concurring in part and dissenting in part. In reaching the result it does, the majority court ignores the election cases that control the sole issue involved in this litigation. Simply put, appellants claim “Union Precinct” was invalid because that precinct was never formally established; therefore, the election results voting that precinct “dry”, were null and void. This court, in Goodall v. Adams, 277 Ark. 261, 640 S.W.2d 803 (1982), answered this precinct validity issue. There, citizens successfully filed a petition seeking a wet-dry election in Wilborne West Precinct; opponents argued that the precinct was not formally established under Ark. Stat. Ann. § 3-601 (Repl. 1976) [now Ark. Code Ann. § 7-5-101 (1987)], so the local option election in the precinct could not be valid. This court disagreed, stating the following:
The precinct in question has existed in fact through at least three elections. Its boundaries are not questioned by anyone. It has been recognized by the election officials and voters as a valid precinct and the only question of legal insufficiency is the lack of a formal order. As the trial court observed, such an order could be entered at any time. It is a mere technicality.
Here, appellants, in oral argument and in their brief, conceded that, while the county board of election commissioners had not formally entered into the record the boundaries of Union Precinct as required by § 7-5-101, Union Precinct had been recognized and used in three prior elections over a period of six years. Accordingly, Union Precinct and its election results were not invalid under the rationale and holding of Goodall.
Another reason exists why appellants should not prevail in their argument. In Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989), we applied the well-settled rule that before an election’, the provisions of election laws are mandatory, and after the election, the provisions are merely directory. In the instant case, the appellants failed to question prior to the election the county election commissioners’ failure to comply with the formal requirements when establishing Union Precinct under § 7-5-101(c). Because appellants waited until after the election to challenge Union Precinct’s validity, the requirements in § 7-5-101 (c) were only directory. In other words, the filing or recording of the Union Precinct boundaries in accordance with §7-5-101 (c) was no longer mandatory after the election was held and the failure to comply with § 7-5-101 (c) could not be used to invalidate an election. Appellants simply had no cause of action cognizable under Arkansas’s post-election contest procedures. Instead, appellants’ remedy was to seek their relief before, not after, the election.
The foregoing case law resolves the primary issue on appeal, and accordingly, the trial court’s dismissal of the appellants’ complaint should be affirmed without modification. The majority opinion notes that the appellants also alleged certain constitutional claims. Basically, they argue that Arkansas’s law, which provides for a ten-day time limit for filing election contests in local option elections, is so restrictive that it virtually denied them due process and equal protection under the law. Again, this constitutional challenge should have been initiated prior to the election rather than to raise it after the appellants learned they had lost the election and decided to invoke such a constitutional claim under the guise of a post-election contest proceeding.
Appellants could have raised their constitutional argument when the citizens, who sought the local option election, filed their petitions with the county clerk. See Ark. Code Ann. § 3-8-204 (1987). Union Precinct had been used in prior elections, and if appellants had obtained legal counsel when these petitions were first filed, they could have timely and properly raised the issues they now belatedly raise after the election results were certified.
In sum, appellants had ample opportunity to be heard on these matters prior to the election, but failed to avail themselves of that opportunity. Once an election is held and its votes are canvassed and certified, those results should not be so easily challenged and set aside. That is the reason Arkansas case law limits those matters that can be raised in election contest proceedings and requires parties to seek relief prior to the holding of the election. Here, appellants failed to bring a timely suit and their claims were justifiably denied.1 Under these circumstances, this court’s decision should end this litigation, and the majority opinion is wrong in leading the appellants to believe they still may have a viable cause of action.
Hays, J., joins.The trial court actually dismissed the appellants’ suit because they failed to file their election contest within the ten-day period required under Ark. Code Ann. § 3-8-309 (1987). While I disagree with the reason for its dismissal, I would still affirm its dismissal with prejudice for the reasons set out in my opinion.