Rampendahl v. Crump
| Decision Date | 09 November 1909 |
| Docket Number | Case Number: 271 |
| Citation | 24 Okla. 873,1909 OK 287,105 P. 201 |
| Parties | RAMPENDAHL v. CRUMP. |
| Court | Oklahoma Supreme Court |
¶0 1. ELECTIONS--Ballots--Deposit--Mandatory Statutes. That part of section 4 of chapter 17, p. 233, of the Session Laws of Oklahoma Territory of 1905. which provides that on leaving the booth the voter shall "deliver the ballots to the inspector or judge temporarily acting as inspector, and such inspector shall forthwith, in the presence of the voter and members of the election board and the watchers, deposit same in the respective ballot boxes," is mandatory.
2. ELECTIONS--Contest--Gross Irregularities--Rejection of Precinct. When it appears that practically not only every mandatory but also every directory provision of the laws governing the holding of the election, except that relating to time and place have been flagrantly and willfully violated in a precinct, and the integrity of the result of such election is left in grave doubt, and the trial court thereby rejects the ballots cast at such precinct, his action will not be disturbed on review in this court.
Error from District Court, Muskogee County; D. A. Richardson, Judge.
Election contest by W. F. Rampendahl against W. J. Crump. Judgment for defendant, and plaintiff brings error. Affirmed.
A. A. Davidson and George A. Murphey, for plaintiff in error,--Citing: Gillaland v. Schuyler, 9 Kan. 569; Stackpole v. Hallahan (Mont.) 28 L. R. A. 506; Jones v. State (Ind.) 55 N.E. 229; McClelland v. Erwin (Okla.) 86 P. 283; State v. Russell (Neb.) 33 Am. St. Rep. 625; Fry v. Booth, 19 Ohio St. 25; Clelland v. Porter (Ill.) 24 Am. Rep. 273; DeBarry v. Nicholson (N. C.) 11 Am. St. Rep. 767; Williams v. Soudy (Wash.) 41 P. 169; Holland v. Davis, 39 Ark. 549; People v. Avery (Mich.) 61 N.W. 5; Patton v. Watkins (Ala.) 90 Am. St. Rep. 43; State v. Sillom, 24 Kan. 13; Parvin v. Winberg (Ind.) 30 Am. St. Rep. 257; Bowers v. Smith (N. Y.) 33 Am. St. Rep. 491; State v. Saddler (Nev.) 83 Am. St. Rep. 573; Roberts v. Calvert (N. C.) 4 S.E. 127; Tarbox v. Sughrue, 36 Kan. 225; 15 Cyc. 370, 371; Williamson v. Musick (W. Va.) 53 S.E. 706; Bingham v. Broadwell (Neb.) 103 N.W. 323; Chadwick v. Melvin, Brightley's Election Cases, 256; Ransom v. Black, 54 N.J. L. 446; Sanders v. Prentice, 28 Wis. 358; Daly v. Petroff, 10 Phila. 389; Hall v. Schonecke (Mo.) 31. S.W. 97; Clark v. Robinson, 88 Ill. 498; Russell v. McDowell (Cal.) 23 P. 183; O'Laughlin v. City of Kirkwood (Mo.) 81 S.W. 512; Hundley v. Bowman (Minn.) 84 N.W. 1002; Perry v. Hackney (N. D.) 90 N. W. 483; Wenworthy v. Mast (Cal) 74 P. 841; Gass v. State, 34 Ind. 425; Abbott v. Hartley, 77 P. 410.
De Roos Bailey, S. M. Rutherford, J. E. Wyand, and Thomas H. Owen, for defendant in error.--Citing: Attorney General v. McQuade, 94 Mich. 439; Attorney General v. May, 99 Mich. 539; Blue v. Peter, 20 P. 442 (Kan); London v. People, 26 P. 135 (Col.); Tebe v. Smith, 49 Am. St. Rep. 68; Major v. Booker, 99 Kan. 305; Kirkpatrick v. Board of Canvassers, 44 S.E. 465; People v. Bd. of County Canvassers (N. Y.) 14 L. R. A. 624; Attorney General v. Stilson, 108 Mich. 419; Attorney General v. Kirby, 120 Mich. 592; Rhodes v. Driver, 64 S.W. 272; Mauck v. Brown, 81 N.W. 313; Freeman v. Lazarus, 61 Ark. 253; Patton v. Coates, 41 Ark. 111; Jones v. Glidewell, 53 Ark. 162; Mann's Case, 2, Phila. 320; 6 A. & E. Enc. L. 353.
