Hertle v. Ball

• Citation: 72 P. 953,9 Idaho 193
• Parties: HERTLE v. BALL
• Decision Date: 13 June 1903
• Court: Idaho Supreme Court

72 P. 953

9 Idaho 193

HERTLE v. BALL

Supreme Court of Idaho

June 13, 1903

IRRIGATION DISTRICT OFFICERS-CONTEST-WHAT COURT HAS JURISDICTION.-Where an election has been held as provided by law for the election of district officers for the irrigation district, a contest may be had involving the right of the person to whom the certificate is issued to hold such office. Jurisdiction to try and determine such question is lodged in the district courts of the state.

(Syllabus by the court.)

ACTION involving the right of respondent to hold the office of director of a division of an irrigating district. Judgment for defendant. Plaintiff appeals. Judgment reversed. Honorable George H. Stewart, Judge.

Reversed and remanded. Costs to appellants.

Rice &amp Thompson, for Appellants.

Section 1 of the general election law, Fifth Session Laws, page 33 is as follows: "Section 1. That the provisions hereinafter enacted shall regulate and govern all elections hereafter holden in the state of Idaho for the election of all officers provided for by the constitution and the laws of the state of Idaho at either general or special elections except school district elections." Section 119 of said law is as follows: "The election of any person to any public office . . . . may be contested," for the reasons therein stated. Sections 122, 123 and 124 provide the bodies before which all contests of elections regarding members of the legislature, all officers of the executive department of the state government, judges of the supreme court, judges of the district courts and district attorneys. It will be observed that none of these are county officers, or officers of any of the subdivisions mentioned in section 126, which is as follows: "Section 126. The district courts shall hear and determine contests of all other county, township and precinct officers, and officers of the cities and incorporated villages within the county." It certainly appears from the terms of the statute that it was the intention of the legislature to enact a general law providing for the contesting of all public officers. If no section of the statute has specifically named a court, granting such court jurisdiction in this specific case, and the statutes provide a method for contesting the election of such officers, there would be an implied jurisdiction for the reason that it is a well-established principle of law that jurisdiction can be created by implication where the implication is necessary from the language and purpose of the statute. When the provisions of the statute or constitution confess general jurisdiction upon certain courts and the method for contesting the election of an officer having been provided by statute and no court having been granted exclusive jurisdiction, the courts of general jurisdiction have jurisdiction inherently. (Payne v. Rittmen, 66 Ark. 201, 49 S.W. 814; Baker v. Mitchell, 105 Tenn. 610, 59 S.W. 137; Foxworth v. Lincoln etc. Ry. Co., 13 Neb. 398, 14 N.W. 394; Sutherland on Statutory Construction, sec. 237.) Where a section of the general election law provides that the law shall govern all elections and provision is made for election contests, the section carries with it the right to contest any election. And the mere fact that omission is made of some of the minor details for conducting such contests will not prevent the court from acquiring jurisdiction. (Truelson v. City of Duluth, 60 Minn. 132, 61 N.W. 911; State v. Stewart, 26 Ohio St. 216.)

W. E. Borah, for Respondent.

We do not wish to be understood as saying that matters of election may not be brought into the courts by quo warranto or even by actions of equity as in bond elections where there has been fraud, etc., but this we do say, that the right of an individual to contest an election is purely statutory, and unless specifically provided for, such contest cannot be had. "The question of jurisdiction of statutory election contests is altogether a matter of statutory regulation." (7 Ency. of Pl. & Pr. 378; 1 McCrary on Elections, sec. 307; Snibley v. Palmtag, 128 Cal. 283, 60 P. 860; Dorsey v. Barry, 24 Cal. 449; Casgrave v. Howland, 24 Cal. 457.) Where no provision has been made for contesting elections, the result as certified by those holding the election must determine the issue. (Clark v. Rogers, 81 Ky. 43.) It has been held that where the statute makes no provision for a contest in a county seat matter, and as the general law only applied to contests in the election of officers, there can be no contest as to the county seat matter. (Clarke v. Jack, 60 Ala. 271; Savage v. Wolfe, 69 Ala. 659.) In the absence of statutory authorization courts are without jurisdiction to entertain cases of contested election. (State v. Dortch, 41 La. Ann. 846, 6 So. 777; State v. Dillon, 87 Mo. 487.) In a Kentucky statute relating to the taxation of railroads which provides: "That they should be taxed for the purposes of each county seat, town or precinct," it was held that the word "precinct" could not be construed as meaning a school district. (Louisville etc. Ry. Co. v. Johnson, 11 Ky. Law Rep. 118, 11 S.W. 666.) It has been held that illegal voting in a village election was not punishable under a law prohibiting illegal voting at a precinct. (State v. Chichester, 31 Neb. 327, 47 N.W. 694.) It has been held also that the term "precinct" does not mean an organized municipal corporation. (Union P. Ry. Co. v. Ryan, 2 Wyo. 408.)

