Newhouse v. Alexander, Case Number: 445

• Court: Supreme Court of Oklahoma
• Writing for the Court: TURNER, J.
• Citation: 1909 OK 143,110 P. 1121,27 Okla. 46
• Parties: NEWHOUSE v. ALEXANDER.
• Docket Number: Case Number: 445
• Decision Date: 08 June 1909

1909 OK 143
110 P. 1121
27 Okla. 46

NEWHOUSE
v.
ALEXANDER.

Case Number: 445

Supreme Court of Oklahoma

Decided: June 8, 1909

Syllabus

¶0 1. QUO WARRANTO--Scope of Jurisdiction--Constitutional Provisions. The Constitutional Convention by providing in article 7, sec. 2, Const., that the Supreme Court, and in section 10 of the same article that the district courts, shall have power to issue writs of quo warranto, looked rather to the substance than to the form, and simply meant not so much to give those courts power to issue writs of a prescribed form, but to solemnly fix the ancient remedies secured by that writ, and leave it to the Legislature to prescribe any new process or procedure to invoke those remedies in the courts, and to amplify and extend the remedies theretofore obtainable in the form of the ancient writ.

2. ELECTIONS--Preservation of Ballots--Statutory Provisions--Contest--Ballots as Evidence. That part of Sess. Laws Okla. 1905, c. 17, art. 1, sec. 8, which provides that "said ballot package shall be preserved by the county clerks in some secure and safe place," is not mandatory. Where the ballots are preserved so that their identity is assured, they can be counted during a contest; and they are undoubtedly better evidence of the vote cast than the returns, and should prevail where there is a difference. But, before a recount of the ballots should be allowed to rebut the presumption of the correctness of the official returns, it should be proved satisfactorily that the ballots have not been tampered with since the election, and that those offered in evidence are the identical ones cast.

3. SAME--Sealing of Ballots, That part of Sess. Laws Okla. 1905, c. 17, art. 1, sec. 8, which provides that "all of the ballots counted and one certificate. one poll book and one tally sheet shall be securely sealed in a stout paper or muslin envelope or bag," is not mandatory, and when the ballots at the close of the count were placed in a large paper envelope, and the envelope was not sealed with the names of the election judges written across the seal, but was folded over at the end and sewed through with a needle and twine string, and the envelope containing the ballots was placed in the box and locked, and the ballots produced in court were the identical ballots voted by the voters of the precinct in question, and in the identical condition that they were when placed in the envelope by the election officers of the precinct, held, that the court did not err in admitting the same in evidence to rebut the presumption of the correctness of the official returns.

4. ELECTIONS--Exclusion of Mutilated Ballots--Statutory Provisions. That part of Sess. Laws Okla. 1905, c. 17, sec. 8, which provides, "If in the canvass of the votes, any ballot is found not endorsed with the initials of the poll clerks as provided, and any ballots which bear any distinguishing mark, or on which any writing appears with pen or pencil, and any ballot upon which the judges are unable to agree as to how it shall be counted, the same shall not be counted but shall be designated as mutilated ballots and shall be preserved and kept separate from the ballots counted. * * *" is mandatory, and all ballots which do not comply therewith were properly excluded by the court as evidence to rebut the presumption of the correctness of the official returns.

W. W. Witten, B. T. Buchanan, and J. L. Maynard, for plaintiff in error.--On exclusion of ballots lacking poll clerk's initials: Moyer v. Van de Vanter, 12 Wash. 377; Harning v. Burgess, 119 Mich. 51; Bennington v. Hare, 60 Minn. 146; Buckner v. Lynip (Nev.) 41 P. 762; Town of Eufaula v. Gibson, 22 Okla. 507; McCrary on Elections (4th Ed.) p. 521.

F. F. Lamb, Belford & Hiatt, and Mark L. Bozarth, for defendant in error.--On same question: Boyd v. Mills, 53 Kan. 594; 10 A. & E. Enc. L. 726; Parvin v. Wimburg, 130 Ind. 561; State v. Russell (Neb.) 51 N.W. 466; McCrary on Elections (4th Ed.) secs. 225, 226; Kirkpatrick v. Canvassers (W. Va.) 44 S. E. 465; Mauck v. Brown, 59 Neb. 382; Orr. v. Bailey, Id. 128; Lorin v. Seitz, 8 N.D. 404; Kelso v. Wright, 110 Iowa, 560; McKay v. Minner, 154 Mo. 608, Slaymaker v. Phillips, 5 Wyo. 453. Rhodes v. Driver, 69 Ark. 501; People ex rel. v. Canvassers, 129 N. Y. 395; Keller v. Touline (Miss. ) 7 So. 508; State v. Connor, 86 Tex. 133.