¶1 This case grows out of the election held on September 17, 1907, for the purpose of ratifying or rejecting the Constitution for the proposed state of Oklahoma, and the election of state, county, and township officers. The plaintiff, who is also the plaintiff in error in this court, in his petition filed on December 31, 1907, and as amended March 3, 1908, alleges: That both plaintiff and defendant were candidates for the office of county attorney of Muskogee county; that their names appeared upon the official ballots; that said county was divided into 30 election precincts, an election being held in each, and votes were received by both plaintiff and defendant for said office in each precinct; that the total number of votes cast in said precincts was 7,213, plaintiff receiving 3,681 and the defendant 3,532; that the plaintiff was thereby elected to said office; and that the majority of the board of county commissioners rejected the returns from certain voting precincts, to wit, Yahola, Taft, and Ft. Gibson; that an abstract of said votes was made by said commissioners and filed with the county clerk of Muskogee county in the remaining 27 precincts; that said county commissioners issued to the defendant election certificates; and that he intruded into said office-and withholds the same and the fees thereof from the plaintiff. The division of said county into 30 precincts and the holding of election in each excepting Yahola, Taft, and Ft. Gibson is admitted by the defendant. All other allegations are by him denied. The defendant further alleges that the elections in the precincts of Taft and Yahola were invalid and illegal because of certain misconduct, and that the votes cast therein should not be counted. On the trial it was agreed that the total number of votes received by the plaintiff in the 27 uncontroverted precincts was 3,016, and by the defendant 3,257, and the issues there tried involved only the votes cast for the plaintiff and the defendant in Ft. Gibson, Taft, and Yahola precincts, and the validity of the election in the two latter. The trial court found: That the plaintiff received 331 votes in the Ft. Gibson precinct, and the defendant 211 votes, and such votes should be counted; also, that the election in the Yahola precinct was valid, and the plaintiff had received in such election 111 votes, and the defendant 30 votes; that at the election in the Taft precinct the plaintiff received 195 votes, and the defendant 5 votes; that the election in said precinct was invalid; that such votes should not be counted; and that plaintiff thus received at said election in said county 3,458 and the defendant 3,498 votes, and awarded the office to said defendant. As the only action of the trial court that is urged by the plaintiff in error in this court as being erroneous is that relating to Taft precinct, it obviates the necessity of adverting to the ruling of the nisi prius court as to Yahola or Ft. Gibson precincts.
¶2 The following questions are necessary to be determined:
¶3 Lee Duncan testified on behalf of the defendant, in substance, as follows: That he was inspector of the election which was held in a building 10 by 12 feet. That there was a door in the east end of the building, and windows on the north and south side of the building. That in order to keep the voters back they stretched ropes on each side of the door forming a chute, the entrance to which was 50 feet from the door. That ropes were also stretched on each side of the house. That there were two booths in the house, one in the northeast and one in the northwest corner. That one of the panes and half of the other was out of the lower sash, thus leaving the window open. That the crowd was instructed to remain 50 feet from the building; but they absolutely refused to do so. That they were cursing and yelling around there, and in an hour or so after the polls were open the ropes were all down. The challengers were standing at the door, and that the crowd finally got so rough that one of the challengers would not stand outside, and that an officer was appointed to keep them out of the house; the officer's name being Tom Williams. That the voters crowded right around the door, and Williams had to shove them back all the time. That at times the crowd was standing at the north window, and at times they would force themselves into the house. That three or four voters would be inside the house, while two voters were in the booths. That the voters would often come out of the booths with their ballots open. That when they were instructed to return into the booths and fold their ballots they would sometimes do so, and at other times would not. That often the voter handed his ballot to Stout Ham, who would put the ballot in the box. That Stout Ham, who was the pollbook holder, received about two-thirds of the ballots, some of which he put in the box himself, and some of which were handed to Duncan by Stout Ham. That all through the day the voters at the door and north window would say: "Vote her straight, stamp under the eagle." There were 150 to 200 people around the door and window. A notary public from Muskogee stationed himself right at the window. That he had him removed by the officers two or three times. That he stayed at the window two or three hours and ran in the house three or four times. One time he said he had orders from Muskogee to hurry up the election. That one of the clerks would frequently go into the booths with a voter who wanted instructions and would stay in there until the voter made out his ticket. That the booths were about three feet from the window. That, when he first commenced trying to get the judges and clerks that morning, a committee came to him and demanded that they should use them for judges and...
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