Hamer v. Howell

• Decision Date: 24 September 1906
• Docket Number: 1693
• Citation: 86 P. 1073,31 Utah 144
• Court: Utah Supreme Court
• Parties: HAMER v. HOWELL

86 P. 1073

31 Utah 144

HAMER v. HOWELL

No. 1693

Supreme Court of Utah

September 24, 1906

APPEAL from District Court, Weber County; C. W. Morse, Judge.

Action by Daniel Hamer against James Albert Howell to contest an election. From an adverse judgment, contestant appeals.

AFFIRMED.

O. W Powers, C. S. Varian, C. C. Richards, and H. H. Henderson for appellant.

APPELLANT'S POINTS.

A candidate for an office to which is attached a fixed salary who offers to the electors to discharge, if elected, the duties of of such office at less than the stated salary, is not entitled to have counted for him any votes given in consideration of such promise. (State v. Purdy, 36 Wis. 213; State v. Collier, 72 Mo. 13; Carrothers v. Russel, 53 Iowa 350, 5 N.W. 499; Nichols v. Mudgett, 32 Vt. 546; Cook v Shipman, 24 Ill. 614; Tucker v. Aiken, 7 N.H. 113; State v. Olin, 23 Wis. 309.)

When a man makes a promise of patronage to secure his election, it is pretty well understood that the consideration is that the promisee will not only vote himself for the promisor, but induce as many of his friends as possible to do the same. (McCreary on Elections [4th Ed.], 163; Bradley v. Clark, 133 Cal. 196, 65 P. 395; State v. Towns, 153 Mo. 99, 54 S.W. 552; State v. Church, 5 Ore. 375, 20 Am. Rep. 746; Carroll v. Green, 148 Ind. 362, 47 N.E. 223.)

The court may not arbitrarily disregard the testimony of credible witnesses where, as in this case, there can be but one inference drawn by reasonable men from the testimony given by them. (Thompson v. Hynds, 15 Utah 389; Bank v. Donald [Minn.], 58 N.W. 269; Engmann v. Est. of Immel [Wis.], 18 N.W. 182; Boe v. Lynch [Mont.], 49 P. 381; 11 Am. & Eng. Enc. Law, 500; 3 Enc. of Evidence, 753-755.)

"Omission of mandatory requirements is fatal, whether from fraud, mistake or irregularity. Such statutes are regarded as constitutional and valid, though by their application the rejection of a few honestly voted ballots is necessitated." (Kirkpatrick v. Board of Can. [W. Va.], 44 S.E. 465; West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 Mo. 422; State v. Connor [Tex.], 23 S.W. 1103; State v. Connor [Tex.] 25 S.W. 815; Lay v. Parsons [Cal.], 38 P. 447; Currin v. Clayton [Me.], 29 A. 930; Keller v. Toulme [Miss.], 7 So. 508, 15 Cyc. 357.

The allegation "that at the said election one received the greatest number of legal votes for the said office" was sufficient. (High on Extraordinary Legal Remedies, sec. 710; Attorney General v. Barstow, 4 Wis. 568; Howard v. Shields, 16 O. St. 189; Rounds v. Smart, 71 Me. 382; Kilburne v. Patterson [N.C.], 3 S.E. 491, 17 Enc. Pl. & Pr., 464, 466, 467.)

E. T. Hulaniski, W. L. Maginnis, J. W. Kimball and Heywood & McCormick for respondent.

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., concurs in the judgment. STRAUP, J., concurs.

OPINION

STATEMENT OF FACTS.

At the general election held on the 8th day of November, 1904, Henry H. Rolapp and James A. Howell were, respectively, the Democratic and Republican nominees for the office of judge of the Second judicial district of the state of Utah comprising the counties of Weber, Morgan, and Davis. The official count showed that 6,763 votes were cast for Howell and 6,596 for Rolapp, which gave the former a majority of 167. Howell was, therefore, declared elected, and a certificate was duly issued to him by the Secretary of State, and, on the 1st Monday of January, 1905, he duly qualified and entered upon the duties of the office. On December 21, 1904, Daniel Hamer commenced this action in the district court of Weber county to contest the election of Howell, and obtain a judgment annulling his election and adjudging that Rolapp had received the highest number of legal votes cast in said district, and that he, therefore, was and is entitled to the office. This proceeding is brought under section 914, Rev. St. 1898, which provides:

