Fugate v. Mayor and City Council of Town of Buffalo

• Decision Date: 22 December 1959
• Docket Number: No. 2930,2930
• Parties: Claude FUGATE, Orange Taylor, O. C. Laurence, S. H. Patterson, and Henry Laurie, Appellants (Plaintiffs below), v. MAYOR AND CITY COUNCIL OF TOWN OF City of BUFFALO, Wyoming, a municipal corporation, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 76

348 P.2d 76

97 A.L.R.2d 243

Claude FUGATE, Orange Taylor, O. C. Laurence, S. H. Patterson, and Henry Laurie, Appellants (Plaintiffs below), v. MAYOR AND CITY COUNCIL OF TOWN OF City of BUFFALO, Wyoming, a municipal corporation, Appellees (Defendants below).

No. 2930.

Supreme Court of Wyoming.

Dec. 22, 1959.

Addendum Jan. 12, 1960.

William C. Holland, Buffalo, and Ernest Wilkerson, Casper, for appellants.

Burton S. Hill, Robert A. Hill and William J. Kirven, Buffalo, for appellees.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This case involves an appeal from a summary judgment in an action in which the validity of a bond election in the Town of Buffalo was attacked, the summary judgment holding that the majority of the electors voted in favor of the issuance of the bonds.

The Mayor and Council of the Town of Buffalo, Wyoming, submitted to the voters of the town at a special election held August 19, 1958, the question as to whether or not bonds of the town should be issued in the sum of $180,000 for the purpose of constructing improvements and making extensions of the waterworks system of the town. The election was held on the same day on which a primary election was held. When the votes were canvassed it was found that on the face of the returns non-property owners voted in favor of the bonds by a vote of 158 to 90 and that property owners voted in favor of the bonds by a vote of 471 to 452, making a majority of nineteen of the property owners of the town. No question is raised herein as to the vote of the non-property owners and that matter will not again be mentioned.

On September 20, 1958, plaintiffs Claude Fugate, Orange Taylor, O. C. Laurence, S. H. Patterson and Henry Laurie, citizens and taxpayers of the Town of Buffalo, filed a complaint alleging in substance that illegal votes were cast in the election. Specifically, it was alleged that some twenty illegal ballots, including nineteen absentee ballots, were cast in favor of the bonds sufficient to change the result of the election; that in some cases ballots which were cast were not counted by the judges of election but only by the clerks of election after the judges had left; and that the persons casting absentee ballots did not make the proper affidavit required by the statutes. An answer was filed by the defendants and appellees herein, substantially denying the allegations of the plaintiffs except the formal parts thereof. Pursuant to a motion, three impartial persons were appointed as masters to examine the various ballots cast in the election and to make a report of their findings to the court. That report was made and filed on February 24, 1959, but no arguments are made in connection with it in the briefs of counsel, nor is a claim made thereunder, so we find it unnecessary to set it out. After a pretrial conference had been held, the parties herein entered into a stipulation of facts, which in substance is as follows:

1. The report of the masters aforementioned may be introduced in evidence subject, however, to the right of either party to submit further evidence tending to amplify, correct or contradict the statistics, allegations, statements or conclusions contained therein. It is not contended herein that this report would have been introduced in evidence if opportunity to do so had been afforded.

2. Four persons, namely Mrs. Etta Burt, Lawrence and Ruth Neyer and Don Christensen, voted as property owners of the town when as a matter of fact they were not at that time property owners. The names of five persons did not appear on the assessment rolls of the town but each of them or their spouses were the owners of real property in the Town of Buffalo at the time of the election. Three persons were the vendees under a recorded contract for a warranty deed and the property covered by such contract was assessed in the names of the vendors and the vendees. The names of two persons did not appear on the assessment rolls, but this was due to a marriage, the property having been assessed under the wife's former name.

3. Nineteen absentee ballots of so-called property owners were voted and cast in the aforesaid election.

a. 'In each instance the affidavit form bears the signature of the elector offering to vote as an absentee voter. In each instance they were signed in the presence of Carl Kaltenbach, City Clerk of Buffalo, Wyoming, but not attested to by him. On Election Day, twelve of these affidavits were attested to by an election official in the absentee voters' respective precincts, but not in the presence of the affiant, and seven were not attested by by anyone.'

b. Seven absentee votes cast in Precinct 4 were not 'examined and cast by the regular election judges between the opening and closing of the polls on the election day in question but such ballots were opened, cast, and counted by the counting clerks after the polls had been closed, and after the regular election judges had left the polling place.'

