\n\u201cErrors appearing on the face of a part of the ballots . . . were insufficient to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result.\u201d\nAgain, for reasons presently stated, we do not agree.\nFirst, we call attention to the following statutes which are applicable here. They all appear in Ark. Stat. Ann. (Repl. 1956)\n\u00a7 3-811\n\u201cAll election ballots provided by the County Election Commissioners of any county in this State for any election shall be alike . . (Emphasis Supplied).\n\u00a7 3-822\n\u201cUpon receiving his ballot, the voter shall proceed to mark it by placing an \u2018X\u2019 m the appropriate squares ...\u201d (Emphasis Supplied).\nIt is not denied that about 95% of the voters in this election were furnished \u201cdefective\u201d ballots. Also, the record reflects that there were 3970 - votes cast in the Governor\u2019s race; that on five other issues the percentage of votes (based on 100% for Governor) ranged from 83% to 96%; and, that on the \u201ctax\u201d issue only 61% voted. The record further reflects that where \u201cproper\u201d ballots were furnished 87% voted on the \u201ctax\u201d issue, but where \u201cdefective\u201d ballots were furnished only 60% voted.\nIn 29 C. J. S., Elections, \u00a7 173, page 486, we find this statement: >\n\u201cAn Election for the submission of a proposition will be invalidated by failure to follow the prescribed form in a matter of substance, as, for example, failure to afford the voter an opportunity unmistakably to vote in the negative on the proposition submitted, and the defect cannot be cured by the statement of a majority of the electors that they voted in favor of the proposition.\u201d\nAt page 487 it is further stated:\n\u201c. . . the test to be applied is' whether the ballot used gives the voter as clear an alternative to vote for or against the proposition as is given by the statutory form.\u201d (Emphasis ours.)\nThe real issue before the trial court was whether the use of the \u201cdefective\u201d ballots' caused, or reasonably may have caused, some voters not to vote or to vote for the \u201ctax\u201d. The trial court held this to be the result. We cannot say the trial court erred in so holding.\nAffirmed.",
        "type": "majority",
        "author": "Paul Ward, Justice."
      }
    ],
    "attorneys": [
      "William M. Lee and George E. Pike, for appellants.",
      "Coleman, Gantt, Ramsey & Cox, for appellees."
    ],
    "corrections": "",
    "head_matter": "E. E. GREGORY et al v. Court GORDON et al\n5-4386\n420 S. W. 2d 825\nOpinion delivered December 4, 1967\nWilliam M. Lee and George E. Pike, for appellants.\nColeman, Gantt, Ramsey & Cox, for appellees."
  },
  "file_name": "0635-01",
  "first_page_order": 657,
  "last_page_order": 661
}