City of Blackwell v. City of Newkirk

• Decision Date: 30 January 1912
• Docket Number: Case Number: 570
• Citation: 1912 OK 117,121 P. 260,31 Okla. 304
• Parties: CITY OF BLACKWELL v. CITY OF NEWKIRK et al.
• Court: Oklahoma Supreme Court

1912 OK 117

121 P. 260

31 Okla. 304

CITY OF BLACKWELL v. CITY OF NEWKIRK et al.

Case Number: 570

Supreme Court of Oklahoma

Decided: January 30, 1912

Syllabus

¶0 1. COUNTIES--County Seat--Location--Submission of Question to Popular Vote. The fact that a partisan of one of two cities that were candidates for the location of a county seat had, on the day of election, at his place of business, a block from the polling place in one precinct, whisky, which he dispensed freely, promiscuously, and indiscriminately to some of the voters after they had voted, and to others who were not voters, where it is not shown that such whisky had been promised to the voters before casting their ballot, for the purpose of influencing them in voting, and some of the voters did not receive whisky, is not sufficient cause to require, in a contest of said election, the entire vote cast at said precinct to be rejected.

2. SAME--County Seat--Location--Submission of Question to Popular Vote--"Swear." At a county seat election, voters at several precincts, on entering the polling places, were asked by the clerk the questions necessary to enable the clerk to fill out the blanks in the voter's affidavit required by section 12, art. 4, c. 31, p. 382, Sess. Laws 1907-08. The voter having answered fully, the clerk filled out the blank in the affidavit; whereupon the voter, in the presence of the special election commissioner, signed the affidavit, after which the special election commissioner, who is authorized by law to administer oaths to voters at such elections, explained the affidavit to the voter, and asked if he understood same to be his affidavit of qualification as a voter, or asked if he understood he was signing an affidavit that he was a legally qualified voter, to which the voter answered, "Yes," and the election commissioner thereupon signed his jurat upon the affidavit, and the voter was given a ballot and permitted to vote. Held that, by reason of section 2182, Comp. Laws 1909, said acts on the part of the voter and of the election officers constituted a swearing by the voter to said affidavit, as required of him by said section 12, supra. Following Inc. Town of Checotah v. Inc. Town of Eufaula, infra, 119 P. 1014.

3. SAME--County Seat--Location--Geographical Center of County. The Chilocco Industrial School reservation constitutes part of the geographical territory of Kay county, and the Secretary of State, in determining the geographical center of said county, did not err in considering said reservation as a part of the county.

4. SAME--County Seat--Location--Geographical Center of County. To ascertain the distance between the geographical center of a county and the nearest corporate limits of a city, as authorized by section 6, art 17, Constitution, the measurement is to be made upon a straight line between said points, and not by the usual traveled way.

5. MUNICIPAL CORPORATIONS--Extent of Territory--Proceedings for Annexation of Territory--Collateral Attack. Where a city of the first class, acting under section 458, Wilson's Rev. & Ann. St., enacted an ordinance annexing certain additions to its corporate limits, and continuously for about nine years thereafter exercised municipal authority over the annexed territory, levied and collected taxes thereon, constructed public improvements thereon, and did all other things incidental to maintaining a municipal government thereon, and the validity of such annexation has never been questioned by the state, a rival city, in a proceeding to contest a county seat election, cannot collaterally attack the validity of the ordinance or of the proceedings by which the additions were annexed to the municipal corporate limits.

6. COUNTIES--County Seat--Location--Geographical Center. The fact that a certificate of the Secretary of State, showing the geographical center of a county, executed by virtue of section 6, art. 17, Constitution, was issued before an election was held under said section for determining the permanent location of a county seat does not render such certificate invalid.

7. SAME--County Seat--Location--Geographical Center. Section 6, art. 17, Constitution, does not require that the distance between the geographical center of the county and the nearest corporate limits of any city or town shall be determined by measurement made by the Secretary of State, but such measurement may be made by other persons, whose testimony is competent to establish such distance.

Original action by the City of Blackwell against the City of Newkirk and others to contest a county seat election. Report of referee in favor of defendants affirmed.

John S. Burger, City Atty., J. L. Pancoast, and Dale, Bierer & Hegler, for plaintiff.

