Hamilton v. Marshall

• Citation: 282 P. 1058,41 Wyo. 157
• Decision Date: 17 December 1929
• Docket Number: 1572
• Parties: HAMILTON v. MARSHALL [*]
• Court: United States State Supreme Court of Wyoming

282 P. 1058

41 Wyo. 157

HAMILTON v. MARSHALL ^[*]

No. 1572

Supreme Court of Wyoming

December 17, 1929

ERROR to District Court, Uinta County, VOLNEY J. TIDBALL, Judge.

Action by Robert R. Hamilton against William Marshall. Judgment for defendant, and plaintiff brings error.

Affirmed.

The cause was submitted for the plaintiff in error on the brief of M. A. Kline of Cheyenne, and Samuel Corson, Jr., of Evanston.

All votes cast in the Lyman voting precinct should have been rejected since it is impossible to separate the votes cast after seven o'clock p. m., from the votes cast prior to that hour. If the entire election so far as the office of sheriff is concerned, is held invalid, plaintiff in error is entitled to hold over. The law requires polls to be closed at seven o'clock, p. m. Laws 1927, Ch. 29. Votes cast thereafter are illegal if they change the result. 20 C. J 174; McCrary on Elecs. (4th Ed.) Secs. 163, 165. Ann. Cases 1913 B., P. 166; Banks v. Sargent, (Ky.) 48 S.W 149; Varney v. Justice, (Ky.) 6 S.W. 457; Thompson v. Stone, (Ky.) 174 S.W. 763; People v Hill, (Calif.) 57 P. 669; Tebbe v. Smith, (Calif.) 41 P. 454; Savage v. Umphries, (Tex.) 118 S.W. 893; People v. Cicote, (Mich.) 97 Am. Dec. 141. In Ohio v. Ritt, 70 Am. Law Register 88, it was held that an unauthorized closing of polls would affect the election. In Locust Ward case, 4 Pr. L. J. 431, it was held where polls were kept open too long and votes cast during the excessive period were sufficient to change the result, the election must fail because no inquiry could be allowed into individual votes. White v. School Board, (La.) 111 So. 700. The apparent weight of authority on the question is that where polls are not kept open long enough, or are kept open beyond closing time for a sufficient period to effect the result, the precinct where it occurs will not be counted. Kenworthy v. Mast, (Cal.) 74 P. 841; Heyfron v. Mahoney, (Mont.) 24 P. 93; Paine on Elections, Sec. 513; People v. Hanna, 57 N.W. 738; Vigil v. Garcia, (Colo.) 87 P. 543; Clarke v. McCown, (S. C.) 92 S.E. 479. It being conceded that 14 or more votes were cast at Lyman precinct, after the hour when polls should have been closed, and that such votes were sufficient in number to have changed the result of the election, and it being unlawful to reveal how any elector voted, (2631 C. S.) (Art. VI, Sec. 11 Const.), the entire vote of the precinct should be rejected, which would result in plaintiff's election. The plaintiff's petition stated a good cause of action, and the trial court erred in sustaining defendant's demurrer. This is a special statutory proceeding. Rules of precision required of pleadings in civil actions, do not apply. 2674 C. S.; Goecker v. McOsker, (Ind.) 98 N.E. 724; Silver v. Brown, (Ky.) 284 S.W. 997; Abbott v. Hartley, (Cal.) 77 P. 410; Murphy v. Levengood, (Mont.) 77 P. 311; Whitney v. Blackburn, (Ore.) 21 P. 874; Skewes v. Bliss, (Utah) 196 P. 850; Leonard v. Woolford, (Md.) 46 A. 1025; Lawrence v. Wheeler, (Kan.) 93 P. 602.

The cause was submitted for defendant in error on the brief of T. S. Taliaferro, Jr., and Arthur-Lee Taliaferro, of Rock Springs, Wyoming.

Not a single authority quoted by counsel for plaintiff in error support their contention, with the possible exception of In Re: Locust Ward, 3 Pa. L. J. R. 11, 4 Pa. L. J. 341, decided almost a century ago, under statutory provisions that have almost universally gone out of use. An examination of the cases cited in the footnotes of Corpus Juris, do not sustain the text cited by counsel; in citing McCrary on Elections, an important portion of the text was omitted. The pleading in the case at bar, does not show that contestant either lost or gained by deviation from the time fixed for closing the polls. The same criticism may be urged to the note in Annoted Case 1913B, p. 166, that we have made to the text in Corpus Juris, viz.: lack of support by cited authorities. Statutes fixing the hour of opening and closing polls are directory, and votes cast after the closing hour in the absence of fraud, do not vitiate the election. Jones v. State, (Ind.) 55 N.E. 231; Patton v. Watkins, 31 So. 93; Chenoweth v. Erehart, (Ariz.) 127 P. 748; Swepston v. Barton, 39 Ark. 449; Holland v. Davis, 36 Ark. 446; Packwood v. Brownell, (Calif.) 53 P. 1079; People v. Prewett, 56 P. 650; People v. Hill, 57 P. 669. The same rule applies in cases of delay in opening the polls where ample time is left to receive all votes. Kenworthy v. Mast, (Cal.) 74 P. 841; Thornber v. Hart, 155 P. 99; Clark v. Manhattan, 166 P. 806; McComb v. Dutton, 122 A. 82; Pickett v. Russell, (Fla.) 28 So. 770; Lane v. Fern, 20 Hawaii 290; Jaycox v. Varnum, 226 P. 285; Dist. v. School Dist., (Ia.) 83 N.W. 1068; People v. Sweitzer, (Ill.) 145 N.E. 648; Western v. Margraf, (Ill.) 160 N.E. 215; State v. Arnold, (Mo.) 213 S.W. 837; Atkinson v. Co., (Mont.) 227 P. 811; People v. Cook, 8 N.Y. 67; Lehlback v. Haynes, (N. J.) 23 A. 422; Williams v. Sherwood, (N. D.) 200 N.W. 782; Fry v. Booth, 19 Oh. St. 27; Lamb v. Palmer, (Okl.) 191 P. 184; Parker v. Clatsop Co., (Ore.) 138 P. 242; Moore v. Plott, (Tex.) 206 S.W. 958; Murphy v. Spokane, (Wash.) 117 P. 478.

