upholding limited time of appeal from county court to circuit court under prior law
How later courts described this case
- upholding limited time of appeal from county court to circuit court under prior law
- elections are special proceedings to which the Arkansas Rules of Civil Procedure do not apply
Written by the judges who cited it.
The opinion
Supplemental Opinion on Denial of Rehearing
February 8, 1988
Robert H. Dudley, Justice. The petitioners ask for rehearing. Since there is neither an error of fact nor of law in the original opinion, we deny the petition.
The dissenting opinions contend that the majority opinion misconstrues the case of Henderson v. Anderson, 251 Ark. 724 , 475 S.W.2d 508 (1972). The original majority opinion states:
The appellees argue that the interpretation we adopt is inconsistent with our holding in Henderson v. Anderson, 251 Ark. 724 , 475 S.W.2d 508 (1972). Our holding in that case is that jurisdiction to try local option election contests is in circuit court. All else is dicta.
The statement is correct. The first paragraph of the opinion in Henderson sets out the question that was before the Court: “The question we must resolve is whether the county court had jurisdiction.”
The Henderson opinion summarizes its holding very concisely:
It is therefore our conclusion that Act 108 of 1935 provides that the contest of any local option election should follow the statutes providing for the contest of any election for county officers; and that Act 465 of 1969 provides that the contest for a county office shall be brought in the circuit court.
According to Black’s Law Dictionary, “dicta” are statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand, and they lack the force of an adjudication. Thus, the original opinion in this case correctly interprets Henderson.
The sentence from Henderson, quoted above, which summarizes the holding states that Act 108 of 1935, the local option act, provides for resolution of the jurisdictional question by referring to the statutes governing the contest for election of county officers, which is Act 465 of 1969, or the election code of 1969. Thus, the court in Henderson only applied the 1969 act by incorporation through the local option act.
The paragraph of the local option statute which governed Henderson and also governs the case at bar is as follows:
1. Hearing and determination. The contest shall be heard and determined by the same board which, by law, is authorized and empowered to hear and determine a contest of an election for county officers; and the same provisions of the statutes shall apply to the contest of any election held under this law as are provided for the contest of any election for county officers, except as hereinafter provided.
The first clause of the statute quoted immediately above provides that the contest of a local option election shall be heard by the same court as is authorized to hear the contest of an election for county officers. The last clause of the statute provides that the same provisions of the statutes shall apply to local option election contests as are provided for the contest of any election for county officers. However, the last clause also provides, “except as hereinafter provided.” None of the exceptions which follow in the next section of the statute were material in Henderson; but one of them, the requirement that a contest be filed within 10 days, is the crucial point of the case at bar. The exception, quoted in full in the original opinion, governs the case at bar, and mandates holding that a local option election contest must be filed within 10 days.
The petitioners alternatively ask us to modify the mandate in this case from reversed and dismissed to reversed and remanded in order that they might present arguments that the local option election act is unconstitutional. We decline to do so.
The appellants’ (respondents in this motion) first point of appeal was: “The trial court erred in not dismissing the complaint of the appellees due to the late filing thereof pursuant to Ark. Stat. Ann. § 48-820. The trial court lacks jurisdiction.” Their entire argument on the point was devoted to the proposition that the case should have been dismissed. In response to the point the appellee, petitioner here, argued that Ark. Stat. Ann. § 48-820 (Repl. 1977), the local option act, was not applicable and therefore the trial court correctly refused to dismiss the case. In their brief the appellees never once argued that there remained a constitutional issue to be decided by the trial court. The argument is raised for the first time on rehearing. We do not consider a contention advanced for the first time on rehearing. In Bost v. Masters, 235 Ark. 393 , 361 S.W.2d 272 (1962), in a similar denial of rehearing, we wrote:
In other words, appellee never made the contention, now advanced, in her original brief. We have said on numerous occasions that we do not consider matters, in civil actions, which are not argued in the brief, and any point not argued is deemed waived.
Id. at 399-B, 361 S.W.2d at 277 (citations omitted).
Denied.
Hickman, Hays, & Glaze, JJ., dissent. Purtle, J., concurs.