4. In Precinct 4 the election judges and clerks failed to keep a separate poll book for the special bond election but entered the names of the voters on the primary poll book instead of the regular poll book furnished by the city.

5. In Precincts 3 and 4 no notations were made on the poll lists as to which voter voted by absentee ballot.

6. 'If called upon to testify to the fact, the City Clerk, Carl Kaltenbach, would testify that he did make, furnish and file a list of absentee voters for Precinct No. 3.'

On the same day on which the agreed statement of facts was entered into, namely on May 4, 1959, the defendants and appellees herein filed a motion for a summary judgment reading as follows:

'Comes Now the defendants, by their attorneys, Burton S. Hill, William J. Kirven and Robert A. Hill, and move the Court for Summary Judgment in the above entitled action, upon the grounds and for the following reasons, to-wit:

'1. That under and by virtue of the Agreed Statements of Fact and Stipulation filed herewith, there is no genuine issue as to material facts which supports plaintiffs' claim.

'2. That the witnesses of the plaintiffs, being certain electors in said Special Water Bond Election of the City of Buffalo, Wyoming, held August 19, 1958, would be prevented from rendering testimony as to how they voted at said election, by reason of their Constitutional Immunity therefrom, and the Hearsay Rule of Evidence.'

Thereupon the court rendered the following judgment:

'This matter came on regularly for consideration by the Court May 5, 1959, upon defendants' Motion for Summary Judgment.

'And the Court having read and considered said motion, and reviewed the pleadings filed herein, and having read and considered the briefs of the plaintiffs and defendants, and heard their arguments, finds generally in support of said Motion.

'It Is Therefore Hereby Ordered, Adjudged and Decreed, that defendants' Motion for Summary Judgment in the above entitled action be, and the same hereby is, sustained, and summary judgment granted.

'Done in Open Court this 11th day of May, 1959.'

On June 10, 1959, the plaintiffs and appellants filed their Notice of Appeal and filed a statement of the points on which they intended to rely on appeal as follows:

'1. That absentee ballots were accepted and cast by the election officials in the municipal bond election in question and that such voting of absentee ballots in such a bond election is illegal and contrary to the provisions of the statutes.

'2. That even if such absentee votes were permissible in such an election that the 19 persons casting such absentee votes did so illegally for the reason that the purported affidavits of the property owner's casting such absentee ballots were invalid due to the fact that the affidavit forms were either not attested by any official or were improperly and unlawfully completed and purportedly attested by election officials on the day of election and not in the presence of the person signing the affidavit form, and that furthermore such purported affidavits were not attested in compliance with the ordinance proclaiming said election.

'3. That said election is illegal for the reason that the election officials in Precinct 4, Northeast Buffalo, did not keep a separate poll book for the special bond election showing the names of the voters and the numbering thereof as required by statute.

'4. That the seven absentee votes of property owners cast in Precinct 4, Northeast Buffalo, were illegally cast after the closing of the polls.

'5. That twelve persons illegally cast votes as property owners when they were not the owners or the spouses of owners of real or personal property assessed on the assessment rolls.

'6. That a combination of the votes which were illegally cast by absentee voters and by non-property owners voting property owner ballots was sufficient to change the result of said election.

'7. That the summary judgment entered in said cause was premature and not justified by the facts as disclosed by the record and that said cause should have been permitted to go to trial and that evidence should have been received in order to fully show the facts pertaining to the illegal aspects of said election as above specified and to show the manner in which said illegal voters cast their votes.'

1. At the pretrial conference the court announced the following conclusion of law:

'That duly qualified electors may vote at municipal bond elections, such as in the instant case, by absentee ballot, subject to the requirements of the law with respect to absent voters.'

Counsel for appellees contend that appellants should have voiced an exception or an objection and in the absence thereof the holding of the court was binding. However, they cite no authority and we have found none to support the contention. The action of the court appears to be somewhat like an attempt to limit the issues in the case. In...