Martin v. McGarr

• Decision Date: 13 September 1910
• Citation: 117 P. 323,27 Okla. 653,1910 OK 278
• Parties: MARTIN v. McGARR.
• Court: Oklahoma Supreme Court

117 P. 323

27 Okla. 653, 1910 OK 278

MARTIN v. McGARR.

Supreme Court of Oklahoma

September 13, 1910

Rehearing Denied Jan. 3, 1911.

Syllabus by the Court.

Under the terms of section 3106.Compiled Laws of Oklahoma 1909, it is the duty of the county election board, in creating or altering voting precincts, to include therein only such territory as shall be within a ward or township, and to change the boundaries of any precinct by dividing or consolidating two or more into one when public convenience or public good may require it, and such duty on the part of said board is enforceable, under the specific terms of said act by mandamus by any qualified elector of the county.In the event of failure on the part of said board to act in accordance with the terms of the said statute the remedy afforded the electors is mandamus to secure a correction of the same.Where the board fails to perform its duties in a legal manner and mandamus has not been invoked to require it the election will not be held void because qualified electors are denied the privilege of registering or voting.

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.

Under section 3202,Comp. Laws of Oklahoma 1909, it is the duty of the electors of precincts failing to receive the election supplies to proceed, under its terms and provisions, to prepare ballots, boxes, etc., and to hold an election as nearly as may be in conformity with the law, and where in such case they fail or neglect to do so, they will be held to have been parties to their own disfranchisement, and the election will not be held void on that account.

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.

(Additional Syllabus by Editorial Staff.)

A voter who is denied the right of casting his vote cannot be heard to say for whom it would have been cast.

Error from District Court, Muskogee County; John H. Pitchford Judge.

Action by T. H. Martin against A. F. McGarr.Judgment for defendant, and plaintiff brings error.Reversed and remanded.

W. H. Kornegay, W. G. Robertson, Geo. S. Ramsey, Geo. A. Murphey, and A. A. Davidson, for plaintiff in error.

Bailey & Wyand and Owen & Stone, for defendant in error.

DUNN C.J.

This is an action in the nature of quo warranto brought to try the title to the office of mayor of the city of Muskogee, and grows out of an election held in that city on April 27, 1909.The plaintiff, who is also the plaintiff in error, was elected mayor on April 2, 1907, for a term of one year and until his successor was duly elected and qualified.Under this election he took possession of the office and remained therein until November 17, 1907, and from and after that date, by virtue of the Constitution and laws of the state of Oklahoma, he continued as mayor of the said city and is now claiming, on grounds hereinafter noted, that he is still entitled to hold and occupy the office.At the election held April 27, 1909, there were three candidates for mayor, Ira L. Reeves, Republican.A. F. McGarr, Democrat, and L. C. Northcutt, Socialist.At said election 3,105 votes were cast for the office of mayor, and the county election board of Muskogee county, on a canvass thereof, determined that A. F. McGarr, the defendant in error, had received a plurality of 14 votes and declared him elected, and issued to him a certificate of election to that office.The petition avers that under the said certificate he has taken possession and continues to exercise the functions of the office and to exclude plaintiff therefrom.It is plaintiff's contention that, by reason of the various acts of the election officials who conducted the election, a sufficient number of qualified voters were corruptly and fraudulently denied the right to vote to change the result of the election, and that, by reason thereof, the election was void; that, in effect, no election was held, and that he is entitled to continue in the office of mayor under and by virtue of the terms of his first election.To his petition the defendant McGarr filed a demurrer, and, on the same being sustained by the trial court, the cause has been brought to this court by petition in error and case-made.

