# Cain v. Carllee > Supreme Court of Arkansas · February 23, 1925 · 168 Ark. 64 URL: https://www.frixlaw.com/law-library/cases/3275226 ## Case - **Full name:** Cain v. Carllee. - **Court:** Supreme Court of Arkansas - **Decided:** February 23, 1925 - **Citations:** 168 Ark. 64; 269 S.W. 57; 1925 Ark. LEXIS 91 - **Precedential status:** Published - **Opinion:** Dissent by Hart - **Judges:** Smith, Hart - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3275226 ## Opinion text Hart, J. (dissenting.) It may be stated at the outset that the findings of fact by a circuit judge in the trial of the contested election are as conclusive as the verdict of a jury upon conflicting* evidence. Williams v. Buchanan, 86 Ark. 259 . In this case there was a general finding of facts that E. M. CarlLee received a majority of the votes cast at the primary election for county judge which was contested by W. R. Gain. In trying this issue no declaration of law was made or refused, and the court is therefore presumed to have acted upon correct views of legal principles applicable to the facts. In other words, the case stands as though a properly instructed jury had returned a verdict for CarlLee. Blass v. Lee, 55 Ark. 329 , and Blass v. Anderson, 57 Ark. 483 . It is true that the court has held that findings of facts may be reduced to writing after the trial; but the court is not required to do so. In the case before us there was no request made by appellant to the court for a special finding of facts. The motion for a new trial filed by him, was an assignment of errors alleged to have been committed at the trial, and was not a request that the findings of the court be reduced to writing and filed. Buell v. Williams, 127 Ark. 58 . Of course, the objection that the court’s general findings of facts is not sustained by the evidence may be made by a motion for a new trial, no exceptions at the time the finding is made being necessary. In such a case, however, the only question on appeal is whether there was any evidence to support the finding of the court. Greenspan v. Miller, 111 Ark. 190 . The rule as to the court’s conclusions of law is different. Where there are no exceptions to the court’s conclusions of law, they cannot be reviewed here. Dunnington v. Frick Co., 60 Ark. 250 , and Bluff City Lbr. Co. v. Floyd, 70 Ark. 418 . Mere statements in a motion for a new trial that certain rulings were made by the court and excepted to by the party amount to nothing unless it is shown by the bill of exceptions that such rulings were made and excepted to. A motion for a new trial has never been used to incorporate anything into the record or any exceptions to anything done by the court. Its sole use is to assign errors already committed by the court, except for newly discovered evidence. McKinley v. Broom, 94 Ark. 147 , and Cravens v. State, 95 Ark. 321 . We do not think that the ruling in Craig v. Sims, 160 Ark. 269 , is conclusive on the point of law decided 'by the majority opinion. In that case it was held that persons not paying their poll tax after a certain day named in the statute were not entitled to vote in the primary election. The precise point was whether a poll tax could be paid subsequent to the first Monday in July just preceding the primary election in August of the same year. The language used in an opinion should be construed as a whole with reference to the precise question under review. Isolated sentences may be frequently quoted from, in an opinion which would tend to give it a-color not warranted by construing the opinion as a whole and with reference to the precise point under discussion and review. The question under consideration in this case involves the construction of § 3738 of Crawford & Meses ’ Digest. That section, provides for the addition of emitted names iat 'any time after the assessment list has been delivered to the county clerk and placed in the hands of the collector before the Saturday next preceding the first Monday of July when the collector is required to make his final settlement with the county court. This section is a part of our general election laws, and it is more in accord with our previous decisions to hold that it is directory and not mandatory. For example in Whittaker v. Walson, 68 Ark. 555 , it was held that payment of one’*s poll tax by another, not by'request, but as a gift, in order to influence his vote without ‘any offer on the voter’s part to reimburse the other for such payment will not constitute him a competent voter, though otherwise qualified. In its opinion the court referred to the fact that the Constitution of this State declares the qualifications of an elector and further provides that every such elector who shall exhibit a poll tax receipt, or other evidence that he has paid his poll tax at the time of collecting taxes next preceding such election, shall be allowed to vote at any election in the State of Arkansas. The court said that the object of the requirement of the receipt, or other evidence of the payment of the poll tax was to make the payment of the tax by the elector a condition upon which he shall be allowed to vote, and to prohibit ‘him from voting until he does so. The court further said that the elector need not pay the tax in person, provided he in good faith authorized another to pay it for him, or ratified the act of another who had done so without having been previously authorized, and that the ratification must be accompanied -with the promise to reimburse him. It would seem that, if the court thought that section 3738 was mandatory, it would not ¡have¿been necessary for the court to have held that another, per son-could not pay the poll tax for an elector without being first requested to do so by such elector and without any expectation or promise of reimbursement. Whittaker v. Watson, 68 Ark. 555 , and Rhodes v. Driver, 69 Ark. 501 . Art. 3, section 2, of our Constitution provides that no law ¡shall be enacted whereby the right to vote at any election shall be made to depend upon any previous registration of the elector’s name. If § 3738 is to ¡be construed as mandatory, it would.'for all practical purposes be a registration statute. Moreover Amendment No.6 of our Constitution, after declaring the qualifications of an elector, provides that if such elector shall exhibit a poll tax receipt, or other evidence that he has paid his poll tax at the time of collecting faxes next preceding such election, he shall be allowed to vote at any election in the State of Arkansas. We think this provision should be construed liberally in order to carry out its purpose. The only prerequisite is that the poll tax he paid within the time prescribed by law. It is no answer to this to say that we have held that the provisions of our Constitution do not apply to primary elections. As we have already seen, § 3738 is a part of our general election laws and is also made a part of our primary election laws. It will be presumed that the Legislature intended that this section in question should receive the same construction as it would receive in a contest under the general election laws of the State. The writer is authorized to announce that Judge Humphebys concurs in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3275226. Public record. Not legal advice.