Sommers v. Gould
| Decision Date | 23 May 1917 |
| Docket Number | 3771. |
| Citation | 165 P. 599,53 Mont. 538 |
| Parties | SOMMERS v. GOULD. |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; W. A. Clark, Judge.
Contest suit by Fred W. Sommers against Merton S. Gould. From a judgment dismissing the case, and awarding costs and an attorney fee to contestee, contestant appeals. Reversed and remanded.
M. M Duncan, of Virginia City, and Henry C. Smith, of Helena, for appellant.
Lew. L Callaway, of Great Falls, and Callaway & Beckett, of Virginia City, for respondent.
At the election held in the town of Twin Bridges in April, 1915, A J. Wilcomb and Merton S. Gould were rival candidates for the office of mayor. The canvassing board returned that Wilcomb received 82 votes and Gould 83, and a certificate of election was thereupon issued to Gould. Fred W. Sommers contested Gould's election, upon the ground that 2 illegal votes were cast and counted for Gould in ward 1, and that such votes were cast by Eli Twitchell and Roland A. Webb, neither of whom, it is alleged, was a resident of that ward at the time. Gould answered, and denied that he had any knowledge or information sufficient to form a belief as to whether Wilcomb received 82 legal votes, or any greater number than 79, admitted that the canvassing board returned that Wilcomb received 82 votes, and denied that any illegal votes were cast or counted for him. Upon the trial it was admitted that Twitchell and Webb were both registered in ward 1 and both voted in that ward. Touching the qualifications of these two voters, the contestant offered evidence to the following effect:
Webb is a single man, about 23 years old. For 7 or 8 months prior to the election in question he was working on a ranch about 10 miles from Twin Bridges. During that time he came to Twin Bridges occasionally, and stopped either at the Duella rooming house, in ward 3, or at the Stark Hotel, in ward 2; but in either instance he occupied a room provided for him by his employer.
Sommers testified that he has lived in Twin Bridges for 20 years, and in ward 1 for 8 years; that at the time of this election he was an alderman for ward 1; that there are only about 80 voters in the ward, and that he knows them all personally; that he knows Webb; that he knows that Webb did not live in ward 1 for at least a year prior to the election in April, 1915.
Wilcomb testified that he has lived in Twin Bridges continuously for 17 years; was mayor of the town from May, 1913, to May, 1915; that he lived in ward 1 at the time of the election in question; that he is well acquainted in the town, which has a population of only about 500; that he has known Webb for 5 or 6 years; that he knew him first when he lived on a ranch near Twin Bridges, but outside the corporate limits of the town; that he knew him afterwards, when he lived in Sheridan and Rochester; that in the summer of 1914 he worked in ward 1 and took his meals at a hotel in that ward, but had his room and slept in ward 3; and that he has never lived in ward 1 to the knowledge of the witness.
Gallahan, a judge of election in ward 1, testified that Webb came to the polling place on election day, ostensibly for the purpose of voting; that, when asked where he roomed, he replied at the Stark Hotel; that, when questioned concerning his right to vote in ward 1, "He said he did not know whether he had a right to or not," and, when asked upon what theory he sought to vote in that ward, he replied, "We have some lots up town;" that he left, but returned soon afterwards, and discussed his right to vote further, but again went away; that he came for the third time, and, having taken and subscribed the statutory oath required of challenged voters, received his ballot and cast his vote.
Concerning Twitchell's residence, Sommers, Wilcomb, and Harvey testified that Twitchell has a house in ward 1, where he lived for a year or more prior to the fall of 1914; that he then moved his family into two small rooms in ward 3, where they have since lived, and where they cook, eat, and sleep; and that, since they moved, their house in ward 1 has been rented to other parties, who have occupied it. After they moved, and before election, Twitchell asked Wilcomb whether an elector, who removes after registering, must re-register in order to vote, and Wilcomb understood from the circumstances that Twitchell was referring to himself.
Upon this evidence, offered by the contestant, the court held that a prima facie case of nonresidence had not been made out against either Webb or Twitchell, excluded evidence as to how either voted, and entered judgment dismissing the contest, and awarding contestee his costs and an attorney fee, amounting in the aggregate to $323.90. From the judgment, and from an order denying a new trial, contestant appealed.
The term of office involved herein has expired, and the controversy now involves only the question of costs. If the court was correct in holding that contestant did not make out a prima facie case, it was correct in taxing against him a reasonable attorney...
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