The petition is voluminous, covering something over 45 typewritten pages, and presents for our consideration a multitude of charges under which plaintiff contends in excess of 500 qualified electors residing in that city were disfranchised, over 100 of whom duly presented themselves for voting and were denied ballots.Plaintiff's attitude is not that of a contestant for the office of mayor, as no votes were cast for him; his contention is that the election is void, and of no force and effect whatsoever, and that this condition was brought about, among other things, by the deliberate, corrupt, and fraudulent conduct of the election officials, in consequence of which a sufficient number of qualified electors of the city, tendering themselves for the purpose of exercising the right of franchise, were denied the privilege to nullify the election.A comprehensive view of the averments of plaintiff's petition causes them to naturally fall into three parts, which may be disposed of as follows: First, as it is manifest plaintiff cannot be heard to plead an irregularity which does not have the effect of rendering the election void, those averments relating merely to the admission of illegal votes must be eliminated; second, those irregularities, the remedy for which is plainly provided for and set forth in the statute available to plaintiff and the electors prior to the election, and which was not pursued, must be held on the part of plaintiff in error to have been waived; third, those averments relating to the alleged corrupt and fraudulent denial of the right to register and to vote to qualified electors sufficient in number to effect the nullification of the election.We will deal with these propositions in the order here presented.

While a contestant in an election may always object to the counting and consideration of fraudulent or illegal votes, yet the reception of the same will in no instance result in the avoidance of the election except where the entire poll is so tainted that the good votes cannot be separated from the bad, and it is impossible to ascertain for whom the majority of the valid ballots were cast.The general rule obtaining throughout all the states of the union is that an election is not to be held invalid except as a last resort, the correct doctrine being announced by Judge Brewster, in the case of Batturs v. MeGary, 1 Brewst.(Pa.) 162, as follows: "The court have the power to reject an entire poll, but only in the extremest case--as where it is impossible to ascertain the true vote.Impossibility is the test."The rule thus annunciated finds support in the following authorities: McCrary on Elections(4th Ed.) § § 523, 524;Paine on Elections, § 513;10 Am. & Eng. Ency. of Law, p. 770;Windes v. Nelson,159 Mo. 51, 60 S.W. 129;Ferguson v. Allen, 7 Utah, 263, 26 P. 570;Woolley, etc., v. Louisville Southern Ry. Co.,93 Ky. 223, 19 S.W. 595;State ex rel. Kellogg, Atty. Gen., v. Sullivan et al.,44 Kan. 43, 23 P. 1054;Attorney General ex rel. Seavitt v. McQuade,94 Mich. 439, 53 N.W. 944.In the case last cited, the same doctrine is stated, by the Supreme Court of Michigan, with numerous authorities to sustain it, as follows: "When fraud on the part of the officers of election is established, the poll will not be rejected, unless it shall prove impossible to purged it of the fraud."Under this rule, therefore, plaintiff cannot raise the question of the reception of illegal ballots and insist that the election be held void on this account, for, should they be established, the consequence would not be to avoid the election, but to reduce the votes to those which were legal and valid and from which the result would be determined.There is no averment that they could not be eliminated and the true result ascertained.Their rejection might result in the election of another man mayor, but he must speak for himself--plaintiff cannot sue for him.

Within the rule laid down under the second proposition, in our judgment all of plaintiff's averments in reference to ward 4 will fall.Plaintiff complains that the county election board unlawfully failed and refused to recognize certain ward boundaries of the city of Muskogee as established by an ordinance of the city council; that in such action several precincts were thrown partly in one ward and partly in another and that the county election board refused to readjust the boundaries thereof, the consequence of which was that 400 voters residing in the territory thus affected were disfranchised.It is further charged that this action on the part of election officials was deliberately done with the intent to defraud the voters residing in this ward out of their votes.Counsel for defendant insist that the action or the election board was in strict conformity with the law and that the alteration of ward boundaries by the city council was void.As we viewthis case, it is of no consequence at this time whether the action of the election board in refusing to recognize the ward boundaries was correct or not.The statute under which the election board acted is section 3106,Comp. Laws of Okla. 1909; herein it is made the duty of the...