Johnstone v. Robertson

• Decision Date: 26 March 1904
• Docket Number: Civil 829
• Parties: C. W. JOHNSTONE, Plaintiff and Appellant, v. J. H. ROBERTSON, Defendant and Appellee
• Court: Arizona Supreme Court

76 P. 465

8 Ariz. 361

C. W. JOHNSTONE, Plaintiff and Appellant, v. J. H. ROBERTSON, Defendant and Appellee

Civil No. 829

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Affirmed.

The facts are stated in the opinion.

C. F Ainsworth, for Appellant.

The court erred in refusing to admit in evidence the votes cast in Phoenix Precinct No. 4, at polling-place in school district No. 35, for the reason that the said votes were legally cast there and were proper and material evidence in this contest, and should have been counted by the court. Dale v. Irwin, 78 Ill. 170; Preston v Culbertson, 58 Cal. 198; Farrington v. Turner, 53 Mich. 27, 51 Am. Rep. 88, 18 N.W. 544; Whipley v McKune, 12 Cal. 352; People v. Cook, 14 Barb. 290; Holland v. Osgood, 8 Vt. 280; Corliss v. Corliss, 8 Vt. 373; Marchant v. Langworthy, 6 Hill, 646; People v. Cook, 14 Barb. 259; People v. Vail, 20 Wend. 12; People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141; Election case of Wheelock, 82 Pa. St. 297; Simons v. People, 119 Ill. 617, 9 N.E. 220; Steele v. Calhoun, 61 Miss. 556; Wakefield v. Patterson, 25 Kan. (709) 495; Broadhead v. City of Milwaukee, 19 Wis. 624, 88 Am. Dec. 711.

If the law itself declares a specified irregularity to be fatal, the courts will follow that command, and in that sense such laws are strictly mandatory; but in the absence of such declaration the judiciary endeavor as best they may to discern whether the deviation from the prescribed form had or had not so vital an influence upon the proceeding as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise, it is considered immaterial. Courts justly consider the chief purpose of such laws -- namely, to obtain a fair election and an honest return -- as paramount in importance to the minor requirements which prescribe the formal steps to reach an end, and in order not to defeat the main design are frequently led to ignore such innocent irregularities of election officers as are free of fraud if they do not interfere with the full and fair expression of the voters' choice. Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 16 L.R.A. 754, 20 S.W. 101; Davis v. State, 75 Tex. 420, 12 S.W. 957; Stemper v. Higgins, 38 Minn. 222, 37 N.W. 95; Parvin v. Wimberg, 130 Ind. 561, 30 Am. St. Rep. 254, 15 L.R.A. 775, 30 N.E. 790; City of Chicago v. People, 80 Ill. 496; Peard v. State, 34 Neb. 372, 51 N.W. 828; Ex parte White, 33 Tex. Cr. 594, 28 S.W. 542; Roper v. Scurlock, 29 Tex. Civ. App. 464, 69 S.W. 456.

Walter Bennett, for Appellee.

That the changing of the place for holding the election in the manner done in this case was illegal, see Knowles v. Yates, 31 Cal. 83; Tebbe v. Smith, 108 Cal. 111, 112, 49 Am. St. Rep. 68, 41 P. 454, 29 L.R.A. 673; Atkinson v. Lorbeer, 111 Cal. 424, 44 P. 162; Russell v. McDowell, 83 Cal. 70, 23 P. 183; Melvin's Case, 68 Pa. St. 333; Heyfron v. Mahony, 9 Mont. 497, 24 P. 93; Williams v. Potter, 114 Ill. 628, 3 N.E. 729; Snowball v. People, 147 Ill. 260, 35 N.E. 538; Morrison v. Markham, 78 Ga. 161, 1 S.E. 425.

OPINION

DOAN, J.

This is a contest of the election of the appellee, J. H. Robertson to the office of justice of the peace of Phoenix Precinct, at the general election held November 4, 1902. The only question involved in this appeal is the admissibility of the votes cast at school district No. 35, that being one of the polling-places within the election precinct designated as "Phoenix Precinct No. 4." All the votes were recounted by the court. No question is now raised by appellant as to the action of the court in admitting or rejecting any of the other ballots offered in evidence, but merely as to the action of the court in rejecting the twenty ballots found by the court to be valid as far as their form is concerned, which were cast at school district No. 35, and which the court rejected because there was a non-compliance with the law, in the opinion of the court, in that particular polling or election precinct, in that the votes were received at a place other than the one designated by the board of supervisors as a polling-place in that precinct. The place designated was the schoolhouse in school district No. 35, and the place where the votes were actually cast and received was at a house known as "Heard's Ranch House," in the same precinct, but about half a mile distant from the schoolhouse. It appears from the record that the regular election board as appointed by the board of supervisors presided at the election held at the ranch house, and that the proceedings were in all respects proper and regular, except as to the place of holding the election. The ranch house at which the election was held was about half a mile distant from the schoolhouse, and in plain view therefrom. The witnesses for the contestant testified that the election was not held at the schoolhouse in that precinct because school was in session there that day. The only evidence in the record of any notice given of any change in the place of holding the election was the testimony of Larsen, one of the judges of the election. He stated that "some children (who attended the school) came back by our place every day, and they were notified some six or seven days ahead." Our statutes (Rev. Stats. 1901) provide (par. 2305): "The board must, at least fifteen days prior to an election, issue its order designating the house or place within each precinct where the election must be held." Paragraph 2306: "If the board fail to designate the house or place for holding the election, or if it cannot be held at the house or place designated, the justice of the peace in the precinct must, two days before the election, and by an order under his hand (copies of which he must at once post in three public places in the precinct), designate the house or place, or if there be no justice of the peace there, the election board, by similar notices posted as in this section provided, may designate the place." It appears from the record that the board issued its order in accordance with paragraph 2305, designating the house within this precinct where the election must be held. There is nothing in the record to indicate that the election could not have been held at the house designated, further than the opinion or conclusion of the election board; and that was evidently arrived at some days prior to the day of election, because it was stated that they notified the school children "some six or seven days ahead." It does not appear from the record that an order designating the place at which the election would be held was made by the justice of the peace in the precinct two days before the election, or that, there being "no justice of the peace there, the election board, by similar notices," posted as provided in paragraph 2306, "designated the place." It is the general rule, to which there are very few exceptions, that the statutes relative to the time and place of holding an election are mandatory, and that an election held at any other than the designated place is absolutely void without proof of any fraud or injury. The sole exceptions we have found to this rule are those cases where the impossibility of holding the election at the place fixed by law was discovered immediately before the election, at a date too late to render possible a compliance with the law in the designation of another place. Dale v. Irwin, 78 Ill. 170; Preston v. Culbertson, 58 Cal. 198. This latter feature does not enter into the case under consideration. We have no evidence in the record that the election board repaired to the schoolhouse on...