Error from District Court, Okmulgee County; George L. Mann, Special Judge.
Action by Marvin M. Alexander against J. L. Newhouse. Judgment for plaintiff, and defendant brings error. Affirmed.

W. W. Witten, B. T. Buchanan, and J. L. Maynard, for plaintiff in error

F. F. Lamb, Belford & Hiatt, and Mark L. Bozarth, for defendant in error

TURNER, J.

¶1 At the election held in the proposed county of Okmulgee, in the proposed state of Oklahoma, on September 17, 1907, for the election of state and county officers, J. L. Newhouse, plaintiff in error, defendant below, and Marvin M. Alexander, defendant in error, plaintiff below, were rival candidates for judge of the county court of that county. On the face of the returns as certified by the board of canvassers Alexander received 1,367 votes and Newhouse received 1,384 votes for said office, whereupon Newhouse was declared elected, and certificate of election issued to him. He thereupon qualified and took possession of said office and was proceeding to hold the same when Alexander commenced this action against him in the district court of that county, which said action is in the nature of a quo warranto to try the title of that office. After answer and reply, the cause was submitted by agreement to the Honorable George L. Mann, special judge, for trial, who thereupon proceeded to take testimony from which he made findings of fact and conclusion of law and rendered judgment in favor of Alexander, declaring him legally elected judge of the county court of that county and entitled to immediate possession of said office and ousted Newhouse therefrom, from which said judgment after motion for a new trial filed and overruled said Newhouse appeals. It is first contended by Newhouse that the court was without jurisdiction to try this cause for the reason that the writ of quo warranto and proceedings by information in the nature of quo warranto, abolished by Wilson's Rev. & Ann. St. Okla. 1903, § 4848, revives, by sections 2 and 10 of article 7 of the Constitution, the ancient writ of quo warranto, which makes it the sole remedy of Alexander in this cause. If such is the effect of said provisions when construed together, then Alexander is without remedy, for the reason that the functions of the ancient writ were limited to matters publici juris, and the same was not available for the trial of purely private rights. 23 Am. & Eng. Enc. of Law, 598. There is no conflict in said provisions, and nothing in this contention. We take it that the Constitutional Convention, by providing in article 7, § 2, Const. , that the Supreme Court, and in section 10 of the same article that the district courts, shall have power to issue writs of quo warranto, looked rather to the substance than to the form, and simply meant not so much to give those courts power to issue a writ of a prescribed form, but to solemnly fix the ancient remedies secured by that writ, and leave it to the Legislature to prescribe any new process or procedure to invoke those remedies in the courts, and to amplify and extend the remedies theretofore obtainable in the form of the ancient writ. This was done by Wilson's Rev. & Ann. St. Okla. 1903, art. 29, under the head of "Procedure Civil," which, in effect, provides that the remedies theretofore obtainable in that form might be had by civil action, and extends the remedy so as to permit a private person to contest with another private person the right or title to a public office. On this subject in State ex rel. Attorney General v. Messmore, 14 Wis. 115, the court said:

"It was insisted that section 3 of article 7 of the Constitution only gave this court power to issue the writ of quo warranto at the common law; that the statutes of 1849 abolished the common-law writ and substituted the proceedings by information; that the present statute abrogated both the writ and the information, and declared a civil action to be the only remedy, and, as it was a mere civil action, it could not be entertained. We consider that the framers of the Constitution looked rather to the substance than the form; that their object was not so much to give us power to issue a writ of a prescribed form, as to enable us to hear and determine controversies of a certain character; and that this jurisdiction could not be taken away by any legislative changes in the forms of the remedy, but that we might adopt any new process which was calculated to attain the same end."

¶2 We are therefore of the opinion that the lower court had jurisdiction to try this cause. On the trial Alexander, in support of the allegations in his petition, assumed the burden of proof to rebut the presumption of the correctness of the official returns, inter alia, of precinct No. 1, Seevers township, and to show that the ballots from that township were the identical ones before the court, and that the statutory provisions concerning their custody had been complied with, or, if not, that they had not been tampered with, and that they should be received in evidence for that purpose. At the close of the testimony on both sides the court opened the ballot box containing said ballots and made with reference to them the following findings of fact:

"(4) That at precinct No. 1, Seevers township, there were counted, certified, and returned by the election board of said precinct 133 votes as having been cast for the office of judge of the county court of said county, of which 20 ballots were counted, certified, and returned for plaintiff, and 113 ballots for the defendant.

"(5) The court finds from the evidence that during the count in precinct No.

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