Inc. v. Town of Waurika
| Decision Date | 14 November 1911 |
| Docket Number | Case Number: 408 |
| Citation | 119 P. 220,29 Okla. 655,1911 OK 396 |
| Parties | INCORPORATED TOWN OF RYAN et al. v. TOWN OF WAURIKA et al. |
| Court | Oklahoma Supreme Court |
¶0 1. COUNTIES--County Seat Elections--Illegal Ballots--Counted as "Votes Cast." That part of the act of April 17, 1908 (section 12), providing that "every person desiring to vote at such special election, after having passed the challengers . . . and being admitted into the room shall, before being given a ballot, permit the clerks to fill out an affidavit and . . . shall subscribe and swear to said affidavit before said election commissioner, after which he shall be given a ticket . . ." construed with an act approved May 29, 1908, S. B. 23, art. 7, sec. 5, Sess. Laws of Okla. 1907-8, is mandatory. And where the election inspector on the morning of the election placed said blank affidavits, part of the election supplies, in the hands of third persons who, with the knowledge of, and without objection from, the election officials, were permitted by each voter to fill out for and hand him one of said blank affidavits at a table 100 feet from the polls, as he passed thereby on his way to vote, and which, in the room, after passing the challengers and before being given a ticket, he signed and swore to before the special election commissioner, with knowledge of the contents, after which he was given a ticket and then and there voted--held that said ballot is illegal and cannot be counted for any town as a candidate for the county seat at such election, but may be counted for the purpose of determining the total number of votes cast at such election, and the required majority for the removal of the county seat.
2. SAME--Effect of Discrediting Returns--Burden of Proof. Where the prima facie character of the returns of a precinct is destroyed, the election therein does not necessarily become a nullity, but the burden of proof then shifts and makes it necessary that the side claiming any benefit from the votes shall prove them. It is only where no proof is offered, and the frauds are of such a character that the correct vote cannot be determined that the returns of the precinct will be rejected.
Original proceeding in injunction. Injunction made perpetual.
W. A. Ledbetter, Gilbert & Bond, and Jones & Green, for plaintiffs
Devereux & Hildreth, Bridges & Vertrees, and Robberts & Curran, for defendants
¶1 The Constitutional Convention located the temporary county seat of Jefferson county at the town of Ryan. On June 30, 1908, an election was held in said county for the purpose of locating the county seat thereof pursuant to section 6, article 17, of the Constitution and an act approved April 17, 1908, Session Laws of Oklahoma 1907-8, pp. 378-387, in which said election there were three candidates--Ryan, Sugden, and Waurika. No one of these having received a majority of the votes cast, and Sugden receiving the lowest number of votes, on September 9, 1908, a second election was had. The returns of that election show that Ryan received 1,500 votes and Waurika 1,736 votes, giving Waurika a majority of 236. These returns were certified to the Governor of the state, whose duty it is, under the Constitution, to canvass the same and declare the result and "cause the will of the electors to be carried into effect."
¶2 On September 21, 1908, plaintiffs filed in this court an original proceeding assailing the correctness of the returns at the Terral and Waurika precincts, on the ground of fraud and illegality, and to secure a restraining order against defendants, the county officers of Jefferson county, preventing them from removing, or attempting to remove, the records of their several offices from the town of Ryan to Waurika, alleging the fact to be that Ryan had received a majority of the votes cast in said election, and praying that it be declared the duly elected permanent county seat of that county. Later this court appointed Hon. C. A. Galbraith as referee, who took testimony and filed his report herein in favor of Waurika and recommended a dissolution of said injunction and that said town be declared the permanent county seat of said county.
¶3 Assailing the validity of the 686 votes cast at the Waurika box, it is contended by counsel for Ryan that the same should have been by the referee excluded from the count, for the reason the record discloses that the inspector, on the morning of the election and before the polls were open, turned over the blank affidavits provided by section 12 of the act aforesaid to a partisan of Waurika, who, with the assistance of others, filled one of them out for the voter and handed the same to him at a table without the roped chute some 100 feet from the voting booth, as he passed thereby on his way to the booth to vote. It is contended that by thus participating in a violation of the law, making it an offense for any person to have election supplies outside the enclosure wherein the election was required to be held (Act approved May 29, 1908, S. B. 23, art. 7, sec. 5, Sess. Laws 1907-8), the voter, besides being punishable for such participation, in effect refused to permit the clerks of election to fill out for him said affidavit after he had passed the challengers and after being admitted into the room and before being given a ballot, and which, it is further contended, was a violation of said section, which, they say, in so far as the same requires that the voter, "after having passed the challengers * * * and being admitted into the room, shall, before being given a ballot, permit the clerks to fill out an affidavit and * * * shall subscribe and swear to said affidavit before said special election commissioners, after which he shall be given a ticket * * *" is mandatory, and hence none of the votes in that box should be counted. By making it an offense to have election supplies outside the enclosure, the law, in effect, prohibited their use by the voter outside thereof, and said to him by section 12, supra:
¶4 Section 6, article 7, of the Constitution being self-executing, elections for the relocation or changing of county seats could have been held without this special act of April 17, 1908, supra. Obviously, the Legislature had a purpose, then, in enacting a special statute supplementary to said section of the Constitution. Courts are not at liberty to treat statutes as directory that were intended by the Legislature to be mandatory. The law is the master of the courts, and it is the duty of the judges to follow the mandates of the law.
¶5 What did the Legislature mean when it said that every voter desiring to vote at such special election, after having passed the challengers and being admitted into the room, shall, before being given a ballot, permit the clerks to fill out an affidavit before said special election commissioner--that after having passed the challengers and being admitted into the room, but after the affidavit is filled out before said special election commissioners in said room, he shall be given a ticket? Why does the Legislature exercise such care in the selection and use of this language? It is presumed to mean just what it says. Every elector that voted had, as a matter of law, knowledge of this statute, and the only effect the court's action will have, in giving effect to this provision, is to cause another election. Such electors are not deprived of their right to participate in the final selection of a county seat; but, under these mandatory provisions, they are required to vote in the manner and form as therein pointed out, before their votes shall be counted. Where they make an honest effort to vote, but fail to comply with these mandatory provisions, such votes amount to votes cast, but not votes counted. The place or town finally prevailing must have counted for it a majority of the votes cast. The result is that, where no place gets a majority of the votes cast counted for it, another election is held, and such continues to be the procedure until a place gets a majority of the votes cast counted for it.
¶6 The wisdom of this special election law for the location of county seats was solely for the determination of the Legislature. The Legislature having acted, and having hedged around the holding of such elections such provisions, mandatory in their nature, and especially so in the light of the history of this legislation, we are not permitted to disregard the same, howsoever we may dislike to order a new election and entail the expense of the same upon this county.
¶7 That this section is mandatory, and certainly when construed with the section of the act, supra, is no longer an open question in this jurisdiction.
¶8 In Incorporated Town of Westville v. Incorporated Town of Stillwell et al., 24 Okla. 892, 105 P. 664, we said:
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