Huffaker v. Edgington

• Decision Date: 08 March 1917
• Citation: 163 P. 793,30 Idaho 179
• Parties: W. W. HUFFAKER, Appellant, v. GEORGE W. EDGINGTON, Respondent
• Court: Idaho Supreme Court

163 P. 793

30 Idaho 179

W. W. HUFFAKER, Appellant, v. GEORGE W. EDGINGTON, Respondent

Supreme Court of Idaho

March 8, 1917

CONTESTED ELECTIONS-CONFLICT IN EVIDENCE-BURDEN OF PROOF-DUTIES OF ELECTION OFFICERS.

1. The findings of fact of the district court in contested election cases will not be set aside by the supreme court where there is a substantial conflict in the evidence and such findings are supported by competent evidence.

2. The burden rests upon the party contesting an election to show that enough illegal votes were cast, or legal votes rejected to change the result of the election, or that such serious wrong or fraud existed as to make the result of the election doubtful, in order to justify the court in setting aside the certificate of the canvassing board.

3. Laws prescribing the duties of the election officers are directed primarily to such officers, and their failure to comply with such laws relative to registering voters who comply with the law so far as required of them should not be construed so as to defeat the right of citizens to vote, unless the failure to strictly comply with such laws makes the result of the election doubtful.

[As to statutory remedy for contest of election as being exclusive see notes in Ann.Cas. 1913E, 982; Ann.Cas. 1914D, 274]

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. James G. Gwinn, Judge.

Action to contest election of mayor of Idaho Falls. Judgment for contestee. Affirmed.

Judgment affirmed. Costs awarded to respondent.

William P. Hanson, for Appellant.

A succession of unexplained irregularities and a disregard on the part of the officials is sufficient to deprive the ballotbox and the return to the credit to which they are entitled, and shifts the burden upon the party maintaining the legality of the official count. (McCrary on Elections secs. 497, 582.)

Where fraud and irregularities occur in the conduct of election to such an extent that it is impossible for the court to separate, with reasonable certainty, the legal from the illegal votes, the precinct should be excluded. (Vigil v. Garcia, 36 Colo. 430, 87 P. 543; Tebbe v. Smith, 108 Cal. 101, 49 Am. St. 68, 41 P. 454, 29 L. R. A. 673.)

Some responsibility is placed upon the voter. (Sweeney v. Hjul, 23 Nev. 409, 48 P. 1036, 49 P. 169.)

Where registration is required by law and election held without the voters being registered, as required by law, the election is invalid, and a person who is not registered as is required by law is not a qualified voter, and not entitled to vote. (In re McDonough, 105 Pa. 488; In re Election of School Directors, 18 Phila. (Pa.) 458; State v. Hilmantel, 21 Wis. 566; Zeiler v. Chapman, 54 Mo. 502; Patterson v. Hanley, 136 Cal. 265, 68 P. 821, 975.)

A number of the statutory provisions are held to be directory only, and not mandatory. However, if they affect the merits of the election, they will be held to be mandatory. (Harrison v. Stroud, 129 Ky. 193, 16 Ann. Cas. 1050, 110 S.W. 828; Parvin v. Wimberg, 130 Ind. 561, 30 Am. St. 254, 30 N.E. 790, 15 L. R. A. 775; Bowers v. Smith, 111 Mo. 45, 33 Am. St. 491, 20 S.W. 101, 16 L. R. A. 754; State v. Board of Canvassers, 78 S.C. 461, 13 Ann. Cas. 1133, 59 S.E. 145, 14 L. R. A., N. S., 850; note to 83 Am. Dec. 49.)

"Mere irregularities or mistakes on the part of the election officers, if they do not affect the results of the election, will be disregarded, but where the mistakes or irregularities on the part of the judges are so flagrant that the results are doubtful, they cannot be disregarded." (Peabody v. Burch, 75 Kan. 543, 12 Ann. Cas. 719, 89 P. 1016; People v. Bates, 11 Mich. 362, 83 Am. Dec. 745; Heyfron v. Mahoney, 9 Mont. 497, 18 Am. St. 757, 24 P. 93; Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, 28 L. R. A. 502; Blackwell v. Newkirk, 31 Okla. 304, Ann. Cas. 1913E, 441, 121 P. 260; Tuntland v. Noble, 30 S.D. 145, Ann. Cas. 1915A, 1004, 138 N.W. 291.)

"In an election contest where irregularities are shown, the person claiming that legal votes were cast for him has the burden of proving this fact." (Lloyd v. Sullivan, 9 Month. 577, 24 P. 218; Payne on Elections, see. 592; Heyfron v. Mahoney, 9 Mont. 497, 18 Am. St. 757, 24 P. 93; McCrary on Elections, secs. 596, 539.)

"Persons attempting to uphold irregularities on the part of those conducting an election have the burden of proof that such conduct did not affect the results." (People v. Larkspur, 16 Cal.App. 169, 116 P. 702, 706; Town of Ryan v. Town of Waurika, 29 Okla. 655, 119 P. 220.)

