Burge v. Tibor
| Decision Date | 04 December 1964 |
| Docket Number | No. 9607,9607 |
| Citation | 397 P.2d 235,88 Idaho 149 |
| Parties | Ray O. BURGE, Petitioner, v. Thomas V. TIBOR, Lydia Doering, Vernafern Barnard, constituting the Recount Judges, Precinct #1, Power County, State of Idaho, and George L. England, H. C. Misenhimer, Homer Kress, constituting the Board of County Commissioners, Power County, State or Idaho, and Allan G. Shepard, Attorney General, State of Idaho, Respondents. |
| Court | Idaho Supreme Court |
William J. Dee, Grangeville, for petitioner.
O. R. Baum, Ben Peterson and John B. Kugler, Pocatello, for respondents elections judges and county commissioners.
Allan G. Shepard, Atty. Gen., and M. Allyn Dingel Jr., Boise, Asst. Atty. Gen., for respondent Allan G. Shepard.
This is an original proceeding brought by petitioner for a writ of mandate to compel the respondents, the recount judges in precinct No. 1 in Power county, the county commissioners of Power county, and the attorney general, to open and count the absentee ballots of two of the electors of that county and precinct.
On or about October 30, 1964, pursuant to application therefor, the auditor of Power county mailed absentee ballots with return envelopes to absentee electors Clara Duncan and Emelie Dormier, who received them on November 2, 1964. After marking them, the electors deposited the ballots in the mail on November 2, 1964, duly registered, for return to the county auditor. The auditor of Power county received the ballots on November 4, 1964, the day following the general election held November 3rd. The ballots were not opened or counted by the election judges.
In the election held November 3, 1964, petitioner was the candidate of the Democratic party for election to the legislature as senator from Power county, and one Vard Meadows was the candidate of the Republican party for the same office.
Following its canvass of the returns of the election, the board of county commissioners certified the vote of Power county, for the office of state senator, as 1032 for Vard Weadows, and 1030 for petitioner.
Petitioner thereafter instituted proceedings for a recount of the ballots in three of the precincts of that county, one of which was precinct No. 1, in which the aforementioned absentees were registered electors. The recount proceedings are now pending, and this proceeding was brought by petitioner for a writ of this court to compel to the opening and counting of the ballots of said absentees in the recount.
The petinent provisions of the applicable statutes are:
'On marking such ballot or ballots such absent or disabled or blind elector shall refold same as therefore folded and shall inclose the same in said offical envelope and seal said envelope securely and mail by registered or certified mail or deliver it in person to the officer who issued same at least one (1) day before the date of such election. * * *' I.C. § 34-1105.
'Between the opening and closing of the polls on such election day the judges of election of such precinct shall open the carrier envelope only, announce the absent or disabled voter's name, and compare the signature upon the application with the signature of the ballot envelope, and in case they find such signatures to correspond and the applicant to be a duly qualified elector of the precinct and that he has not theretofore voted at said election, they shall open the ballot envelope and remove the...
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Jones, In re
...of the qualifications of its members; the courts have no jurisdiction to determine constitutional qualifications.); Burge v. Tibor, 88 Idaho 149, 397 P.2d 235 (1964) (Idaho Constitution makes each house sole judge of election and qualifications of its members.); State ex rel. Acker v. Reeve......
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State ex rel. Turner v. Scott
...on other grounds); State ex rel. Schieck v. Hathaway, 493 P.2d 759 (Wyo.); Culbertson v. Blatt, 194 S.C. 105, 9 S.E.2d 218; Burge v. Tibor, 88 Idaho 149, 397 P.2d 235; People ex rel. Douglas v. Barrett, 370 Ill. 464, 19 N.E.2d 340; Melland v. Johanneson, 160 N.W.2d 107 (N.D.). See also, 81A......
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Nye v. Katsilometes
...a second judge in a proceeding where the Constitution requires the Legislature to sit as the sole arbiter. See Burge v. Tibor, 88 Idaho 149, 154, 397 P.2d 235, 237 (1964). In my view, the Senate's power to assess attorney's fees is well within its constitutionally granted power to adjudicat......
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Nye v. Katsilometes, Docket No. 45917
...becoming a second judge in a proceeding where the Constitution requires the Legislature to sit as the sole arbiter. See Burge v. Tibor, 88 Idaho 149, 154, 397 P.2d 235, 237 (1964). In my view, the Senate’s power to assess attorney’s fees is well within its constitutionally granted power to ......