"The election of any person to any public office, the location or relocation of a county seat, or any proposition submitted to a vote of the people, may be contested: (1) For malconduct, fraud, or corruption on the part of the judges of election at any polling place, or of any board of canvassers, or any member of either board sufficient to change, the result. (2) When the incumbent was not eligible to the office at the time of the election. (3) When the incumbent has given or offered to any elector or any judge or canvasser of the election, any bribe or reward in money, property, or anything of value, for the purpose of procuring his election, or has committed any other offense against the elective franchise defined by law. (4) When illegal votes have been received, or legal votes have been rejected at the polls sufficient to change the result. (5) For any error of any board of canvassers or of the judges of election in counting the votes or declaring the result of the election, if the error would change the result. (6) For any other cause which shows that another person was legally elected. The term incumbent in this section means the person whom the canvassers declare elected."

Section 918, Rev. St. 1898, provides:

"When the reception of illegal votes or the rejection of legal votes is alleged as a cause of contest, it is sufficient to state generally, that in one or more specified districts or polls illegal votes were given to the person whose election is contested, which, if taken from him, would reduce the number of his legal votes below the number of legal votes given to some other person for the same office; or that legal votes for another person were rejected, which, if counted, would raise the number of legal votes for such person above the number of legal votes cast for the person whose election is contested; but no testimony can be received of any such votes, unless the party contesting such election deliver to the opposite party, at least three days before such trial, a written list of the number thereof, and by whom given or offered, which he intends to prove on such trial; and no testimony can be received of any of such votes except such as are specified in such list."

The grounds of contest, as alleged in the complaint, are in substance as follows: "(1) That the said Henry H. Rolapp received for office a greater number of legal votes cast than were at said election cast for or received by any other person for the said office. (2) That at said election illegal votes were received by the judges of election in the following named election districts [naming them], and that said votes were wrongfully received and cast and were counted for James A. Howell [but the number of such illegal votes cast and counted is not alleged.] (3) That the board of canvassers, in canvassing the returns of a certain election district called 'Hooper City No. 1,' which said returns were in all respects regular and complete upon their face, wrongfully added 57 votes to such returns for said Howell [thus changing the result to such extent]. (4) That the said Howell has given and offered to give to divers and sundry electors and registered voters within said district [naming nineteen persons] and divers other persons and electors unknown large sums of money and other things of value for the purpose thereby of procuring their said votes for him at his election.

(5) That the said Howell offered and promised to give and to procure for one Burdick, an elector, the office of employment as official stenographer in said district court, and that such offer and promise was made and given for the purpose of inducing the said Burdick and other electors to vote for said Howell. It is also alleged that he, Howell made similar offers and promises to Hooper, Dye, and Dalton. (6) That the officers and judges of election accepted 387 legal votes which were in truth and in fact cast for said Rolapp, but said election judges failed to count and tally said votes for said Rolapp. (7) That the election judges erroneously and wrongfully counted and tallied 387 legal votes for Howell which were cast for Rolapp. (8) That if the said 387 legal votes cast for Rolapp had been counted for him the result would have been so changed as to have caused Rolapp's election. (9) That the said Howell, prior to the election, offered and promised to buy from sundry electors [naming nine persons] and divers other persons and electors unknown frosted and unmarketable and damaged wheat then held and owned by such electors and to pay them therefor the regular market price of good and marketable wheat, and that, in pursuance thereof, the said electors accepted the said offer and delivered frosted, unmarketable and damaged wheat at the store of Reese Howell & Sons, of which the contestee was a member, and received therefor the price of good and marketable wheat." It appears from the record that in some of the polling or voting districts in Weber county outside of Ogden City, many Republicans, residents of those districts, were very much dissatisfied because the county outside of Ogden City was practically without representation on the Republican ticket. George Halverson, who was a candidate for the office of district attorney, and on the same ticket with Howell, was called as a witness by contestant and testified that he and Howell agree to, and did, conduct their campaign together; that they jointly employed workers who were supposed to work for the success of the Republican Party in general, and to make special efforts to secure the election of Howell and Halverson; that a short time before the election he and Howell met John Hooper and his father on the street and were informed by them "that the representatives of the party outside of Ogden had decided to ask for two deputies in the county courthouse," and that he and one Dye had been...