Chenoweth v. Earhart

• Decision Date: 24 October 1912
• Docket Number: Civil 1256
• Parties: H. K. CHENOWETH, Appellant, v. R. R. EARHART, Appellee
• Court: Arizona Supreme Court

127 P. 748

14 Ariz. 278

H. K. CHENOWETH, Appellant, v. R. R. EARHART, Appellee

Civil No. 1256

Supreme Court of Arizona

October 24, 1912

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. Frank Baxter, Judge. Affirmed.

The facts are stated in the opinion.

Mr. S L. Kingan, for Appellant.

Mr. W A. O'Connor, for Appellee.

OPINION

ROSS, J.

This is a contested election case. From a judgment in favor of the appellee, who was contestee in the lower court, the contestant and appellant appeals. The office involved is that of treasurer of Santa Cruz county. The canvassing board issued its certificate of election to the contestee, and declared and certified therein that the contestee had received 283 votes and the contestant 277 votes for such office. The case turns upon the vote of Mowry precinct. In this precinct 14 votes were cast -- 12 for contestee and 2 for contestant. If the vote of this precinct be rejected, the contestant would have 275 votes, and the contestee would have 271 votes.

It is the contention of the contestant that the vote of Mowry precinct should not be counted for two reasons: (1) Malconduct of the election officers of said precinct; and (2) illegal votes cast at said precinct. The facts, as shown by the pleadings, and the evidence in that connection, are: That the board of supervisors of Santa Cruz county designated the "Consolidated Mining, Smelting & Transportation Company's building" as the place of holding the election at Mowry precinct, and the time as December 12 1911, and caused notices thereof to be given as provided by law. The election was held in the schoolhouse, which is in Mowry precinct. Mowry is a mining camp. At the time of the election the mines were closed down and the buildings and premises were in the charge of a caretaker. The Consolidated Mining, Smelting & Transportation Company was in possession of all the buildings (about 24 in number) as lessee. The company's buildings were a store, office and residence situated centrally and within about 100 feet of each other, and the other buildings, such as are ordinarily had at mining camps, were further removed and scattered around this central group. In front of the building that was used as an office was a painted sign with these words in large letters: "Consolidated Mining, Smelting & Transportation Company." The schoolhouse, by actual measurement, is 930 feet distant from the office building. It is conceded that the schoolhouse, as well as all the other buildings at the mining camp, belonged to the company, except the one occupied by Phelps. The company built the schoolhouse, but had not deeded it to the school district. It was on company ground. It was used for school purposes, dances and sometimes for elections. The company residence had been used twice for holding elections, once, at least, under the same designation by the supervisors as at the December 12, 1911, election.

The contestant insists that the designation "Consolidated Mining, Smelting & Transportation Company's building" as the place for holding the election meant the company residence, or, at least, one of the three buildings -- the office, store, or residence. The contestee urges that the "Consolidated Mining, Smelting & Transportation Company's building" might mean any building owned by or under the control of the company, including the schoolhouse. He contends that there was an ambiguity as to the place meant by the supervisors in their order; and, while the contestant denies that the order was ambiguous, much of his testimony is directed to showing what building the order named.

Whatever may have been the conclusion of the lower court from a reading of the order alone, unaided by extrinsic evidence to arrive at its meaning, the trial court must necessarily have read the order in the light of the evidence introduced, and this court is also bound by the record made in that court. The ambiguity of the order is apparent from the fact that both sides indulged in the introduction of a large amount of testimony from the voters of the precinct showing, in their minds at least, that no definite place was understood by them from the order. The fact that the primary election in October, 1911, was held in the residence building of the company under the same designation did not fix that place in the minds of the voters as the one intended, as is shown by the testimony of the witnesses. The record fails to show that any considerable number who voted December 12th voted at the October primary, or knew where that election was held.

The contestant's first witness, F. J. Miller, said: ". . . There is a building there known as the Consolidated Mining, Smelting & Transporatation Co.'s building, and there are other buildings there -- the store building, the office building, living building, or house where the officers used to live. On the outside of the office, in big letters, they have the name 'Consolidated Mining, Smelting & Transportation Co.' . . . all the buildings belong to the same company, and I think there is one known as the Consolidated Mining, Smelting & Transportation Company Building. There is what is called the office building, where they put up the sign, while right across from it is the store, and close to the store is the residence building, all right together. . . . When I first went into Mowry on the morning of December 12th, and went to the company building, no one was there, and I waited about two hours with the election supplies. There was a man named Krager had a tent near there, and we sat there until about 11:30, and some other men came in, and I asked one, named McPherson, where the election was being held, and he said, 'Down to the schoolhouse.' I had put the place in order, and they all came to vote, I guess. I then took the supplies down to the schoolhouse and asked the inspector of elections why the election was not held where it was advertised. . . . I took this to be the residence, because Mr. Earhart, had the election held there twice before. It is one of the Consolidated Mining, Smelting & Transportation Company's buildings. I do not swear now that the school building is not one of their buildings; I don't know anything about it. I went to the residence building at 7 o'clock on the morning of the 12th, by my time, by myself. . . ."

His next witness, Sam Proudy, said: "As an officer of the election, I went to the company's building -- the office of the company where the sign was, and where I supposed the election was to be held. This is not the residence building; and I did not go to the residence building because I met Mr. Miller at Krager's place, and he said there was nobody at the polls. The building I took to be the polling place was the office building with the name on it."

A. A. Doherty, county assessor of Santa Cruz county, said: "I know several buildings belonging to the Consolidated Mining, Smelting & Transportation Company, and know all the buildings there. One, where the sign is up there, is used as an office; and if anybody made an appointment with me to meet me at the building of the Consolidated Mining, Smelting & Transportation Company, at Mowry, at 3 o'clock tomorrow I would go to that particular office building. . ."

Herbert J. Cunningham said: "From my knowledge of the location of the buildings and the schoolhouse, if I were directed to go to the building of the Consolidated Mining, Smelting & Transporatation Company, I would go to that sign, to that building on which the sign is attached."

Fred Krager said: "There is a sign stuck up there, which says something like 'Consolidated Mining, Smelting & Transportation Co.,' in front of an office. I do not know what the building is known by. It has that kind of a sign on it. There are three or four buildings there; and if I were told to go to the Consolidated Mining, Smelting & Transportation Company building I would go to the store house there, or to the office, or another building there. They are all together. . . . There is a building there with that sign; but I did not go to that building with the sign on, as I had no key for that, nor to the store building. The residence is the one I suppose I had the key to, as there has been some one residing there, and there is bedding there and a bathtub. . . . "

Angel Alvarez said: "I know the camp at Mowry pretty well, and know the buildings there, and know the building there known as the Consolidated Mining, Smelting & Transportation Company building. It is just right there at the store -- where they used to have the store -- close by there. . . ."

On behalf of the contestee, Orton Phelps said: "I was an officer of the election held on December 12th last, and was appointed by the board of supervisors as one of the clerks, but I did not serve. I am familiar with the buildings up there, and I saw the notice -- the call of the supervisors. I remember how it read, but not exactly, and it was a call for an election to be held in the company's building. As an officer of the election, I went that morning, with the other clerk, Mr. Boucher, direct to the schoolhouse and opened it. I went to the schoolhouse because I believed I was fulfilling the law and fulfilling the order of the supervisors in going to the company's building -- the company built it. I was there when they built it. . . ."

S. P Boucher said: "I was an elector at Mowry precinct last election and acted as clerk at the election. Mr. Phelps and I went to the schoolhouse that morning and opened up at 7 o'clock and got a fire going, and it was pretty cold. We waited...