The history of this litigation and the facts out of which it arises are set out in the opinion in the case of Beene v. Hutto, 192 Ark. 848, 96 S.W.2d 485. See, also, Hutto v. Rogers, 191 Ark. 787, 88 S.W.2d 68. *Page 108
In the case of Beene v. Hutto, supra, a demurrer was sustained to the complaint, and the question presented upon the appeal was the sufficiency of the allegations of the complaint to constitute a cause of action. The suit was brought upon the assumption that the salary act had been initiated and adopted by the electors of Faulkner county, and it was prayed that it should be adjudged that the act had been adopted and that the officers affected be required to receive compensation and to make settlement of the fees which they had collected in accordance with its provisions. It was held upon the appeal that the complaint did state a cause of action, and in the opinion it was said: "The complaint alleges that the election was legally held and a majority of the voters of Faulkner county voted for the initiated act. The demurrer admits these allegations to be true." Upon the remand and trial of the case in the court below, it was found and adjudged that the act had not been legally enacted, and this appeal is from that judgment.
It was essential, to adopt the act, that it should receive, at the election, a majority of all the votes cast on the subject, and if it failed in this respect it is unnecessary to consider the other questions presented and discussed in the briefs.
It was attempted, without success, to prove, by election officers in fifteen out of thirty precincts in the county, that a majority of the votes had been cast for the act. It was shown at the trial from which this appeal comes that the suit was brought more than six months after the date of the election, and, as is said in appellant's brief, "No record of the election returns was kept so far as county and local matters were concerned, and all ballot boxes, tally sheets, certificates, and other documentary evidences were destroyed by the (`election') commissioners, presumably as the law provides." Upon this question, see Condren v. Gibbs, 94 Ark. 478, 127 S.W. 731, construing 3838, Crawford Moses' Digest, which section requires these records to be destroyed, unless the election commissioners have been notified within six months after the election to preserve them. *Page 109
To make proof of the material and essential allegation that the act had been adopted at the election on the subject, appellant offered in evidence a stipulation filed in the first case — the one reported under the style of Hutto v. Rogers, supra — to the effect that the act had received a favorable and sufficient vote. But the objection was offered: "That was between different parties in the other case. They are not the same parties here in this case." If this objection is well taken, there is a failure of proof to show the adoption of the act.
Many authorities are cited to the effect that it is not within the power of parties litigant to admit or stipulate as to the validity or constitutionality of an act, for the reason that these are judicial questions, and the rights of many other persons may, and probably do, depend upon their decision. Pretermitting this discussion and the insistence also that the parties only stipulated as to what facts were or would be shown by the ballots then in existence, if they were counted which they had the right to do, we announce our conclusion that the former stipulation was inadmissible in the present case. It was filed in a different proceeding, pending in a different court, where the parties were not identical and the relief prayed was not the same. See opinions in the former cases above referred to. The first appeal was disposed of upon the proposition that the sufficiency of a petition for initiating local laws, which the chancery courts had the right to determine before the election, becomes a moot question where the election had been held before the jurisdiction of the chancery court was invoked. There were eleven plaintiffs in the chancery case. There are fifteen in the present case. Four of the plaintiffs in the former case were not made plaintiffs in the present case. In the present case four additional defendants were named, these being the circuit clerk, the county treasurer, the sheriff and collector, and the assessor, and the additional relief was prayed in this last case that these officers be required to make account of the administration of their respective offices pursuant to the provisions of the initiated act, which the court was asked to adjudge had been adopted and had become a law. *Page 110
In no event could the additional defendants be bound by admissions made in a suit to which they were not parties, even though the subject-matter and the relief prayed had been the same in both suits, which was not the case. In the chapter on Evidence in 22 C.J., page 340, it is said: "An agreed statement of facts made for the purpose of one action cannot be received in another action between different parties, merely because the latter action relates to the same subject-matter."
It not having been shown that the salary act was adopted, the cause of action was properly dismissed, and that judgment is affirmed.
HUMPHREYS and MEHAFFY, JJ., dissent.