Looney v. Election Bd. of Seminole County
| Decision Date | 18 October 1930 |
| Docket Number | 21789. |
| Citation | 293 P. 1056,146 Okla. 207,1930 OK 461 |
| Parties | LOONEY v. COUNTY ELECTION BOARD OF SEMINOLE COUNTY (CRUMP, Intervener). |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 16, 1930.
Syllabus by the Court.
Prohibition is not writ of right, but of discretion; on application for writ of prohibition, court must consider established policies of other co-ordinate branches of government and give effect thereto, unless manifest injustice results.
Prohibition is not a writ of right, but is one of discretion, and, when the court is called upon to exercise its discretion on an application for such writ, it must take into consideration the established policies of the other co-ordinate branches of the government and give effect to them, unless, by so doing manifest injustice would result therefrom.
Statute prescribing method of preserving ballots held directory only, and substantial compliance therewith authorizes recount in election contest (Comp. St. 1921, § 6155; Laws 1929 [Sp. Sess.] c. 241, § 6).
Section 6155, C. O. S. 1921, which provides, among other things, that the ballots be strung and tied and the knot sealed, that they shall then be sealed in envelopes and a seal of sealing wax shall be placed upon the gummed flaps, that the clerk and judge shall write their names across the gummed flaps of each envelope, etc., is not mandatory, but directory only, and a substantial compliance therewith (other necessary facts appearing) is all that is necessary in order to entitle the ballots to be recounted in an election contest.
Notwithstanding ballots in boxes which were opened for recount were not in exact condition as when placed therein, they were admissible in evidence; weight and credit thereof and tampering therewith being for fact trier (Laws 1929 [Sp. Sess.] c. 241 § 6).
Although the ballots contained in the boxes, when opened for recount are not in the exact condition which the precinct officers testified that they placed them, nevertheless such ballots are admissible in evidence, and whether or not they have been tampered with and the weight and credit to be given thereto are for the jury or for the trier of the facts.
To entirely destroy integrity of ballots in recount proceedings it must appear they were exposed to reasonable opportunity for tampering (Laws 1929 [Sp. Sess.] c. 241, § 6).
In order to entirely destroy the integrity of the ballots, in a proceeding for recount, it must not only appear that they have been exposed to the reach of unauthorized persons, but it must also appear that such exposure afforded a reasonable opportunity for such ballots to have been changed or tampered with. The fact that they might possibly have been tampered with does not warrant their rejection.
In prohibition proceeding, Supreme Court will review evidence constituting basis of recount only to determine whether there was any evidence to sustain county election board's findings and conclusions (Laws 1929 [Sp. Sess.] c. 241,§ 6).
On an application for writ of prohibition to prohibit the county election board from tabulating a recount and certifying the result thereof to the state election board, where said board has heard the evidence and entered findings and conclusions which are sufficient to entitle it to recount the ballots this court will review the evidence only for the purpose of determining whether or not there was any evidence to sustain such findings and conclusions, but will not weigh the same to determine where the preponderance lies.
Findings of county election board making election recount held sustained by some evidence and therefore not reviewable (Laws 1929 [Sp. Sess.] c. 241, § 6).
Record examined, and held, that there was some evidence to support the findings and conclusions of the county election board, and held further, that the court will decline to exercise its discretion to interfere therewith in the instant case.
Original proceeding for writ of prohibition by Joseph C. Looney against the County Election Board of Seminole County; George C. Crump, intervening. Alternative writ quashed, and cause dismissed.
Irvin L. Wilson, C. Guy Cutlip, and V. R. Biggers, all of Wewoka, for petitioner.
B. B. Blakeney, of Oklahoma City, and A. S. Wells, of Wewoka, for respondents.
This is the third prohibition proceeding from Seminole county instituted in this court by the petitioner, Joseph C. Looney, and growing out of the primary election held on July 29, 1930, wherein the petitioner and George C. Crump, the intervener herein, were candidates for nomination by the Democratic Party as district judge for the Ninth judicial district of this state.
In the first proceeding, entitled Looney v. County Election Board of Seminole County et al., No. 21575, 291 P. 554, 558, this court issued a writ of prohibition to the county election board of Seminole county, prohibiting it from recounting any of the ballots cast at the primary election in that county for the office of district judge of the Ninth judicial district until such time as it was made to appear to the board, from evidence, that the ballots sought to be recounted "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with."
After the issuance of this writ, the county election board of Seminole county convened and heard the testimony of many witnesses, most of whom were precinct election officials and members of the county election board of said county. At the conclusion of this hearing, the county election board made its determination as follows:
One of the members of the county election board dissented therefrom.
After that determination was made, the election board proceeded to count certain ballots cast for the Democratic nomination for district judge. However, before the board had made any change in the tabulation of the vote cast or had certified the same for the office of district judge to the state election board, the petitioner commenced a second proceeding in this court, which is entitled Looney v. County Election Board of Seminole County et al., No. 21727, 292 P. 44.
In this last-mentioned case this court held that the county election board had acted in violation of the writ of prohibition issued in the former case, in that its findings did not conform to the demands of the writ requiring "that the ballots 'had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with,"' and, in the absence of such finding, the board was without authority to recount the ballots. This second writ prohibited the county election board from making any change in the official returns of the several precincts in Seminole county for the office of district judge in the general primary election, held on July 29, 1930, and from recounting the ballots cast at said election until the finding and determination required by this court in its writ of prohibition in cause No. 21575 had been made.
After the issuance of this writ, the county election board again convened on October 3, 1930, and proceeded to hear evidence and make another finding. At this last hearing all the testimony which had been taken in the former hearing was introduced and certain additional testimony heard. At the conclusion of this...
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