Quigley v. Phelps

• Decision Date: 10 June 1913
• Citation: 132 P. 738,74 Wash. 73
• Parties: QUIGLEY v. PHELPS.
• Court: Washington Supreme Court

132 P. 738

74 Wash. 73

QUIGLEY v. PHELPS.

Supreme Court of Washington

June 10, 1913

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Proceeding to contest an election by Andrew J. Quigley against Byron Phelps. From a judgment dismissing the proceeding, the contestant appeals. Affirmed.

Geo. H. Rummens, of Seattle, for appellant.

W. W White, Edgar C. Snyder, and Kitt Gould, all of Seattle, for respondent.

ELLIS J.

This is an appeal from a judgment dismissing a proceeding to contest an election. It involves the same proceeding a review of which by certiorari was sought and denied in State ex rel. Quigley v. Superior Court, 129 P. 83.

The contestant, claiming to have been elected county auditor of King county at the last general election, instituted proceedings in the superior court of King county against Byron Phelps as defendant to set aside the certificate of election issued by the canvassing board declaring the defendant elected to that office.

As pointed out by the trial court, the proceeding is not in quo warranto either as at common law or as given by our analogous statutory action. It is not an action to oust an intruder or a usurper, but to try out the right to a prospective official term. It is not founded upon, nor aided by, any common-law right. The right to a contest such as here presented rests solely upon, and is limited by, the provisions of the statute relative thereto. Rem. & Bal. Code §§ 4941 to 4957, inclusive.

By this statute (section 4941) a contest as to a county office may be instituted, not only by a defeated candidate, but by a qualified elector of the county; but only for the following enumerated causes: '(1) For malconduct on the part of the board of judges or any member thereof; (2) when the person whose right to office is contested was not, at the time of election, eligible to such office; (3) when the person whose right is contested shall have been, previous to such election, convicted of an infamous crime, by any court of competent jurisdiction, such conviction not having been reversed, nor such person relieved from the legal infamy of such conviction; (4) when the person whose right is contested has given to any elector or inspector, judge or clerk of the election, any bribe or reward, or shall have offered any such bribe or reward for the purpose of procuring his election; (5) on account of illegal votes.' The complaint or statement of contest in the case before us alleges the ground of contest as follows: 'That in each and every of said precincts of said county the said board of judges of elections thereof wrongfully, fraudulently, intentionally, and unlawfully counted and recorded in the official tally sheet of said several precincts for the said defendant votes which were given and cast for this plaintiff, and in each and every of said precincts the said board of judges of election thereof wrongfully, fraudulently, willfully, and unlawfully failed and neglected and omitted to count for and to enter upon the tally sheets votes which were given and cast for the plaintiff.' It is also alleged that in truth and in fact there were more votes cast for the plaintiff than for any other person for the office in question, and that he was duly elected to the office. It is admitted that the returns show that the defendant received in the neighborhood of 600 more votes than the plaintiff. It is manifest that, if any cause of action was stated, it rested upon the first of the above-enumerated statutory grounds, namely, 'malconduct on the part of the board of judges or any member thereof.' The statute (Rem. & Bal. Code, § 4948) provides that the statement of cause shall not be rejected for want of form, 'if the particular cause or causes of contest shall be alleged with such certainty as will sufficiently advise the defendant of the particular proceedings or cause for which such election is contested.' The statute further provides that the rule of law and evidence as applied to ordinary actions shall govern the court in hearing the contest, in so far as such rules are applicable. Rem. & Bal. Code, § 4952. In view of these provisions and the liberal rule applicable to pleadings in ordinary actions, we think the statement of contest sufficient. It is admitted that there are 391 election precincts in King county, and it is alleged that in every one of these the election officers--and there are three in each precinct--wrongfully, intentionally, and fraudulently counted for the defendant ballots actually cast for the plaintiff. Disregarding, as we must, the general allegation of fraud, as mere epithet or at most a conclusion (7 Ency. Pl. & Pr. pp. 382, 383), there still remains the charge that sufficient votes actually cast for the plaintiff were counted for the defendant to have changed the result. While the word is not used in the statement this conduct would amount to 'malconduct' regardless of the motive by which it was actuated. Hadley v. Gutridge, 58 Ind. 302, 314; Minor v. Kidder, 43 Cal. 229.

