Bd. v. Dill

• Decision Date: 19 April 1910
• Docket Number: Case Number: 1043
• Citation: 26 Okla. 104,1910 OK 103,110 P. 1107
• Parties: BOARD v. DILL.
• Court: Oklahoma Supreme Court

1910 OK 103

110 P. 1107

26 Okla. 104

BOARD v. DILL.

Case Number: 1043

Supreme Court of Oklahoma

Decided: April 19, 1910

Syllabus

¶0 1. APPEAL AND ERROR -- Case-Made -- Sufficiency. Where a record constituting a purported case-made is filed in this court in two parts, marked respectively "Part 1," and "Part 2," each bearing the title of the case, filed on the same day under the same number by the clerk of this court, and Part 1, to which is attached the petition in error and the certificate of the trial judge signing and settling the same, contains unmistakable reference to Part 2, the same will be considered as one record.

2. APPEAL AND ERROR--Findings of Court Unsupported by Evidence. In a case tried to the court where on request findings of fact are made, and it is contended in this court that there is no evidence to sustain certain material findings, but that all of the evidence negatived the same, this court will on proper assignments examine the record for the purpose of ascertaining that fact, and where such contention is sustained by the record, such finding will be set aside.

3. ELECTIONS-- Secrecy of Ballot -- Mandatory Provisions. The primary purpose and object of the Australian Ballot election law is to secure the independence of the elector by requiring of him the exercise of his right of franchise in absolute secrecy, and statutes, mandatory in their character, designed to accomplish this end, are mandatory on both the officials and the electors.

4. SAME- -Rejection of Exposed Ballots. Section 44 of Chapter 33, par. 2949, Wilson's Revised & Annotated Statutes of Oklahoma, 1903, providing that "any elector who declares that by reason of physical disability or inability to read the English language, he is unable to mark his ballot, may declare his choice of candidates to the poll clerks, who in the presence of the elector and in the presence of each other shall prepare the ballots," is mandatory as to such clerks, the electors, and all others, and ballots of electors prepared with the assistance of any other person, are invalid and fall within the provisions of sec. 5, chap. 17, Session Laws of Oklahoma, 1905, which provides for the exclusion of any exposed ballot except when made out by the poll clerks as provided above.

5. SAME. Where electors voluntarily permit other persons than the authorized or acting poll clerks to assist them in the preparation of their ballots, the said ballots will be held to be intentionally exposed and will be rejected.

Error from District Court, Okfuskee County; Frank M. Bailey, Judge.

Action by Ralph A. Dill against Charles W. Board. Judgment for plaintiff, and defendant brings error. Reversed.

Crump, Rogers & Harris, Bailey & Wyand, and J. B. Patterson, for plaintiff in error.--On question of exposure of ballots and mandatory statutes: Rhodes v. Driver, 64 S.W. 273; Kirkpatrick v. Board of Canvassers, 44 S. E. 465; Mouck v. Brown, 81 N. W. 313; Attorney General v. May, 99 Mich. 538; People v. Board of Canvassers, 129 N. Y. 395; People v. Board of Supervisors, 135 N. Y. 522; Phelan v. Walsh, 62 Conn. 260; Baxter v. Ellis, 111 N. C. 124; Spurgin v. Thompson, 37 Neb. 39; Bechtel v. Albin, 134 Ind. 193; In re Ballot Marks (R. I.) 27 Atl. 608; Rampendahl v. Crump, 24 Okla. 873; Incorporated Town of Westville v. Town of Stillwell, 24 Okla. 892.

J. H. Burford and F. B. Burford, for defendant in error.--On conclusiveness of findings of trial court: Gibbs v. Gibbs, 18 Kan. 419; Darlington, etc., Co. v. Lobsitz, 4 Okla. 355; Electric Light Co. v. Jennison, 5 Okla. 759; Holcomb v. Dowell, 15 Kan. 378; Briggs v. Egan, 17 Kan. 591; Hunter Realty Co. v. Spencer, 22 Okla. 155; Eager v. Seeds, 21 Okla. 524. On question of mandatory provisions in election statutes: Barnes v. Supervisors, 51 Miss. 305; State v. Russell, 34 Neb. 116; Marion v. Territory, 1 Okla. 240; Jones v. State ex rel., 153 Ind. 440; Halls v. Schvenecke, 128 Mo. 661; State v. Gay, 59 Minn. 6; Hanscomb v. State, 10 Tex. Civ. App. 638; Moore v. Sharpe (Tenn.) 41 S.W. 587; In re Walker, 3 Luzerne Leg. Reg. (Pa.) 130; Hope v. Flentge, 140 Mo. 390; Harris v. Palmer, 25 Okla. 770; Petit v. Tenell, 113 Ky. 777; Rexroth v. Schein, 206 Ill. 80; Hayes v. Kirkwood, 136 Cal. 393; Paine, Elections, sec. 487; McCrary, Elections, sec. 200; Patton v. Watkins, 131 Ala. 387; Atkinson v. Lorbeer, 111 Cal. 419; McClelland v. Erwin, 16 Okla. 612; Robertson v. Hubler, 11 Okla. 297; Town of Grove v. Haskell, 24 Okla. 707; Tarbox v. Sughrue (Kan.) 12 P. 935.

