Coe v. State Election Bd.
| Decision Date | 04 August 1950 |
| Docket Number | No. 34789,34789 |
| Citation | 221 P.2d 774,203 Okla. 356 |
| Parties | COE v. STATE ELECTION BOARD et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. 26 O.S.1941 § 391 provides a recount of votes cast in all primary elections for nomination to county, district and state offices upon the condition that a candidate failing to receive the highest number of votes cast file with the secretary of the election board whose duty it is to canvass the returns in the race wherein the recount is sought, within the time prescribed, his or her challenge of the correctness of the announced results of said primary election in the form of an application requesting a recount of the ballots as to designated precincts within the boundaries of the county, district or state, as the case may be, and depositing $250 in cash for each county or portion thereof.
2. When the foregoing conditions are met it becomes the mandatory duty of said election board to order the recount and proceed with same as provided by Section 391, supra.
3. Section 57, art. V of the Oklahoma State Constitution, is not to be construed in such a manner as to hamper or unreasonably restrict the Legislature in the performance of its duty. The title limits the scope of an act but it is not essential that every detail in the body of the act be specifically mentioned therein.
4. Record Examined and Held: that the application filed meets the requirements and conditions imposed by law and entitles applicant to a recount as requested.
Mac A. Williamson, Attorney General, William W. Cornish, McAlester, George F. Short, Oklahoma City, Bill Logan, Lawton, Oklahoma, Edward M. Box, Oklahoma City, for defendants.
Mart Brown, W. T. Brunson, Rex H. Holden, Coleman Hayes, all of Oklahoma City, for plaintiff.
William O. Coe and Johnson Murray were the candidates for the Democratic nomination for Governor in the run-off primary held July 25, 1950. According to the official tabulation of the returns to the State Election Board Murray received a majority of the votes cast throughout the state at said election. Coe within the time prescribed by law filed his application for recount of all the ballots cast in all the precincts in the state and deposited $19,250 in cash with the State Election Board, being $250 per county, the amount required by law.
In said application for recount Coe challenged the correctness of the announced results of said run-off primary election stating specifically that a recount will disclose a different result from that which now appears, showing him to have a majority of the votes cast, and requesting the State Election Board to order a recount of all ballots cast for said office at said primary election.
Hearing was had by the State Election Board on said application and same was denied by the Board on the ground and for the reason that, as stated by it, there is 'no valid statute or law in the State of Oklahoma providing for a recount of votes cast in a run-off primary.'
Immediately thereafter and on the same day Coe filed his petition for writ of mandamus in this Court setting forth essentially the facts hereinbefore detailed praying that this Court issue a writ of mandamus directing the members of the State Election Board to forthwith order a recount as prayed for by him and prohibiting said Board from issuing a certificate of nomination to Johnston Murray pending said recount.
The right to a recount of ballots cast at an election did not exist at common law. The grant of the right lies within the discretion of the Legislature. Its grant of the right on conditions prescribed by it is exclusive. The right granted can be exercised only upon compliance with the conditions prescribed and the conditions prescribed may vary as between general primaries to determine nominees of the parties and general elections.
Section 3 of Senate Bill No. 139 of the Session Laws of 1931, 26 O.S.1941 § 391, provides:
The section also provides that no certificate of nomination shall be issued by the county election board before Thursday noon nor by the State Election Board before Saturday noon next following 'any primary election.' It also provides for the exact procedure to be followed in effecting service of notice of contest in case of application for recount of ballots cast in the county, district or state races and makes exact provision for method of conducting recounts in each instance. The section also provides: 'If no content shall be filed by Thursday noon next following the primary elections, as to county officers, and by Saturday noon next following the primary election as to State or district officers, as herein provided, the county election board, as to county officers, and the State Election Board, as to State and district officers, shall declare the result of such election and shall issue certificates of nomination to the successful party as provided by law, * * *.'
It further provides:
'* * *, that in contest for party nomination for district or State offices, where a recount of votes in any county shall be required, the State Election Board shall have the right and authority to refer such contest to the county election board of such county involved, * * *.'
'And upon filing of contests with the State Election Board, the Secretary shall notify the members of the board thereof, and such board shall at once assemble on the day therein named and proceed with the hearing or other disposition of such contest, as hereinbefore provided, * * *.'
In view of the hereinbefore referred to provisions of Section 391, supra, we hold that 26 O.S.1941 § 391 provides for recount of the ballots cast in a primary election for nomination for state office, sets out the essential requirements and prescribes the procedure therefor.
Our conclusion that said Senate Bill No. 139 applies alike to state, district and county offices is supported by our former decision in Otjen v. Kerr, 191 Okl. 628, 136 P.2d 411.
It is contended that other rules of Otjen v. Kerr, supra, are applicable here, but we point out that that decision concerned the contest of a general election as distinguished from the recount of a primary election. In those instances the applicable statutory provisions are substantially different. Therefore in its general aspects, the decision in Otjen v. Kerr, supra, has no application to the situation before us in this case.
The only condition prescribed by the Legislature for recount of votes cast in a primary election is that contained in paragraph 3 of Section 391 quoted above. That condition is the filing of a challenge of the correctness of...
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