"Where such a number of persons voted in violation of law that the results are placed in doubt, the court should annul the election." (Harrison v. Stroud, 129 Ky. 193, 16 Ann. Cas. 1050, 110 S.W. 828.)

Any action of a canvassing board adjourned without date is a nullity. Their power and duties as a canvassing board ceased after they had canvassed the vote and published the returns. (15 Cyc. 383, and cases cited; Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 P. 129 L. R. A. 157.)

Where there is a conflict between the certificate returned by the election officers and the tally-sheet, the election certificate controls. (People v. Tool, 35 Colo. 225, 117 Am. St. 198, 87 P. 224, 229, 231, 6 L. R. A., N. S., 822; State v. McFadden, 46 Neb. 668, 65 N.W. 800; State v. Eastman, 46 Neb. 675, 65 N.W. 805.)

Phil. Averitt, B. J. Briggs and Herbert Reeves, for Respondent.

Neither the ignorance, neglect, fraud or corruption of an election officer will be allowed of itself to disfranchise the citizen, and neither will failure to observe the provisions of a directory statute be permitted to avoid the election, unless coupled with actual fraud, except where it prevents casting of legal votes, and if the fraud should consist in the reception of illegal votes, it will not then be permitted, no matter what its degree, to avoid the election, if it is possible for the court to purge the polls of the illegal votes cast. (Vigil v. Gareia, 36 colo. 430, 87 P. 543; Lehman v. Pettingell, 39 Colo. 258, 89 P. 48; Packwood v. Brownell, 121 Cal. 478, 53 P. 1079; People v. Earl, 42 Colo. 238, 94 P. 294; Stinson v. Sweeney, 17 Nev. 309; 30 P. 997.)

The wrong of the officers cannot be visited upon the electors, so as to deprive them of the right of suffrage, where the electors themselves have not been parties to the wrong. (McCrane v. County of Nez Perce, 18 Idaho 714, Ann. Cas. 1912A, 165, 112 P. 312, 32 L. R. A., N. S., 730.)

No irregular or improper conduct in the proceedings of the judges is such malconduct as avoids an election, unless it is such as to procure the person whose right to the office is contested to be declared elected, when he had not received the highest number of legal votes. (State ex rel. McMillan v. Sadler, 25 Nev. 131, 83 Am. St. 573, 58 P. 284, 59 P. 546, 63 P. 128; Heyfron v. Mahoney, 9 Mont. 497, 18 Am. St. 757, 24 P. 93; Wells v. Taylor, 5 Mont. 202, 3 P. 255; State v. Fawcett, 17 Wash. 188, 49 P. 346; Russell v. McDowell, 83 Cal. 70, 23 P. 183; People v. Earl, 42 Colo. 238, 94 P. 294; Lane v. Bailey, 29 Mont. 548, 75 P. 191; Quinn v. Lattimore, 120 N.C. 426, 58 Am. St. 797, 26 S.E. 638; People v. Wood, 148 N.Y. 142, 42 N.E. 536; Moyer v. Van De Vanter, 12 Wash. 377, 50 Am. St. 900, 41 P. 60, 29 L. R. A. 670; Bowers v. Smith, 111 Mo. 45, 33 Am. St. 491, 20 S.W. 101, 16 L. R. A. 754.)

The burden of proof is upon contestor to sustain by a preponderance of the evidence the material averments of his petition. (Savard v. Herbert, 1 Colo. App. 445, 29 P. 461; Tarbox v. Sughrue, 36 Kan. 225, 12 P. 935; McCrary on Elections, sec. 466a.)

DAVIS, District Judge. Morgan and Rice, JJ., concur.

OPINION

DAVIS, District Judge.

This is an action to test the legality of the election of the mayor of Idaho Falls.

The contestant, appellant in this court, assigns numerous errors of the district court, which may be grouped under four general heads, as follows:

That the court erred in not finding that there were more illegal votes cast.

In not imposing the burden upon the party claiming the benefit of the votes as cast to show the legality thereof, after it was shown that there was irregularities in the registration of voters and in the conduct of the election officers.

In finding that wherein the election officers failed to fully perform their duties nothing was done or omitted with any sinister purpose or fraudulent intent.

And in holding that the irregularities and misconduct on the part of the officers of election in the first ward did not amount to actual fraud so as to affect the returns from that precinct.

The district court found that there were 909 votes cast for Edgington and 900 for clark, and after deducting seven illegal votes cast for Edgington, he received 902 votes, and after deducting four illegal votes cast for Clark, he received 896 votes, thus giving the election to Edgington by a majority of six votes.

It is admitted that David Clark, who voted for Edgington, was not a legal voter, and that there were two more illegal votes cast, but for whom could not be determined.

The contestant contends that five other persons who voted for Edgington were also illegal voters, the principal objection to each being that he was not a resident and citizen of Idaho Falls as required by law. There was substantial evidence in each instance to the effect that such person was a citizen entitled to vote in Idaho Falls, and this court will not disturb the findings of the district court to that effect.

In addition to the instances mentioned, the contestant alleges that a large number of other persons were permitted to vote who were not registered as required by law, and urges that therefore the vote of the precinct...