KIMBALL, Justice. BLUME, Ch. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

Plaintiff and defendant were opposing candidates for the office of sheriff of Uinta County at the last general election. After the official canvass of the returns, defendant was declared elected, and plaintiff brought a contest. A demurrer to the petition was sustained, and plaintiff declining to plead further, judgment was entered in favor of defendant. Plaintiff brings the case here by proceeding in error alleging that the District Court erred in sustaining the demurrer.

The demurrer was on the ground that the petition did not state facts sufficient to constitute a cause of action. The material facts admitted by the demurrer appear in the following statement.

The defendant, on the returns as canvassed, was elected by a majority of 10. The polls at the election were required to be closed at seven o'clock in the evening. Ch. 29, Laws 1927. The poll in Lyman precinct was kept open until after 9 o'clock in the evening, and 14 electors voted in that precinct after seven o'clock. The petition alleged the number as "fourteen or more," but we think the demurrer admitted only that there were fourteen. There were cast in Lyman precinct a total of 301 votes, but only 298 on the office of the sheriff. Of these 298 votes, 55 were for plaintiff and 243 for defendant. It is impossible to distinguish the ballots of the 14 electors who voted after seven o'clock from the other ballots cast in said precinct.

The petition does not charge that defendant had anything to do with the keeping of the poll open, nor with the reception of the fourteen votes, after seven o'clock. Nor does it contain any charge of fraud or wrong motive on the part of the election officials. The poll was probably kept open until 9 o'clock as the result of the mistaken application of an earlier statute that referred to primary elections. There is no claim that the fourteen persons who voted after seven o'clock were not qualified electors of the precinct. It is not alleged that any of them voted for defendant, nor that it is impossible to prove for whom they did vote. It is alleged that the 14 votes, which are characterized as illegal, were enough "to have changed the result of the election." This allegation is inconclusive. Whether or not they did change the result would depend on facts that are not stated. The plaintiff evidently was unwilling to allege and did not expect to prove for which candidate the questioned votes were cast.

If the petition had alleged that the votes cast after seven o'clock changed the result, there would be good authority for holding that even then it failed to state a ground of contest unless it was charged that the poll was kept open as the result of fraud or collusion, or for the purpose of altering, changing or affecting the result of the election, or that the persons who voted after hours were not qualified electors. In re Chagrin Falls, 91 Ohio St. 308, 110 N.E. 491. Other cases do not go so far as the Ohio case in disregarding irregularities in the opening and closing of polls, but we think, when the facts of the various cases are examined, it will be found that all are in substantial agreement in holding that such an irregularity does not furnish a ground of contest unless it must be deemed to have affected materially the result. Vansant v. McPherson, 155 Ky. 34, 159 S.W. 630; McComb v. Dutton, 32 Del. 255, 2 W. W. Harr. (Del.) 255, 122 A. 81; Williams v. Sherwood, 51 N.D. 520, 200 N.W. 782; Chambers v. Board of Directors, 172 Iowa 340, 154 N.W. 581. The important conflict in the authorities arises from a difference in the views as to when the irregularity should be deemed to have affected the result to the prejudice of the contestant, and the method of determining that question.

The plaintiff contends that the votes received after seven o'clock were illegal because they would not have been cast if the poll had been closed at the proper time. We may assume for the purposes of the case that plaintiff's contention on that point ought to be sustained, though In re Chagrin Falls, supra, is authority to the contrary. But, at least in a case where there was no fraud, and the votes were received without defendant's fault, the plaintiff has the burden of proving, and, of course, should allege, not only that illegal votes were cast, but that enough were cast for defendant to change the result. McCrary on Elections (4th Ed.) Sec. 497; Piatt v. People, 29 Ill. 54, 72; Ex parte Murphy, 7 Cow. 153; Lehlbach v Haynes, 54 N.J.L. 77, 23 A. 422; Tazwell v....