214 S.W.2d 221 | Ark. | 1948
Appellees filed petitions in the County Court of Marion county, on May 10, 1948, praying for a local option election under the provisions of Initiated Act No. 1 of 1942.* The present appellants *1028 appeared as remonstrants in the County Court, on May 20, 1948, and challenged the sufficiency of the petitions. There was a hearing in the County Court presided over by County Judge Burl King; and the petitions were held sufficient. The remonstrants then appealed to the Circuit Court for trial de novo as provided by law.
On June 10, 1948, in the Circuit Court, the said remonstrants filed a pleading in which they alleged that County Judge Burl King had signed one of the petitions for the local option election, and that about twenty of Judge King's relatives (each within the fourth degree of consanguinity or affinity) had likewise signed the petition. The remonstrants claimed that the signing of the petitions by Judge King and his relatives made Judge King disqualified (under Art. 7, 20 of our Constitution) to preside over the County Court in the hearing on the sufficiency of the local option petitions; and — said the remonstrants — the County Court as so constituted had no jurisdiction to consider the petitions, and therefore the Circuit Court acquired no jurisdiction on appeal. The motion also stated that the movants (i e., remonstrants) did not know until after the County Court hearing that either Judge King or his relatives had signed the petitions for the local option election. The prayer was that the petitions be dismissed. The Circuit Court overruled the motion of the remonstrants; and the correctness of that ruling is the sole question on this appeal.
The disqualification of the Judge may be waived by failure to seasonably object. Washington Fire Ins. Co. v. Hogan,
In the case at bar the movants, with the exercise of due diligence, could and should have seen that Judge King's name was on the petition as it was the fourth name on the first petition; and the movants' failure to file in the County Court the motion for disqualification constituted a waiver of the alleged disqualification.
Whether Judge King was disqualified because of signing the petition is a question we need not decide. Some cases hold that the signing of a petition for a local option election does not disqualify the Board or official who is later to pass on the petition. See Galey v. Board of Commissioners,
The Chief Justice concurs.