Dunagan v. Town of Red Rock

• Decision Date: 16 May 1916
• Docket Number: Case Number: 7292
• Citation: 58 Okla. 218,1916 OK 545,158 P. 1170
• Parties: DUNAGAN et al. v. TOWN OF RED ROCK et al.
• Court: Oklahoma Supreme Court

1916 OK 545

158 P. 1170

58 Okla. 218

DUNAGAN et al. v. TOWN OF RED ROCK et al.

Case Number: 7292

Supreme Court of Oklahoma

Decided: May 16, 1916

Syllabus

¶0 1. ELECTIONS--Contests--Burden of Proof. Where an election is held by duly appointed officers, the presumption is that the votes received and counted by them are legal, and the burden is on the party attacking the same to show their illegality.

2. SAME. Where it is sought to review the validity of an election on the ground of illegal voting, those seeking to overcome the result as declared by the election officers have the burden of proving, not only that illegal votes were cast in sufficient number to change the result, but by whom and for whom, or for what issue or question submitted, such votes were cast.

3. SAME--Evidence. Evidence tending to show that certain voters were reputed as favorable to a particular proposition voted upon at a special local election, and that one of them, the editor of a local newspaper, throughout the columns of his paper supported said proposition, is incompetent to prove how said voters in fact voted.

4. CONSTITUTIONAL LAW--Self-Executing Provisions--Municipal Indebtedness--Constitutional Limitation. Section 27, art. 10, of the Constitution, is a self-executing grant of power to the qualified property taxpaying voters of a city or town voting at an election held for that purpose, by a majority vote, to become indebted in a larger amount than that specified in section 26, art. 10, of the Constitution, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city.

5. MUNICIPAL CORPORATIONS--Indebtedness--Limitation--"Public Utility." A public waterworks system, to be owned exclusively by an incorporated city or town, is a "public utility" within the meaning of the term as used in section 27, art. 10, of the Constitution.

Error from District Court, Noble County; W. M. Bowles, Judge.

Suit by R. N. Dunagan and others, taxpayers of the incorporated town of Red Rock, against the Town of Red Rock and others, to enjoin the execution, issuance, and delivery of $ 22,000 in municipal bonds, voted at a special election for waterworks purposes. From a judgment for defendants, plaintiffs bring error. Affirmed.

W. E. Rice, L. B. Robinson, and Henry S. Johnston, for plaintiffs in error.

P. W. Cress, for defendants in error.

SHARP, J.

¶1 The errors assigned and relied upon for a reversal are that the court erred in its finding and decision that E. L. Hubbard and Clyde Cady were qualified property taxpaying electors at the town election; and that the election was illegal and void, for that all but qualified property taxpaying voters were barred from voting thereat; and that on account of said errors the court erred in overruling plaintiffs' motion for a new trial.

¶2 At the election the vote on the bond issue, as canvassed by the election officers, stood 29 votes for and 28 votes against the proposition. It is urged that, neither Hubbard nor Cady being at the time of the election "qualified property taxpaying voters of such town," the proposition involving the issuance of said bonds failed to secure a majority of the votes cast. But counsel in their zeal have overlooked the fact that the record does not disclose that either of these voters voted in favor of the bond issue, and for aught that appears, their ballots may have been cast against the proposition. To warrant setting aside the election, it must affirmatively appear that these votes, if illegal, were cast in favor of the issuance of the bonds. The mere circumstance that improper Votes were received is not, of itself, sufficient to vitiate the election. It is not enough to say that illegal votes were cast; it must be shown that a sufficient number of such votes were cast for the successful issue or proposition to change the results. Tarbox v. Sughrue, 36 Kan. 225, 12 P. 935; People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141; Judkins v. Hill, 50 N.H. 140; Skain v. Milward, 138 Ky. 200, 127 S.W. 773; Stephens v. Nacey, 49 Mont. 230, 141 P. 649; Ex parte Murphy, 7 Cow. (N.Y.) 153. When an elector is permitted to deposit his ballot, the presumption is in favor of the legality of the vote, and the burden is on the attacking party to show a lack of qualification in such elector. Snyder v. Blake, 35 Okla. 294, 129 P. 34; Ledbetter v. Kimsey, 38 Okla. 671, 134 P. 868; Storm v. Parman, 43 Okla. 495, 143 P. 38, 143 P. 38; Gumm v. Hubbard, 97 Mo. 311, 11 S.W. 61, 10 Am. St. Rep. 312; McCrary on Elections (4th Ed.), sec. 466a. Where an election is brought under review, on the ground of illegal voting, those attacking the election have the burden, not only of proving that illegal votes in sufficient number to change the result were cast, but they must show by whom and for whom they were cast. Harris v. Palmer, 25 Okla. 770, 108 P. 385; Tazwell v. Davis, 64 Ore. 325, 130 P. 400; Lippincott v. Felton, 61 N.J.L. 291, 39 A. 646; Blake v. Hagon, 57 Minn. 45, 58 N.W. 867; The Law of Elections, Paine, secs. 510-513.

¶3 Both Hubbard and Cady testified as witnesses for the plaintiffs below, and it does not appear that any claim was made by them, or objection offered, respecting their right to testify concerning their vote. Neither does it appear that their right to vote was challenged or questioned until after the result of the election became known. That the Red Rock Record, of which Hubbard was the editor, through its columns favored the issuance of the waterworks bonds is no evidence whatever that Hubbard voted in favor of the bond issue. Elections will not be overturned and the will of the people defeated by such character of incompetent testimony. There was no reasonable effort made by the plaintiffs to show how either Hubbard or Cady voted; and, even though they were reported as favorable to the proposition, we will not indulge the presumption that they in fact voted for it, when to do so would defeat the declared result of an election, otherwise fairly and legally conducted.

¶4 There is little difficulty in meeting the objection that none but qualified property taxpaying voters were permitted to take part at such special election. The issuance of the bonds in the sum of $ 22,000 was to provide funds for the purpose of constructing and equipping a waterworks system for the town of Red Rock, to be owned and controlled exclusively by said town. The position of counsel for plaintiffs in error appears to be that, under the authority of Faulk v. Board of County Commissioners, 40 Okla. 705, 140 P. 777, the proposition of the issuance of the waterworks bonds should have been submitted to all the electors of...