Inc. v. Inc.

• Citation: 1909 OK 278,105 P. 664,24 Okla. 892
• Decision Date: 09 November 1909
• Docket Number: Case Number: 229
• Parties: INCORPORATED TOWN OF WESTVILLE v. INCORPORATED TOWN OF STILLWELL et al.
• Court: Supreme Court of Oklahoma

1909 OK 278

105 P. 664

24 Okla. 892

INCORPORATED TOWN OF WESTVILLE v. INCORPORATED TOWN OF STILLWELL et al.

Case Number: 229

Supreme Court of Oklahoma

Decided: November 9, 1909

Syllabus

¶0 1. COUNTIES--County Seat Election--Contest--Parties. This court acquires jurisdiction of a proceeding to contest the result of a county seat election under article 4, c. 31, pp. 378-387, Sess. Laws 1907-08, when the application therefor is filed within 30 days after such election has been held.

(a) Any additional necessary party may be made on proper application and showing after the expiration of such 30 days.

(b) It not being shown that Adair county as a political organization has any interest in this contest and no application having been made by the proper representatives of the county to be made a party hereto, this proceeding will be proceeded with without requiring it to be joined as a party thereto.

2. COUNTIES--County Seat Election--Qualification of Voters--Mandatory Provisions. Section 12, art. 4, c. 31, p. 382, Sess. Laws 1907-08. providing that "every person desiring to vote at such special election * * * shall, before being given a ballot, permit the clerks to fill out an affidavit and * * * shall subscribe and swear to said affidavit, * * *" is mandatory.

3. COUNTIES--County Seat Election--Majority Determination. For the purpose of determining the majority of the votes cast at a special election held to vote upon the removal or relocation of a county seat under the provisions of section 6, art. 17, Const. (sections 328 to 334 inclusive. Bunn's Ed.), and article 4, c. 31, pp. 378-387, Sess. Laws 1907-08, all the ballots cast on such question by the qualified electors of the county, making an honest though ineffectual effort to participate therein or have their ballots counted on the removal of the county seat, a majority of this number must be cast so as to be counted in favor of one of the contesting places before any town, city, or place shall be declared to be the county seat as a result of such election.

4. SAME--"Vote Cast." A ballot voted by a qualified elector without his having subscribed and sworn to the affidavit, as required by section 12. art. 4, c. 31, p. 382. Sess. Laws 1907-08, cannot be counted for any city, town, or place as a candidate for the county seat at such election.

(a) Such ballot, however, where the elector was qualified and acted in good faith, should be considered as a vote cast in estimating the number on which the required majority for the removal or relocation of the county seat is to be computed.

(b) The term, "vote cast," includes a ballot voted by a qualified elector, acting in good faith and failing to comply with the mandatory requirements imposed upon him in voting at such special election by section 12, supra, even though it precludes such vote from being counted for the town, city, or place for which he intended to vote.

5. COUNTIES--County Seat Election--Failure to Elect--Second Election. If by virtue of section 6, art. 17, Const., a majority of the votes cast at a special election shall not be received by or counted in favor of any city. town, or place voted for thereat, and there being more than two candidates for the location of the county seat at such election. the names of all except the two receiving the greatest number of votes shall be dropped, and the Governor shall in like time and manner cause to be held a second election at which only the said two towns shall be voted for.

(a) In the event none of the candidates at said first election received a majority of the votes cast thereat, there being only two candidates (cities, towns or places voted for thereat), the Governor shall then in like time and manner cause to be held a second election at which the said two towns shall be voted for, and the town receiving the requisite majority of the votes cast at the second election shall be the county seat.

Original action to contest a county seat election by the Incorporated Town of Westville against the Incorporated Town of Stillwell and others. Judgment rendered.

Owen & Stone, for plaintiff. No copy of brief reached the reporter.

R. Y. Nance and Arnold & Weston, for defendants.-- Citing: 6 A. & E. Enc. L. 325; Bowser v. Smith, 3 Mo. 45; Daly v. Petroff, 10 Phila. 389; State Board of Freeholders, 35 N.J. Law, 269; Fowler v. State (Tex.) 3 S.W. 255; Tarbox v. Sughrue, 36 Kan. 225; Lowe v. Wheeler, 2 Ellsw. El. Cas. 61; Clark v. Robinson, 88 Ill. 504; Quinn v. Lattermore, 120 N.C. 426; Pain on Elections, sec. 360.

