Heyfron v. Mahony

• Decision Date: 14 May 1890
• Citation: 24 P. 93,9 Mont. 497
• Parties: HEYFRON v. MAHONY.
• Court: Montana Supreme Court

24 P. 93

9 Mont. 497

HEYFRON v. MAHONY.

Supreme Court of Montana

May 14, 1890

Appeal from district court, Missoula county; STEPHEN DE WOLFE Judge.

Woody & Webster, for appellant.

Word & Smith, for respondent.

BLAKE C.J.

At the general election held November 6, 1888, Daniel J. Heyfron was the Democratic, and Cain B. Mahony was the Republican candidate for the office of sheriff of the county of Missoula. The official canvass of the returns from all the precincts showed that Mahony had received 1,843 votes, and Heyfron 1,797 votes, and the certificate of election was delivered to the first-named person. Heyfron then initiated this contest by filing with the county clerk his statement, which sets forth many grounds under the provisions of the statute. Comp. St. div. 5, §§ 1043, 1044. Mahony interposed a demurrer, which was overruled, and thereupon answered, and Heyfron filed his replication. The cause was tried by the court without a jury and the evidence, which was offered by the contestant, related solely to the precinct at Bonner, where Mahony had 171 votes, and Heyfron had 51 votes. No testimony was introduced by Mahony, and the court made its findings of the facts from the pleadings and the evidence, and adjudged that Heyfron was entitled to the office. The motion of Mahony for a new trial was overruled, and an appeal was taken to the supreme court of the territory of Montana. The transcript does not contain any request for a finding in writing by the parties, and we will examine the errors which have been assigned.

It is admitted by the pleadings that six ballots were cast at the precinct of Noxon with the name of "Dan Heyfron" for the office of sheriff upon them; that the contestant was the only person having this surname within the county of Missoula; and that the board of canvassers did not count the same for the respondent. The statute requires that "the district court shall hear and determine in such manner as shall carry into effect the expressed will of a majority of the legal voters, as indicated by their votes for such office, not regarding technicalities or error in spelling the name of any candidate for such office." Comp. St. div. 5, § 1044. It was therefore properly ordered that these votes should be counted for Daniel J. Heyfron for said office.

The court further finds "that the whole vote returned by the canvassers from O'Kneefe precinct, being twenty-eight votes for contestee, Cain B. Mahony, and twelve votes for contestant, Daniel J. Heyfron, be excluded or thrown out and disregarded in making up the sum total of votes cast in the county for said office of sheriff." The statement of the contestant upon this ground is as follows: "Because at the voting precinct known as 'O'Keefe,' the election was not held at the place designated by the county commissioners for holding the election, and because the judges who held such election were not sworn. The place designated by the county commissioners was the house of one Blanchard, and the election was held at Evaro, more than three miles distant from the place designated by the commissioners." The answer does not deny these averments, but alleges the reasons for the opening of the polls at Evaro; that one of the judges, who had been appointed, and had in his possession the poll-books and ballot-box, notified the persons at Blanchard's house of this change; that every citizen who lived in the vicinity voted, and that no one was prevented by this removal from voting; and that the election held at this precinct was conducted honestly, and according to law. The replication controverts these reasons, which are matters regarding the convenience of voters, the size of Blanchard's house, and the quantity of whisky therein on the day of the said election, and "denies that all the voters of said precinct of O'Keefe had an opportunity to vote at said election." No evidence upon this point appears in the record, and we must be governed by the pleadings, which confess the facts specified in this ground. "Previous to votes being taken, the judges *** shall take and subscribe the *** oath." Comp. St. div. 5, § 1015. The statutes provide for the holding of elections "in the several counties, townships, or precincts" when the same may be necessary; that the clerk of the board "shall, at least thirty days before any general election, make out *** three written notices for each township or precinct, said notices to be, as near as circumstances will admit, as follows: Notice is hereby given that *** at the house of--, in the county of--, an election will be held;" that these notices shall be posted in the township or precinct,--' one at the house where the election is authorized to be held;" and that the form of entry in the poll-books, "as near as circumstances will admit," shall be as follows: "At an election held at the house of A. B., in the township or precinct." Comp. St. div. 5, §§ 1009, 1011, 1013, 1014, 1030. We cannot ascertain from the transcript the views of the court below upon the objections of the contestant to the returns of the O'Keefe precinct. That which is founded upon the failure of the judges to be sworn cannot be sustained. In Wells v. Taylor, 5 Mont. 208, 3 P. 255, Mr Chief Justice WADE, as the organ of the court, said: "The question is, was there a fair vote and an honest count? If there was, the election is valid, though the officers conducting the same were not duly sworn or chosen, or did not possess the qualifications requisite for the office." And see the cases there cited.

What then, was the legal effect of the removal of the polling place more than three miles from the house of Blanchard to Evaro? Mr. McCrary, in his work on Elections, writes: "It must be conceded by all that time and place are of the substance of every election, while many provisions which appertain to the manner of conducting an election may be directory only." Section 141. (3d Ed.) The same opinion is expressed by Mr. Paine in his treatise on Elections: "The requirement that the election shall be held at the place designated by law is not directory; it is mandatory, and must be obeyed." Section 327. In Knowles v. Yates, 31 Cal. 92, the court says: "Sullivan's house, which was three miles from the warehouse, was the place designated by the board of supervisors, and the fact that a copy of the proclamation was posted upon the warehouse is not sufficient to overcome the direct and positive evidence that Sullivan's house was the place designated. The conduct of the persons acting as officers of the election, in opening the polls and holding the election at a distance of three miles from the place appointed by the proper authority, was without any just excuse, and unauthorized, and in that respect was, in the sense of the statute, malconduct." In Melvin's Case, 68 Pa. St. 338, Mr. Chief Justice THOMPSON says: "A fixed place, it seems to me, is as absolutely a requisite, according to the election laws, as is the time of voting. The holding of elections at the places fixed by law is not directory; it is mandatory, and cannot be omitted without error. I will not say that, in case of the destruction of a designated building on the eve of an election, the election might not be held on the same or contiguous ground, as a matter of necessity, -- necessitas non habet legem. But then the necessity must be absolute, discarding all mere ideas of convenience. *** To move the place of election three miles from that designated by law, or from a village, and across a considerable stream, a half a mile or more distant from the village where it ought to have been held, or from a designated school-house to a vacant house, more than a half a mile distant therefrom, without authority or any absolutely controlling circumstances, must...