(dissenting). My dissent is based on the ground that the majority have given an erroneous interpretation of what is termed the ouster provision (Crawford & Moses’ Digest, § 3776) and that the appeal should be dismissed for the reason that the statute does not authorize the ouster of appellee from the office to which he was elected.
The statute provides, in substance, that if the contest over a nomination, or a criminal prosecution for corrupt practices in the election, be not finally determined until after the general election “and the defendant in the proceeding is elected to the office as the nominee of the party, and it is determined that he was not entitled to the nomination, or the judgment contains a finding that 'he violated the laws, * * * then such judgment shall operate as an ouster from office, and the vacancy shall be filled as provided by law.”
Now, I readily concede that, if it can be seen from a reasonable interpretation of tbe statute tbat its framers really meant to provide for ouster under tbe state of facts existing, as in tbe present case, tbe court would be justified in discarding’ the precise word or words used or in disregarding tbe literal meaning of particular words used, so as to give effect to tbe obvious meaning of tbe framers of tbe statute. But tbe language used does not indicate, with any reasonable degree of certainty, tbat it was meant to provide for an ouster in any instance except where tbe defendant in tbe contest — the contestee— has been elected to tbe office as tbe party nominee and afterward loses tbe nomination by tbe final judgment of tbe court. Nor could the language be changed so as to make a provision to fit tbe present case by a mere substitution of some other word for tbe word “defendant” used in tbe statute. Tbe appellee was not, and is not, in any sense a defendant in tbe contest, and in order to provide for an ouster after bis election to office it would have to be expressed in language sufficient to declare tbat any party to tbe contest who, before tbe final determination of the contest, is elected to office, shall be ousted if tbe final decision be against him. Tbe word “defendant,” as used in tbe statute, means what its ordinary definition implies. It does not include a plaintiff in an action who is tbe appellee on appeal of the cause to a higher court. Such meaning can not reasonably be attributed to tbe uses of tbe word “defendant,” for tbe ouster statute applies also to a “defendant” in a criminal prosecution, and one who appeals from a judgment of conviction would not be a defendant within tbe meaning of tbe statute as now interpreted by tbe majority, who'bold tbat tbe appellee on tbe appeal is tbe “defendant” within tbe meaning of this statute.
In order to see what was in tbe minds of tbe framers of this section of tbe statute, it should be considered in connection with tbe preceding section, and when tbe two sections are thus considered it becomes clear, I think, tbat the framers of the statute used the words “successful candidate” in one section and “defendant” in the other, synonymously as referring to the candidate who has been successful in the primary election, and they do not refer to a plaintiff or contestant in an action who is adjudged to be the rightful nominee.
This is merely a failure on the part of the framers .of the statute to provide for such a contingency as is presented in the present case. However desirable it may appear that such a contingency should be provided for, the courts are not authorized to supply the omission.
It is not essential to the validity of this feature of the statute that it should be held to be applicable to an appellee. The lawmakers had the power to create the remedy and prescribe its terms and extent. A contestant for office can not complain if he finds himself without a remedy under given circumstances. The statute does not discriminate against individuals or classes. It merely provides that, if a contestee is elected to office, he must give up the office if he finally loses the contest. The fact that the statute does not provide, reciprocally, that the contestant must also give up the office if he finally loses the contest does not render the statute void.
Such being my interpretation of the statute, I think that the appeal of appellant shold be dismissed for the reason that the election of appellee has brought the contest to an end, and the decision of this court as to the correctness of the rulings of the trial court, involves moot questions.
I am also unable to agree with the majority in the interpretation of the section of the statute (§ 3772) in regard to the supporting affidavits. The statute does not require that the affidavits must be made by citizens or electors of any particular party, nor that they must have voted in the primary. If they are electors of the county, they are qualified.
Neither do I agree to that part of the opinion holding that the complaint can be amended to embrace charges of fraud in other townships. The proceeding is purely statutory, and is not a civil action within the meaning of our statute on amendments to pleadings. Davis v. Moon, 70 Ark. 240. The affidavits of ten citizens must, under this statute, support the charges in the complaint which can not, after the expiration of the time specified for filing it, he amended to embrace other charges. Russell v. Logan, 136 Ark. 217.
I agree with the majority that the trial court erred in its ruling concerning the right of either party to the contest to purge the ballot of the votes of persons who were not members of the Democratic party. ¡But for the fact that the right to prosecute an appeal has passed away by the election of appellee to the office, this erroneous ruling of the court would call for a reversal.