Ball v. Campbell

• Decision Date: 20 December 1899
• Citation: 59 P. 559,6 Idaho 754
• Parties: BALL v. CAMPBELL
• Court: Idaho Supreme Court

59 P. 559

6 Idaho 754

BALL v. CAMPBELL

Supreme Court of Idaho

December 20, 1899

PLEADING-ELECTION IRREGULARITIES.-A complaint in this case examined and held not to state a cause of action.

(Syllabus by the court.)

APPEAL from District Court, Bannock County.

Judgment affirmed, with costs.

Winters & Guheen, for Appellant.

If the sections of the statute in regard to voting are mandatory then there is no question under the record in this case that the judgment of the lower court should be reversed; but should this court hold that the said sections of the said laws were simply directory, then and in that event we contend that the said malconduct of the said judges of election in said Pocatello precinct No. 2 was so rank and reckless as to give their returns no standing whatever, and thus it would be incumbent upon each candidate to prove, if he can, the number of legal votes cast for him in said precinct; otherwise the said whole vote of the said precinct should be thrown out and set aside and not considered in the said election. We think that this is the rule. (Lloyd v. Sullivan, 9 Mont 577, 24 P. 218; 10 Am. & Eng. Ency. of Law, N. S., p. 766 sec. 2; Attorney General v. McQuade, 94 Mich. 439, 53 N.W. 944; Russell v. McDowell, 83 Cal. 70, 23 P. 183.) Statutory provisions which are clearly mandatory must be substantially complied with; and even directory provisions cannot be so grossly departed from as to make it impossible or extremely difficult to determine whether fraud had been committed or anything done which would affect the result of the election. (10 Am. & Eng. Ency. of Law, N. S., 768; Atkinson v. Lorbeer, 111 Cal. 119, 44 P. 162; Lloyd v. Sullivan, 9 Mont. 577, 24 P. 218; Londoner v. People etc., 15 Colo. 557, 26 P. 135; Attorney General v. McQuade, 94 Mich. 439, 53 N.W. 944, and cases cited; Russell v. McDowell, 83 Cal. 70, 23 P. 183.)

Hawley & Puckett and Thomas F. Terrell, for Respondent.

Undoubtedly the general rule is, that if legal votes have been cast in good faith by honest electors, it is the duty of the court or tribunal trying a contest to ascertain their number and give them effect, notwithstanding misconduct or even fraud on the part of the election officers. Such fraud or misconduct may destroy the value of the officer's certificate, and may subject him to severe punishment, but the innocent voter should not suffer on that account, if by any means his rights can be upheld. (McCrary on Elections, 2d ed., 304; McCrary on Elections, 3d ed., 489; Luckey v. Police Jury, 46 La. Ann. 679, 15 So. 89-93.) The complaint or petition in an election contest must state the grounds of contest with particularity and certainty, so that the adverse party may be prepared to meet them, and not be taken by surprise. (Todd v. Stewart, 14 Colo. 286, 23 P. 426; Smith v. Harris, 18 Colo. 274, 32 P. 616; Howard v. Shields, 16 Ohio St. 184; Whitney v. Blackburn, 17 Or. 564, 11 Am. St. Rep. 857, 21 P. 874; Greely v. Holland, 14 Nev. 320; Soper v. Sibley Co., 46 Minn. 274, 8 N.W. 1112: Boyer v. Teague, 106 N.C. 576, 19 Am. St. Rep. 547, 11 S.E. 665; Melvin's Case, 68 Pa. St. 333; Batterson v. Fuller, 6 S. Dak. 257, 60 N.W. 1071; Taylor v. Taylor, 10 Minn. 81 (107); Rigsbee v. Durham, 99 N.C. 341, 6 S.E. 64; Whipley v. McCune, 12 Cal. 352.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

At the general election held in Bannock county in November, 1898, the plaintiff and defendant were candidates for the office of clerk of the district court for said Bannock county. The defendant received the certificate of election, and duly entered upon the performance of the duties of said office. Plaintiff brings this action under the provisions of the act of February 25, 1891, concerning elections and electors, and the acts amendatory thereof, for the purpose of contesting the election of defendant. To the complaint of the plaintiff filed herein, the defendant interposed a general and special demurrer, the district court sustained said demurrer, and, plaintiff declining to further amend (the complaint had been once amended), the court rendered judgment dismissing the complaint, with costs. From such judgment this appeal is taken.

The only question submitted for our decision is, Was the action of the district court in sustaining the demurrer of defendant to plaintiff's complaint erroneous?

The complaint, after some preliminary allegations, proceeds as follows: "7. That by and through the malconduct of the judges of election in said Pocatello precinct No. 2 and each of them, the election in said Pocatello precinct No. 2 is and was fraudulent, corrupt, illegal, unlawful, and void, and the same should be set aside and annulled, for the following reasons, to wit: (a) That by and through the malconduct of the said judges of election in said Pocatello precinct No. 2, and their wrongful acts, the said judges of election allowed and permitted many persons other than the officers of election, whose names are to the plaintiff unknown, to enter the space inclosed by the guard rail, and reserved for voters, in excess of the number of shelves and compartments provided for voting, and that each and all of said persons so unlawfully within said inclosure were by said judges allowed and permitted to have official ballots in their, and each of their, possession, and were permitted and allowed by said judges to discuss the various candidates for the various offices, and to discuss the manner of voting said ballots. (b) That the said judges of election in said Pocatello precinct No. 2 wrongfully and unlawfully allowed and permitted numerous persons, whose names are to plaintiff unknown, to enter the said inclosed space reserved for the voters, and to procure official ballots, and then allowed and permitted them to leave the said inclosed space, and the building in which said election was held, and to take the official ballots with them from said building, without voting. (c) That the said election judges in said Pocatello precinct No. 2 wrongfully and unlawfully allowed and permitted many persons, whose names are to plaintiff unknown, at the same time to mark their ballots by placing the official ballot upon the wall of the building, in full view of the spectators, and there marking the same, while many others would retire behind the shelves or compartments prepared for voting, and in company of each other would mark and prepare their ballots. (d) That in many instances the judges would permit more than one person to enter the same booth or voting compartment and prepare and mark their ballots together. The names of said parties are unknown to plaintiff. (e) That the said judges allowed and permitted many persons, whose names are to plaintiff unknown, to visit from one...