DUNN, C. J.

¶1 This case presents error from the district court of Okfuskee county, wherein Ralph A. Dill was plaintiff, and Charles W. Board was defendant. The object of the action was to determine who was elected register of deeds of that county in the election held September 17, 1907. The controversy has been by the parties narrowed down to the vote of Van Zandt precinct, one of the voting places in that county. In this precinct, according to the returns made by the election board, the plaintiff Dill received 403 votes, and the defendant Board, 14. This precinct was not canvassed by the board, of county commissioners, and as a consequence the vote acknowledged and declared as between these parties in the county was Dill, 760, Board, 1137. If Van Zandt precinct shall be received and counted, it will give Dill 1,163, and will give Board 1,151, making a difference of 12 votes in favor of Dill. The trial court held that the canvassing board was in error in rejecting the returns from this precinct and that the same should be canvassed, and it is to reverse this holding that the cause has been brought to this court.

¶2 Two grounds are relied on by counsel for plaintiff in error for a reversal. The first is that the board organized to hold the election in this precinct was neither a de jure nor a de facto board, and that those who occupied the places of election officers were usurpers without color of office or authority. An examination of the findings of the court and the record in our judgment do not sustain this claim, but from the view we take of the entire case we do not deem it essential to pass on it, and we will, for the purpose of this decision, assume the board to have been legal.

¶3 The second ground for reversal is raised by the finding by the court as follows:

"The court further finds that judges and clerks indiscriminately directed voters in the preparation of their ballots and that a majority of the votes cast were prepared under the direction of judges and clerks, one judge or one clerk assisting the electors.

"The court further finds that in such Van Zandt precinct the plaintiff received 403 legal votes, and the defendant received 14 legal votes, and that in the county of Okfuskee and state of Oklahoma, plaintiff received in said election, 1,163 votes and defendant received 1,151 votes, and judgment will be rendered for the plaintiff."

¶4 It is counsels' contention that no one except the clerks of the election board can legally assist any voter to prepare his ballot, and that the ballot of any elector which is prepared with the assistance of the judges or any one else than the clerks is void and should be excluded from the count as the elector, by permitting a judge to thus assist him in the preparation of his ballot instead of a clerk, intentionally exposes the same.

¶5 It will be noted that the finding of the court upon the question of the number of voters assisted by the judges or by the clerks contains no statement as to the number prepared by each. Preliminary to the consideration of the question upon its merits, however, two propositions are raised and insisted upon by counsel for defendant in error which require notice. The first is that the evidence taken and considered by the trial court on the hearing of the case has not been properly brought to this court and is not before us. It appears that the instant case was one of several election contest cases which were tried in that county under the same issues and facts as are here involved. One of these, Ball v. McCulley, had been tried and the evidence preserved and at the inception of this case counsel for both parties entered into the following several stipulations:

"It is hereby stipulated by and between the parties to the above entitled action that the parties to this action are each duly qualified to hold the office of register of deeds of said county, and that the evidence as shown by the stenographer's transcript in the case of H. M. Ball v. Wm. N. McCulley, Case No. 5, pending in said court shall be accepted and considered as the evidence in this case, and it is agreed that the parties hereto received the following vote in said county, exclusive of Van Zandt precinct, to wit: Dill, 760 votes; Board, 1,137 votes, and that the vote for said parties in said Van Zandt precinct as shown by the certified returns from said precinct is as follows: for contestant, 406 votes, and for contestee, 10 votes, and the right to have said votes counted from Van Zandt precinct shall be determined from the evidence taken in the said case of H. M. Ball v. Wm. N. McCulley.

"(Signed) Attorneys for respective parties.

"It is hereby stipulated and agreed by and between the parties hereto, that the evidence taken in the case of H. M. Ball v. Wm. N. McCulley may be used in the above entitled case, as to the evidence in said case, but each party reserves the right to introduce such other testimony as he may desire in addition to the testimony herein agreed upon.

"(Signed) Attorneys for respective parties."

¶6 Under the foregoing stipulations the trial of this cause was had upon the evidence as shown by the stenographer's transcript in the case of Ball v. McCulley, which constitutes a typewritten record of evidence of nearly 500 pages. On the occasion of the filing of the petition in error and case- made in this court all of the record made in the instant case was compiled under one binding, while the record in the case of...