Roberts v. Marshall

• Decision Date: 24 October 1912
• Docket Number: Case Number: 4431
• Citation: 127 P. 703,33 Okla. 716,1912 OK 689
• Parties: ROBERTS et al. v. MARSHALL et al.
• Court: Oklahoma Supreme Court

1912 OK 689

127 P. 703

33 Okla. 716

ROBERTS et al. v. MARSHALL et al.

Case Number: 4431

Supreme Court of Oklahoma

Decided: October 24, 1912

Syllabus

¶0 1. MANDAMUS--Subject of Relief--Acts of Officers--Election Board. Where the returns of a primary election have been made to the State Election Board by the county election boards of the counties constituting a legislative district, and such returns are regular in form, properly certified, and valid upon their face, and the State Election Board has met and canvassed such returns, declared the result thereof, and issued a certificate of nomination to the candidate shown to be successful by such returns, the State Election Board cannot be compelled by mandamus to meet and recanvass another set of returns subsequently certified to it by a county election board, either voluntarily or by order of court.

2. SAME--Other Remedy--Quo Warranto. A defeated candidate who complains that the returns canvassed by the State Election Board were irregular and fraudulently made by the county board has a remedy by an action in the nature of quo warranto against the holder of such nomination to try the title thereto.

Orville T. Smith and Ross N. Lillard, for plaintiffs in error.

E. L. Fulton, for defendants in error.

HAYES, J.

¶1 This action grows out of the recent primary election held on August 6th of this year throughout the state for the purpose of nominating by the different political parties candidates for various state and county offices. The action was instituted in the court below by defendant in error O. Marshall against the State Election Board and the county election board of Texas county as defendants. He alleges in his petition that both he and plaintiff in error W. L. Roberts were eligible to and were candidates for the nomination by the Democratic party for the office of representative from the legislative district composed of Texas and Cimarron counties, that on the face of the returns, certified by the various precinct election boards of Texas county, he received not less than 368 votes, and that the said Roberts received not more than 426 votes for such nomination; but he alleges that the county election board neglected and refused to certify to the State Election Board the true returns as certified by the precinct election boards of said county, and made false returns to the State Election Board to the effect that he received 349 votes and the said Roberts 531 votes; that, if the county election board had certified the votes actually cast in the county for said candidates as certified by the precinct boards, he would have received the nomination from said district by a vote of not less than 93. He further alleges that the State Election Board, however, canvassed the returns from said counties, certified to the State Election Board by the county boards, and thereon declared the result of said election to be that Roberts had received the nomination, and accordingly issued a certificate of nomination to him. In the prayer of his petition defendant in error Marshall, who will hereinafter be referred to as plaintiff, prayed that the court issue its order of mandamus to the county election board of Texas county, compelling them to reconvene and re-canvass the votes cast in said county as certified in the returns of the precinct election officers, and to certify the result of such canvass to the State Election Board, and that the State Election Board be enjoined from placing upon the official ballot of the Democratic party for the general election to be held on November 5th of this year the name of Roberts for the office of State Representative of said counties, and that the State Election Board be required to place upon said ballot the name of plaintiff as candidate for said office, and also prayed for all further relief that might appear to the court right and proper. The members of the State Election Board entered their appearance and filed an answer, denying some of the allegations of the petition and specifically admitting others. They allege by way of an affirmative defense that complete returns of the primary election in the counties of Texas and Cimarron were in due form made to the board and were duly canvassed by the board, and as a result of said canvass it was found that there were cast in Cimarron county 240 votes for plaintiff and 89 votes for Roberts; that in Texas county there were cast 349 votes for plaintiff and 531 votes for Roberts, making a total number of votes cast as shown by the returns filed by the two county election boards with the State Election Board of 589 votes for plaintiff and 620 votes for Roberts, whereupon the board declared Roberts nominated, and issued to him a certificate of nomination. The State Election Board alleges that it has no information concerning the votes cast for said candidate in the various precincts of Texas county, except as shown by the returns of the county election board of that county filed in the office of the State Election Board. The county election board, having unsuccessfully demurred to plaintiff's petition, filed an answer denying generally all the allegations of the petition, except they admit that an abstract of the votes from all the precincts in Texas county was made and certified to the State Election Board as set out in plaintiff's petition. They affirmatively allege that there were no returns by the precinct election officers of the precincts in Texas county as required by the provisions of section 7, c. 106, Sess. Laws 1910-11, and, upon ascertaining this fact, they sought the advice of counsel, and under his advice proceeded to count the ballots cast for said office in said county; that they correctly counted all the ballots from each and all the precincts of the county, and truthfully certified the result to the State Election Board; that their action was taken in good faith, and that an inspection of the ballots would show that the certificate made by them to the State Election Board is correct. At this stage of the proceedings, plaintiff in error Roberts appeared and filed his motion, asking leave to be made party defendant and for permission to answer, which was granted. He admits most of the allegations of plaintiff's petition, except that he disclaims any knowledge or information of any fraud in the election and in the count and canvass of the returns of the votes therein, and says that, if any such fraud existed or was perpetrated, it was without his knowledge, procurement, or consent, and he asks that the court inquire into the legality of said election and cause to be counted the votes cast therein, to the end that the truth might be determined. The trial court found, among other facts, that returns were made from all the election precincts of Texas county to the county election board in the manner required by law, and that they showed the vote to be substantially as alleged in plaintiff's petition; that, when the county election board canvassed these returns, they ignored the returns made by several precinct election boards, and, upon the advice of counsel, they opened the sealed packages containing the ballots voted at such precincts and from a count made by them of said ballots and from...