Brown v. McCollum

• Decision Date: 16 January 1889
• Citation: 41 N.W. 197,76 Iowa 479
• Parties: BROWN v. MCCOLLUM.
• Court: Iowa Supreme Court

76 Iowa 479

41 N.W. 197

BROWN

v.MCCOLLUM.

Supreme Court of Iowa.

Jan. 16, 1889.

Appeal from district court, Wright county; S. M. WEAVER, Judge.

At the general election in the year 1887 the plaintiff and the defendant were opposing candidates for the office of superintendent of schools for Wright county. The board of canvassers for said county declared the defendant to be the successful candidate, having received more votes for the office than the plaintiff. The plaintiff filed a statement of intention to contest the election, and notice thereof was issued and served upon the defendant. The court of contest was organized, and a hearing was had, which resulted in declaring that the plaintiff was legally elected to the office. From this order the defendant appealed to the district court, where a trial was had by a jury, and a verdict was returned and judgment rendered for the plaintiff. Defendant appeals.Nagle & Birdsall, for appellant.

A. R. Ladd and F. W. Pillsbury, for appellee.

ROTHROCK, J., ( after stating the facts as above.)

1. It is insisted by counsel for appellant that the plaintiff has no right to make the contest, because she is a woman, and not an elector. It is provided by section 697 of the Code that the written statement of intention to contest an election shall set forth “the name of the contestant, and that he is an elector of the county.” He is also required to file a bond conditioned to pay costs in case his contest shall fail. The statement of contest, as made by the plaintiff, sets forth that she is an elector of the county. This is not the fact. She is a woman, and was not entitled to vote at a general election. But by section 1, c. 136, Laws 16th Gen. Assem., it is provided “that no person shall be deemed ineligible, by reason of sex, to any school office in the state of Iowa;” and section 2 of the act provides that “no person who may have been or shall be elected or appointed to the office of county superintendent of common schools, or school director, in the state of Iowa, shall be deprived of office by reason of sex.” If the position of appellant be sound, a woman may lawfully be elected to the office, but she cannot assert the right to hold the office by means of the contest provided by law, because she is not an elector of the county. Section 695, which provides for the contest, was enacted when it was supposed that males were alone entitled to an election to office, and the qualification was that the person elected should be an elector of the county. It was essential, therefore, that the person making the contest should be an elector; for otherwise he would have no right to contest. The requirement that it must be set forth that the contestant is an elector of the county, is manifestly for the purpose of showing that he is eligible to the office, and entitled to make a contest for it. The enactment of the statute above cited, making women eligible to the office, should therefore be held to be a repeal by implication of so much of the statute before that time in force as required the technical statement that the contestant is an elector. The true inquiry should be, is the contestant eligible to the office? It is no answer to this position to say that the plaintiff should be required to assert her right to the office by quo warranto or some other proceeding. The legislative intent was to place the two cases on an equality, so far as the right to hold school offices was involved.

2. The plaintiff amended her grounds of contest after the 20 days within which she was required by section 697 of the Code to file the written statement of contest. It is claimed that because that section of the law provides that the statement shall set forth the “particular causes of contest,” there can be no amendment including other causes. This position is not tenable. The statute provides that the proceedings shall be assimilated to those in an action, so far as practicable, and that the court of contest shall have all the powers of the district court necessary to the right hearing and determination of the matter, and that the statement shall not be dismissed for want of form, and that if any of the causes are held insufficient they may be amended. Code, §§ 702, 705. These provisions of the law plainly imply that the 20 days within which the statement must be filed does not operate as a statute of limitations, so as to present any amendment the plaintiff may think proper to make.

3. One of the grounds of contest was that illegal votes were cast at the election. The jury found that there were two illegal votes, one of which was cast for the defendant. The person who cast the vote was one Robertson. It is so plain that he did not have the required residence in the county to be a lawful voter that we must omit a discussion of that question. The jury also found that no illegal vote was cast for the plaintiff. This finding of the jury cannot be disturbed, and we may say generally that we find no error in any of the rulings of the court upon the question of illegal votes.

4. The real question in the case arises upon 25 ballots which were found among those cast at the election. It was stipulated on the trial that, excluding the 25 contested ballots, there was cast at said election for said office 971 votes for J. R. McCollum, the incumbent, and 971 votes for Ella S. Brown, the contestant. The jury did not find a general verdict. They answered certain special interrogatories submitted to them by the court at the request of the defendant. By these answers they counted or allowed 11 of the contested ballots to the incumbent, and 12 to the contestant, and rejected two as having been cast for neither of the parties. The result (counting out the illegal vote cast by Robertson for the incumbent) was the election of the plaintiff by two majority. The 25 ballots in dispute were all printed. They contained the names of candidates for all the state and county offices voted for at that election. The name of the plaintiff was printed on 15 of the ballots as the candidate for superintendent of schools, and the name of the defendant was printed on 10 of the ballots for the same office. The contest arises over the erasure of the...