Gardner v. Scott
| Decision Date | 20 November 1951 |
| Docket Number | No. 34796,34796 |
| Citation | 237 P.2d 863,205 Okla. 333 |
| Parties | GARDNER v. SCOTT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A valid election is held, and the one receiving the highest number of votes cast is entitled to the office, where ballots were prepared and furnished by the county superintendent of schools for the election of one member of an independent school district for a term of five years to succeed the member whose term is expiring during the current year, as provided by statute; and, where the voters knowingly, freely and fairly cast those ballots at the time and place designated by law for their choice between the candidates whose names appeared thereon, and who sought to be elected as such member for the ensuing term, it was error to declare such election invalid.
2. A statute, which provides that no person shall be eligible for or have his candidacy submitted, considered or voted upon for membership on the board of education of an indepenedent school district unless he has theretofore filed a written notification and declaration of his candidacy with the clerk of the board of education of such district not more than twenty (20) days nor less than ten (10) days prior to the election, but does not provide for any particular form thereof, or any means of challenging, correcting or protesting the same, is substantially complied with when a candidate, on the first day of the filing period filed with the clerk of such board his written notification and declaration of his candidacy, erroneously stating therein that he filed for president of the board (which officer is selected by the board members from its membership) rather than member of the board as he should have where neither the clerk or any one else challenged or objected to the form or substance thereof until election day, after the ballots were prepared and furnished by the county superintendent of schools for the election of one member to succeed the member whose term was expiring.
C. N. Haskell, Muskogee, for plaintiff in error.
Banker & Bonds, Muskogee, for defendant in error.
The parties here occupy the same relative position as in the trial court and hereafter they will be referred to as they there appeared.
Plaintiff commenced this action, in the nature of quo warranto, in the district court of Muskogee County, Oklahoma, against the defendant Alex Scott to determine title to an office under Section 1531 et seq., Title 12 O.S.1941. He alleged that at the annual school meeting of the election of Independent School District No. 42 of Muskogee County, Oklahoma, he was, by the greatest number of legal votes cast, duly and legally elected as a member of the Board of Education of said district for a term of five years from the date of said election but that the defendant has usurped and intruded into and now unlawfully holds said office and unlawfully claims and assumes to be such officer and to have the right to exercise and perform the duties of the office during said term.
The defendant answered, alleging that he was the only candidate who had filed his notification and declaration as provided by law and was therefore the only candidate for membership on the Board of Education of Independent School District No. 42 and having no opponent, he was declared elected.
Trial to the court, without a jury, resulted in a judgment for the defendant when the court sustained defendant's demurrer to plaintiff's evidence, with exceptions.
A motion for new trial was overruled and plaintiff appeals.
The evidence discloses that only two candidates filed notifications and declarations as provided for in Section 11, Article 4, Oklahoma School Code, Chap. 1A, Title 70, Oklahoma Session Laws 1949, 70 O.S.Supp. § 4-11; that plaintiff's notification and declaration provided inter alia, 'I hereby submit my candidacy for election as president of the board of said District, * * *'; that at the annual meeting of the electors of the district, the presiding officer announced that Alex Scott, the defendant herein, was the only properly filed candidate and that he should be declared elected; that thereupon opposition from the electors was registered and they insisted that the election proceed with all electors present being informed that Fred Gardner, Sr., plaintiff herein, could not be elected president of the board but would have to be voted on as a member and not as president; that one of the electors inquired of the defendant Scott whether he had any objections to the election and he answered, 'No'; that the presiding officer (Vice-President Brooks) declined to hold the election; that the chair was assumed by J. L. Lyons, a member of the board and the clerk of the board officiated in the distribution of the ballots, writing each elector's name on the ballot stub, assisted by one of the teachers; that the ballots, when voted, were deposited in a ballot box, the taken out of the ballot box by Rev. Anthony and handed to Rev. Thomas who called out the vote on each ballot to be tabulated on the blackboard by two counters; that the tabulation showed 69 votes for Fred Gardner, Sr., plaintiff, and 30 votes for Alex Scott, defendant, and the result was declared by acting chairman Lyons, without objections.
Plaintiff contends that this evidence, admitted as true by the demurrer, shows that the election was a free and fair expression of the voters' will and should have been sustained by the trial court. We agree.
The ballots had presumably been prepared and furnished by the county superintendent of schools of Muskogee County, Oklahoma, for the election of one member of Independent School District No. 42 for a term of five years to succeed the member whose term was expiring during the current year as provided by Sections 8 and 16 of Article 4 of the Oklahoma School Code of 1949, 70 O.S.Supp. §§ 4-8, 4-16. The voters cast these ballots to elect a member of the board of education of said district and not for a President. This was thoroughly understood by everyone and no one was misled as to the purpose of the election. The irregularity in plaintiff's notification and declaration was of no consequence since no injustice resulted therefrom and the votes of the citizens were freely and fairly cast at the time and place designated...
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