W. A. Ledbetter, G. A. Chappell, City Atty., C. L. Pinkham, J. F. King, and Charles J. West, Atty. Gen., for defendants.

HAYES, J.

¶1 In pursuance of a provision of section 6, art. 17, Constitution, and by virtue of a call and order of the Governor, an election was held in Kay county on the 2d day of December, 1908, at which the city of Blackwell and the city of Newkirk were voted upon as candidates for the permanent county seat of Kay county. After the returns of said election had been made to the Governor of the state, as by law provided, the Governor canvassed the votes, and declared that it was shown by said returns that the city of Blackwell received 2,656 votes and the city of Newkirk received 2,707 votes for the permanent county seat of Kay county, making a total vote cast at said county seat election of 5.363. Thereafter, within the time allowed by law, plaintiff, the city of Blackwell, filed in this court its petition, and later its amended petition, contesting said election.

¶2 In the amended petition, two causes of action are attempted to be alleged. The first cause of action alleges various grounds of contest, set out in separately numbered paragraphs; the material ones of which are as follows: First, that 1,221 illegal votes were cast at said election, and that the illegality thereof consists in that each of the 1,221 voters casting said votes received a ballot and cast his vote at said election without having been sworn to the affidavit prescribed and required by section 12 of article 4 of chapter 31 of the Sess. Laws 1907-08; that said 1,221 illegal votes were cast in the following township precincts: North Vernon township, 89 votes; Cross township, 172 votes; Kildare township, 150 votes; Newkirk township, 202 votes; Waltham township, 195 votes; Longwood township, 108 votes; Beaver township, 108 votes; Dale township, 210 votes; that of the said 1,221 alleged illegal votes, 1,134 were cast for the city of Newkirk and the other 87 illegal votes for plaintiff; that said illegal votes, respectively, should be deducted from the number found and declared by the Governor to have been received by the city of Newkirk and plaintiff, which would leave 4,142 as the total number of legal votes cast at said election, of which the city of Blackwell received 2,569 and the city of Newkirk 1,573, making a majority for the city of Blackwell of 996 votes of the total number of votes cast, and 83 votes more than 60 per cent. of all the votes cast at said election.

¶3 In the second paragraph, it alleges that there was also illegality in the votes cast at the election in Beaver township, in that at said election one Bill Cullison, who was a partisan of the city of Newkirk, was permitted by the election board in said township to establish and keep intoxicating liquors within 50 feet of the polling places, and was allowed to furnish unlawfully intoxicating liquors to persons voting at said election, prior to their voting, with intent on his part to influence said voters in favor of Newkirk; and that he did, by the use of liquors, influence many of the votes cast in said precinct. The exact number of votes so influenced, and by whom cast, plaintiff declares itself unable to allege in its petition.

¶4 By a third paragraph, it is alleged, as a second ground of attack on some votes cast in Newkirk township, that twenty of said votes cast in that precinct for Newkirk were illegal and should not have been counted, because the voters casting the same were persons residing in what is known as the "Chilocco Indian Industrial School Reservation," located in the northern part of said county; the same being a tract of land reserved by executive order, dated July 12, 1884, for use of and in connection with the Chilocco Industrial School, in the Indian Territory.

¶5 By a fourth paragraph, it is alleged that an unlawful agreement was entered into between two of the county commissioners of Kay county and the electors of Ponca City, in said county; that said commissioners were to build a bridge across the Arkansas river, near Ponca City, in consideration of which the electors of Ponca City were to vote for the city of Newkirk at the county seat election; and that by reason of said promise and agreement the voters in the various wards of Ponca City, in the number of 425, voting for the city of Newkirk, were unlawfully corrupted and influenced to vote for the city of Newkirk.

¶6 As a second cause of action, plaintiff alleges that the Secretary of State had theretofore attempted to determine the geographical center of Kay county and the distance by measurements from said center to the nearest corporate limits of the city of Newkirk as the same existed on the 21st day of January, 1907; and that on the 17th day of June, 1908, he made his certificate and attached thereto a plat of said county, a copy of which is filed with the petition as an exhibit thereto. As alleged in the petition, this certificate of the Secretary of State shows the geographical center of Kay county to be at a point which makes the nearest corporate limits of the city of Newkirk seventeen-hundredths of a mile more than six miles from said geographical center. Plaintiff alleges that afterwards the Secretary of State made...