TOWNES v. MCCOLLUM
5-138
Opinion delivered April 9, 1953.
256 S. W. 2d 716
The pivotal question presented, therefоre, resolves itself into a question of fact, which was decided by the trial judge sitting as a jury. We deem it unnecessary to set out the evidence in more detail than already given because it is obvious thаt there is substantial evidence to support the finding of the trial court.
Affirmed.
The Chief Justice not participating.
Harold Sharpe and Glenn F. Walther, for appellee.
GEORGE ROSE SMITH, J. This is a suit by the appellants, three taxpayers, to enjoin the Board of Election Commissioners of St. Francis County from holding an election to determine whether horse racing is to be permitted in the county. The statute provides that such an election may be called upon the petition of 15% of the qualified electоrs in the county.
We think the demurrer should have been ovеrruled, for the complaint states a cause of action. The statute requires that fifteen per cent of the voters petition for an election of this kind. The demurrer admits the insufficiency of the petition in this case. This being true, the election has not been properly called and should not be conducted at public expense.
It is argued, however, that the plaintiffs’ remedy is against thе county clerk, under the Initiative and Referendum Amendment and its enabling legislation.
It is also suggested that the plaintiffs had an adequate remedy at law by asking the circuit court for a writ of certiorari to review the clerk‘s or thе board‘s determination that the petition is sufficient. The adequacy of the legal remedy is immaterial, however, when a taxpayer seeks protection against an illegal exaction; fоr the constitution itself confers the right to injunctive relief. For example a statute which attempts to abolish the remedy by injunction and to substitute a remedy at law is unconstitutional. McCarroll v. Gregory-Robinson-Speas, Inc., 198 Ark. 235, 129 S. W. 2d 254 (1939), 122 A. L. R. 977; see also Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875 (1944).
Reversed, with directions thаt the demurrer be overruled. The mandate will issue immediately.
GRIFFIN SMITH, Chief Justice, concurring. I entirely agree with the majority to the extent it has gone, but would add that I am still of the view that pari-mutuel gambling as legislatively аnd judicially sanctioned is violative of
The majоrity there rested its determination upon the chimerical assertion that pari-mutuel betting is a game of skill. As the dissenting opinion asserts, the result in point of profit or loss is so interlaced with chance thаt not even the management can tell, until the final bet is in, what the lot of the ticket-holder will be. Owners of the fran-
A convincing demonstration of this so-called applied skill, repeatedly overtoned in the majority‘s opinion in Longstreth v. Cook, is found in financial returns for the past six years, including 1953. The state‘s “take” in half a dozen years has been $4,306,652.80, while owners who have operated with such consummate finesse received $7,274,701.81. Thus, during the brief period in question, the public has paid $11,581,354.61 for access to the venture of glamouring skill and the authorized bookmakers have apportioned the remainder of $70,758,566 so hopefully donated to the goddess of skill.
I would reexamine the Longstreth-Cook decision in the light of known factors and overrule its intrusion upоn the Constitution.
ED. F. MCFADDIN, Justice (dissenting). My dissent is because a court of equity, in the absence of a constitutional provision, is not the proper forum in which to seek to enjoin an election.
In invoking equitablе jurisdiction to enjoin an election, the plaintiffs (appellants here) had to decide whether or not such desired relief came under Constitutional Amendment No. 7. If the appellants had claimed that
“The sufficiency of all local petitions shall be decided in the first instance by the County Clerk or the City Clerk, as the case may be, subject to review by the Chancery Court.”
The case of Hutto v. Rogers, 191 Ark. 787, 88 S. W. 2d 68 (1935), supports the claim that equity had jurisdiction to deter-
So the appellants claim that
“Issuance of writs of certiorari—Temporary restraining orders.—Said circuit courts shall have power to issue writs of certiorari to any officer or board of officers, city or town council, or any inferior tribunal of their respective counties, to correct any erroneous or void proceeding or ordinance, and to hear and determine the same; application for such writ may be made to the court or the judge thereof in vacation on reasonable notice;
and a temporary restraining order may be granted thereupon on bond and good security being given, in a sum to be fixed by the court or the judge in vacation, conditioned that the applicant will perform the judgment of the cоurt.”
Thus the appellants had a perfect right to go into the law court and have a writ of certiorari issued against the Board of Election Commissioners.4
But instead of following the remedy at law, the аppellants have gone into equity, claiming that they want to prevent the expenditure from the public revenue. It seems clear to me that the appellants are not seriously concerned with trying to save the public revenue: they are merely rendering lip service to the “public revenue” allegations. What the appellants want to do is to prevent the election. The cases on equity‘s refusal to enjoin an election are legion. In 33 A. L. R. 1376, there is an Annotation on the subject, “Power to Enjoin Holding of an Election“; and cases from a score of jurisdictions are cited to sustain this general rule:
“In general, in the absence of some special reason, such as the holding of an election without apparent authority of law, on questions affecting personal or property rights and involving the expenditure of funds other than the cost of the election, the courts have denied their power to enjoin the holding of elections.”
Likewise in 70 A. L. R. 733, there is an Annotation containing cases decided subsequent to the first Annotation, and many later cases are cited, all supporting the rule previously stated.
Therefore, I dissent.