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are fully stated in the opinion.

STOCKSLAGER, J.

The Pioneer Irrigation District is a regularly organized irrigation district of the state, and contains territory in both Canyon and Ada counties. On the thirteenth day of January, 1903, an election was held in said district for the election of officers in accordance with the provisions of said law. This action is brought by the plaintiff for the purpose of contesting the election of defendant as a director at said election. To the complaint the defendant interposed a demurrer by which he called in question the jurisdiction of the district court to hear and determine the contest.

The demurrer was sustained, and a judgment of dismissal duly entered. This statement of facts is taken from appellants' brief, and as it seems to be a fair statement as shown by the record, we adopt it as our statement.

The complaint alleges in paragraph 1 the names of the plaintiffs the existence of the Pioneer Irrigation District, that they are each duly qualified electors of said district, and of division No. 3 thereof; that each had been a qualified elector for more than one year prior to January 13, 1903, and in division No. 3 thereof. Second paragraph alleges that on the thirteenth day of January, 1903, an election was duly held according to law in said district and the various divisions thereof. That at said time an election was held in the third division of said district for the election of one director for the term of two years from the first Tuesday in February, 1903. Third paragraph: That at said election defendant was a candidate for the office of director of said division of said district, and Thomas A. Hertle, one of the plaintiffs, was also a candidate for said office, and both of said candidates were voted for at said election. Fourth paragraph: That on the nineteenth day of January, 1903, at Caldwell, Idaho at its usual place of meeting, the board of directors of said Pioneer Irrigation District met to canvass the returns of said election according to law, and the said board then and there proceeded to open the returns of the various precincts of said district to canvass the votes and estimate the vote of the district for each person voted for; and among other things done by said board at said meeting, the said board of directors declared that the said Samuel L. Ball had received fifteen votes for director of said Pioneer Irrigation District from the said division No. 3 thereof, and that said Thomas A. Hertle had received ten votes, and that said Samuel L. Ball had been duly elected a director of said district from division No. 3.

The fifth paragraph alleges that the secretary of said district thereupon entered on the records of said board a statement of such result and made out and delivered to said Ball a certificate of election signed by him authenticated with the seal of said board.

The sixth paragraph alleges that said Samuel L. Ball, defendant and contestee, did not, as plaintiffs are informed and believe and therefore allege, receive fifteen votes of the legal voters of said division No. 3, or the Pioneer Irrigation District, but received four votes only of the votes cast by the legal voters of said district and said division, and that Thomas A. Hertle received ten votes of the legal voters of said district and said division.

The seventh paragraph sets out the names of eleven persons alleged to have been allowed to cast their ballots at such election, and that neither of them were qualified electors. On information and belief allege that each of said persons voted for Samuel L. Ball, and that such votes were counted and made a part of the returns, were canvassed and declared as being cast for defendant.

The eighth paragraph alleges that defendant, on or about the tenth day of January, 1903, caused to be deeded and conveyed to the persons named in this paragraph, by the Caldwell Land Company, lot 18, block 134 as designated by the plat of the said town of Caldwell, without consideration and for no other purpose than to qualify said persons to vote at said election, etc. The names of the parties given are R. P Smith, A. H. Boyd, A. C. Bradley, G. W. Boyd, John Fuss, Albert Clark, Jake Reeser, Wm. J. Marsh and Wm. C. Bader. Further...