#### Darmer *v.*White.

Opinion delivered November 10, 1930.

*Elmo Carl-Lee,*for appellant.

*Roy D. Campbell,*for appellee.

Smith, J.

This appeal involves a contest for the nomination of the Democratic Party for the office of tax assessor in Woodruff County. On the face of the returns Prank Darmer received 630 votes and W. B. White a total of 617. Three other contestants for this office received a scattering vote, the total of all of these being less than the vote received by either Darmer or White.

White demanded a recount by the central committee, and in due time filed a contest containing numerous allegations of fraud. and illegal voting, to his prejudice. He also alleged that a correct count of the votes oast would show that he had received a' plurality off the votes.

A recount of the ballots cast was had, presumably under the order of the court in which the contest was pending, and as each precinct was counted a stipulation was entered into and signed by the parties showing the result of the recount. A tabulation of the figures disclosed by these stipulations shows that Darmer received 619 votes and White 624 votes, so that White, and not *639Darmer, bad received a plurality of tbe votes as shown by tbe ballots which bad been returned by the election officers as tbe ballots cast in tbe election.

Upon calling tbe case for trial Darmer filed a motion to- dismiss tbe complaint, for tbe reason that tbe collector of taxes did not at any time prepare and file with tbe county clerk a certified list of poll taxpayers as required by § 3740, CL & M. Digest. Counsel for White conceded tbe truth of tbe allegation of this motion, but stated that be was standing on tbe recount, and not on tbe certified list, and that be bad some testimony to offer. Whereupon tbe court ruled as follows: “I am going to- sustain tbe motion as to tbe list, -but I am going to refuse to dismiss tbe cause, because counsel announces that be has other proof which be wishes to offer, which be stands upon, other than tbe alleged certified list.”

Tbe court then permitted counsel for White to offer in evidence tbe stipulations, which, as has been stated, show that White bad received a plurality of tbe votes as shown by tbe -ballots which bad been duly returned by tbe election officers. Objection was made a-s each stipulation was read into tbe record, and exceptions were saved to tbe action of tbe court in admitting them in evidence. After this evidence bad been admitted, tbe court asked counsel for Darmer if be wished to offer any testimony, but none was offered, whereupon tbe court found that, *prima facie,*White was tbe nominee, and judgment was rendered to that effect.

It was held by a majority of tbe court in tbe case of *Brown*v. *Nisler,*179 Ark. 178, 15 S. W. (2d) 314, (to quote a head-note), that: “In an election contest by one claiming to be tbe rightful nominee, basing bis claim almost entirely on tbe printed list of- voters furnished to tbe election judges, bis complaint was properly dismissed where the printed list was invalid Ifior want of substantial compliance with 'Crawford & Moses’ Digest, § 3740,” and that bolding was adhered to in tbe opinion banded down today in tbe case of *Cain*v. *McGregor.*But *640the ruling of the court below on this question conformed to the ruling in the case of *Brown*v. *Nisler, supra.*

It does not follow, however, and we have never held, that there can be no contest of an election where § 3740', C. & M. Digest was not complied with.

When this section has been complied with, and the collector has furnished a list of persons who have paid their poll tax, authenticated 'by the collector’s affidavit, and the county clerk has recorded this list, .and has furnished a certified copy thereof to the election commissioners, who have caused the list to be printed, and copies of the list so printed have been furnished to the judges of the election, a *prima facie*evidence of the right to vote has been supplied. But the failure of the collector to perform his duty in this behalf, or the omission to print the name of an elector who has paid his poll tax, does not exclude the elector from voting who is otherwise qualified to do- so. The case of *Brown*v. *Nisler, supra,*reviews the statute (§ 3777, C. & M. Digest) declaring what evidence may be offered of one’s right to vote, whether his name appears upon the printed list or not, or whether that list has been authenticated by the collector or not.

There was no showing whether the electors had complied with the provisions of ’§ 3777, -C. & M. Digest, upon the failure of the collector to comply with § 3740.

The effect of appellant Danmer’s contention is that he is the nominee, not because he received the plurality of the votes cast, but because all the votes were illegal. According to the undisputed testimony, Darmer did not receive the plurality df the votes as evidenced by the ballots returned by the election officers, and there was no testimony showing what number, if any, of the electors were not qualified to vote. The testimony showed only that neither party was entitled to rely on the printed list of the electors, for the reason that it had not been certified as required by § 3740, O. & M. Digest. But this fact did not invalidate the election nor prevent a contest of it. Enough testimony was offered to make a *prima**641*facie*showing that White had received the plurality of the votes cast at the election, and no testimony was offered to the contrary, nor was any testimony offered that any of the electors had voted illegally.

The court therefore properly declared White the nominee, and the judgment to that effect must be affirmed, and it is so ordered.