(concurring). It has not been made to appear that the court below was in error in finding that a majority of the qualified electors of Hempstead county voted to remove the county seat to Hope, and for that reason I concur in the holding that the judgment should be affirmed.
I do not concur in the. reasoning by which the majority have reached that conclusion. The majority say that “section 2 of act 123 of 1935 (carried into Pope’s Digest as § 4693 thereof) furnishes a.proper test to determine who are electors.” But that test was not applied. Had it been, many of the 3,169 names appearing on the collector’s list would have been found not to be qualified electors. The court below so found, and this is admitted to be true.
I think the majority misconceive the purpose and effect of § 2398, Pope’s Digest, and also the effect of the opinion of this court in the case of Vance v. Austell. It is true, of course, as the majority say, that § 2398, Pope’s Digest, has changed the law as it existed when the opinion in Vance v. Austell was rendered, the change being to require, in certain counties (Hempstead, among others), a majority vote of the qualified electors as certified by the collector, instead of a majority of all persons assessed, as was formerly the law, and it is true also, as the majority say, that in those counties to which § 2398, Pope’s Digest, applies, the list of voters certified by the collector is conclusive of the number of which a majority must be obtained to remove the county seat. In other words, the collector’s certified list is conclusive as to the number of votes required to remove the county seat, and a vote of not less than one more than half that number is required to remove the county seat.
In determining that number it is immaterial that persons who have been certified by the collector as qualified electors are not such in fact. They must be included, nevertheless, and at least one more than half that number must vote for removal to remove the county seat. Section 2398, Pope’s Digest, merely provides the basis for determining the number of qualified electors. Section 3. of art. 13 of the Constitution provides that “No county seat shall be established or changed without the consent of a majority of the qualified voters of the county to be affected by such change,’.’ and § 2398, Pope’s Digest, provides how the number of qualified voters may be ascertained. The majority quote Vance v. Austell as authority for holding that this is “not an unreasonable regulation,” which is, of course, the law. But when you have thus ascertained what number of votes will be required to remove the county seat, there remains to be determined whether the necessary number of votes were cast for that purpose, and this means, of course, legal votes. No others have the right to vote in determining that question. The provisions of § 2 of act 123 of the Acts of 1935, as • well as those of' any other applicable statute, may be invoked, not for the purpose of changing the arbitrary number of which a majority must be received, but for the purpose of determining whether persons who voted were in fact qualified electors.
As I understand the majority opinion, it is held that the vote of no person may be challenged if his name appears on the list certified by the collector. It may not be for the purpose of determining the total number of qualified electors in the county, but it does not follow, and § 2398, Pope’s Digest, does not provide, that one, not a qualified elector, may vote for removal if his name was certified by the collector as having paid a poll tax. It has never been held that the mere possession of a poll tax receipt qualifies one to vote, if he is otherwise ineligible to vote. The contrary has been held in all of the innumerable election contests which have been reviewed by this court. If § 2398, Pope’s Digest, is so construed, it is clearly unconstitutional, as the section of the Constitution above quoted permits only “qualified voters”to participate in the election and to have their votes counted for removal. So that in any election contest over the removal of the county seat, the question to be determined is whether those voting for removal were in fact qualified electors, and whether the number of qualified electors so voting totaled more than half the number certified by the collector as having paid their poll tax.
Act 38 of the Acts of 1901 became and is § 2398, Pope’s Digest, and was construed by this court in the case of Williamson v. Russey, 73 Ark. 270, 84 S. W. 229. The question there involved was whether the requisite number of electors had signed petitions for the holding of an election upon the question of the removal of a county seat. Under the law, as it then existed, and now is, it was necessary for the petitions for ordering an election to contain a third of the qualified electors. In construing this act of 1901, now appearing as § 2398, Pope’a Digest, it was said in the case of Williamson v. Russey, supra: “2. The act of 1901, p. 76,-fixes the collector’s list of the poll taxes paid as the rule to govern in determining what is the number of electors in the county; in order to ascertain the majority, etc. The legislature could fix any definite and certain number or any definite and certain way of ascertaining the number, as was herein done. This is but an approximation, for there may be many legal voters not found on that list, young men arriving of age within the prescribed time, qualified electors moving from other counties and being in the. county the requisite length of time to vote, persons who -had paid poll taxes and were .accidentally omitted, and possibly others. Yet the collector’s list must be used to govern the ascertainment of the requisite number of qualified voters to be signed to the petition. To illustrate: The collector returns 3,000 electors on his list; then the petition, to become effective, must contain at least 1,000. It might happen that through death and removals there were not 3,000 electors in the county; yet the petition must, under this act, contain 1,000 qualified electors, or it fails. On the other hand, from the causes suggested, there may be over 3,000 electors, and yet the petition is effective if it contains 1,000 qualified voters, although all of them may not be upon the list.”
The rule there announced is that persons may sign the petition for an election although their names do not appear on the collector’s certified list, if they are qualified electors. The corollary of that proposition is that they may not sign the petition, or vote, unless they are qualified electors, even though their names appear on the collector’s list. At the election some number in excess of half the number of persons certified by the collector as having paid their poll tax must vote for removal to authorize that action, but if a majority of the qualified electors did so vote, removal carries, even though, as was said in the Williamson case, supra, “all of them may not be upon the list” certified by the collector.
The right to vote is not conferred by the fact alone that names appear upon the collector’s certified list, nor may it be denied because the name of a qualified elector does not appear upon the list. To hold otherwise would render ineffective the mandate of the Constitution that the county seat may’ be removed only upon the vote of a majority of the “qualified voters” in the county affected.
For the reasons stated I concur only in the judgment of the court, and am authorized to say that the Chief Justice shares the views here expressed.