WILLIAMS, J.

¶1 The questions essential to be decided for a proper disposition of this case are as follows:

(1) Was the county of Adair under the act of April 17, 1908 (Sess. Laws 1907-08, p. 378, c. 31, art. 4), a necessary party to this proceeding in error for this court to acquire jurisdiction thereof?

(2) Is section 12 of said act, which provides that "every person desiring to vote at such special election, after having passed the challengers whose duties shall be the same as prescribed by law governing any general election, and being admitted to the room, shall, before being given a ballot, permit the clerks to fill out an affidavit and said intended voter shall subscribe and swear to said affidavit before the said special election commissioner, after which he shall be given a ticket and permitted to prepare same and deliver said ballot to said special election commissioner who shall, in the presence of said voter, deposit said ballot in the proper ballot box, and shall deposit the said affidavit in the box provided for that purpose," mandatory?

(3) Not more than two places, towns, or cities, being candidates in the election for the location of the county seat, and neither one receiving a majority of the votes cast, under section 6, art. 17, Const., is it the duty of the Governor to cause to be held a second election at which said two towns shall again be voted for?

1. This is in its nature a summary proceeding to contest the result of a county seat election, exclusive original jurisdiction being conferred upon the Supreme Court over all controversies arising under the provisions of the laws governing such elections, and any city, town, or place being a candidate for such county seat in such election shall have a right to a hearing before this court upon application filed within 30 days after such election shall be held. The jurisdictional requirement is that the petition be filed within 30 days. Section 16, art. 4, c. 31, p. 385, Sess. Laws 1907-08. There is no requirement by the statute that the county as a political organization shall be made a party thereto. The contest is between the rival towns as candidates for the county seat. No showing that the county is a party in interest has been made here, and, if so, it could be made a party at any time after the filing of the application within due time, even after the expiration of the 30 days. The motion to dismiss is overruled.

2. In the case of the City of Pond Creek et al. v. Haskell, Governor, et al., 21 Okla. 711, 97 P. 338, it was held that section 6, art. 17, Const., providing for the holding of elections for the relocation or removal of county seats of the different counties of the state, is self-executing, said section providing complete machinery for holding such elections, and that it was not necessary for the legislative enactments in order that the same might be enforced. The act of April 17, A. D. 1908, is therefore merely supplemental thereto. State v. Scales, 21 Okla. 683, 97 P. 584; Reeves v. Anderson et al., 13 Wash. 17, 42, 42 P. 625 P. 625. What was the purpose, then of the Legislature providing this supplemental legislation relative to county seat elections? Such location by the constitutional convention was temporary, self-enforcing machinery being provided for the relocation thereof by the respective counties, as is clearly evidenced by the fact that it is provided that after April 1, A. D. 1909, county seats, except where the petition for the election was filed prior to October 1, 1908, should be removed only by two-thirds of the votes cast in the county at such election. Section 6, art. 17, Const. In addition to the requirements of the general election law (section 3, art. 5, c. 31, p. 341, Sess. Laws 1907-08), before an elector is entitled to be given a ballot, by section 12, art. 4, c. 31, p. 382, Sess. Laws 1907-08, he must permit the clerks of the election to fill out an affidavit, and then he must subscribe and swear thereto. Additional precautions are also provided by said act, the following provisions being made: Section 6, that each town being a candidate thereat, is to select one person who, in addition to one to be appointed by the Governor, are to constitute the election board. Section 8, that the Governor is to appoint a special commissioner for each voting precinct. Section 9, that:

"No person shall be qualified and eligible to perform the duties of special election commissioner in any county, who shall be, or have been a resident of such county, or who shall be interested in any manner in the success of any city, town or place which is a candidate for any such county seat, or who shall be interested in any way or in any manner in any business proposition or institution located in any such city, town or place which is a candidate for the permanent location of said county seat."

¶2 And section 20, that:

"Any election officer who shall be appointed or commissioned under the provisions of this act or the laws of Oklahoma, and who shall knowingly and wilfully fail or refuse to perform the duties required of him shall be guilty of a felony."

¶3 The intention of the Legislature to impose the burdens, not only upon the election officers, but also upon the electors of additional duties, is apparent. This affidavit in form gives the age, race, and number of years that the elector has been a resident of the county and state, and the ward or precinct in which he then...