Ledbetter v. Kimsey

• Decision Date: 29 July 1913
• Docket Number: Case Number: 2172
• Citation: 38 Okla. 671,1913 OK 492,134 P. 868
• Parties: LEDBETTER v. KIMSEY.
• Court: Oklahoma Supreme Court

1913 OK 492

134 P. 868

38 Okla. 671

LEDBETTER v. KIMSEY.

Case Number: 2172

Supreme Court of Oklahoma

Decided: July 29, 1913

Syllabus

¶0 ELECTIONS--Contest--Burden of Proof. One who seeks to have an election declared void and set aside upon the ground that, by irregularities and fraudulent misconduct of the election officers, certain persons were prevented from registering and voting, must allege and prove that such persons were qualified voters, and that, had they been permitted to register and cast their votes, the number thereof was so great that, if they had cast their votes for the next highest candidate, the result of the election would have been changed.

Thos. H. Owen and J. C. Stone, for plaintiff in error.

A. A. Davidson, for defendant in error.

WILLIAMS, J.

¶1 Defendant in error, hereinafter referred to as relator, commenced an action in quo warranto against the plaintiff in error, hereinafter referred as respondent, to try the title to the office of marshal of the city of Muskogee. The relator alleged that a certain municipal election held in said city on April 27, 1909, was void, and by virtue of being the incumbent at the time of said election, as well as a candidate to succeed himself at said election, he was entitled to continue to hold said office until a successor was elected. Judgment of ouster against respondent was rendered in favor of the relator. At said election the relator received 1,368 votes as against the respondent's 1,682. In Martin v. McGarr, 27 Okla. 653, 117 P. 323, 38 L.R.A. (N.S.) 1007, it was held that:

"(a) An action, brought for the purpose of having an election declared void, will not be sustained by showing merely the reception of illegal ballots. An election is held void in those cases only where it is impossible to separate the valid from the invalid ballots and the correct result is impossible of determination.

"(b) An election is void where qualified electors are corruptly and fraudulently deprived of an opportunity to register and vote sufficient in number, had all been counted for the next highest candidate, to have changed the result of the election."

¶2 It is alleged by counsel for respondent that the evidence, as disclosed by the record, does not show that the persons who were refused the right to register were in fact legal voters, and the burden was upon the relator to show such fact. It matters not how many irregularities may be charged, unless legal voters are prevented from registering and participating in the election to the extent of changing the result of the election, especially in view of the fact, when it is not controverted, that the votes actually cast and counted were legal, a court is not justified in holding the election invalid and setting aside the result of the declared choice of the people and defeating the result of their selection. In Snyder v. Blake, 35 Okla. 294, 129 P. 34, it...