Upon the trial the plaintiff demanded that the ballot boxes for each of the precincts of the county be admitted in evidence and the ballots recounted. The trial judge in passing upon the motion to dismiss the contest on the statement or complaint stated his views on this question so clearly that we take the liberty of a quotation. He said: 'Now there seems to be every consideration of public policy which should influence the court to be cautions and slow in ordering the opening of the ballot boxes. Every presumption is in favor of the faithful performance of official duty. Under our system men presumably qualified are appointed as election judges and clerks; and, when they have returned the vote cast under their supervision with a certificate of the number of votes cast for the respective candidates, the law throws around that return the shield of the legal presumption that these public officials have performed their duty. Likewise, when the canvassing board in auditing these returns have issued a certificate of election, that certificate stands as speaking the fact in a court of law until the verity of it has been overcome by clear and satisfactory proof. It cannot be that it was contemplated that any voter of this county may through idle whim or audacity of purpose institute an election contest with regard to any county office without some proof to present in advance of the opening of the ballot boxes that there is a just cause presented to the court. It is hard to conceive that the Legislature would put it in the power of such an irresponsible and unscrupulous voter to subject the community to the disturbance of an election contest and the taxpayers to the cost of such a proceeding without a reasonable case presented to the court to justify the opening of the ballot boxes. In a populous community such as King county, where a hundred thousand or more ballots are cast, such an election contest means the consumption of the time of the court for a month or more perhaps, at a heavy cost to the taxpayers, at the cost of the sacrifice of public peace and tranquillity, at the cost of embarrassment to the official declared to have been elected in the discharge of his duties, and the court should adopt, it seems to me, such construction of the statute as would require a contestant before these ballot boxes are opened and ordered to be counted to submit some proof to satisfy the court in a reasonable way that there is a just ground to believe that the election officials have failed to perform their duty.' Again, when the ballot boxes were actually offered, the trial judge said: 'Unless the plaintiff is prepared to submit to the court in advance of the opening of the ballot boxes some proof supporting the charge of malconduct on the part of the election officials, he should not charge such malconduct in his complaint. There are 391 precincts in this county with three election officers in each precinct, and the charge in the complaint is that every one of those men and women was guilty of official misconduct in receiving the votes cast at the polls and counting votes for the defendant that were cast for the plaintiff intentionally. It seems to me that, when such a charge is brought against every official connected with the election at the polls, that there should be some proof, at least, against some of them. But, even if there should be proof of malconduct in one precinct on the part of one or more of the election officials, it would not be proof of malconduct on the part of the officials in another precinct; and logically the court would be obliged to hold that before the ballot boxes of any precinct could be opened that proof of malconduct should be submitted to the court as a condition precedent to the opening of the boxes. If I understand the statement of counsel, he declined to offer any proof at all in support of the charge of fraud and wrongful and intentional miscount. Unless the court will permit the ballot boxes to be opened, if that is the proposition of counsel, to be consistent with my ruling, I must dismiss this proceeding.' The plaintiff has appealed, and these rulings present the real question for our consideration.

The appellant insists that the ballots themselves are the primary and best evidence of the number of votes received by any candidate, and this is undoubtedly true. 15 Cyc. 425; Budd v. Holden, 28 Cal. 124; Coglan v Beard, 65 Cal. 58, 2 P. 737; s. c., 67 Cal. 303, 7 P. 738; Tebbe v. Smith, 108 Cal. 101, 41 P. 454, 29 L. R. A. 673, 49 Am. St. Rep. 68; Keeler v. Robertson, 27 Mich. 116; Edwards v. Logan, 114 Ky. 312, 70 S.W. 852; Lucas v. Avis (Ky.) 89 S.W. 1; Kingery v. Berry, 94 Ill. 515; Leonard v. Woolford, 91 Md. 626, 46 A. 1025; Garms v....