State ex rel. Brooks v. Fransham
| Citation | 48 P. 1,19 Mont. 273 |
| Parties | STATE ex rel. BROOKS v. FRANSHAM. |
| Decision Date | 08 March 1897 |
| Court | Montana Supreme Court |
Appeal from district court, Gallatin county; F. K. Armstrong, Judge.
Quo warranto on the relation of W. Randolph Brooks to determine the right of William J. Fransham to the office of sheriff of Gallatin county. From a judgment in favor of defendant relator appeals. Reversed.
T. J Walsh, for appellant.
Luce & Luce, for respondent.
This is an appeal from a judgment of the district court of Gallatin county adjudging that the relator take nothing by reason of his action, and that the respondent recover his costs. The complaint alleges that the relator, Brooks, at the general election in November, 1896, was the Democratic candidate for sheriff of Gallatin county, and that the defendant, Fransham was the Republican candidate, having been regularly nominated by the Republican county convention of Gallatin county. Relator further alleges that on November 11, 1896, the board of canvassers of Gallatin county declared and certified that Fransham had received 1,080 votes for sheriff, and that Brooks had received 1,034 votes, whereupon Fransham was declared elected and a certificate issued to him. Relator Brooks, then avers that the Silver Republican party has existed in Montana at all times since September 9, 1896, and by its convention had nominated candidates for electors for president and vice president of the United States, for representative in congress, and various state officers for the state of Montana, and had published its principles, but that no convention of said party was ever held in Gallatin county to nominate candidates for county offices or for any purpose. It is also alleged that the principles advocated by the Silver Republican party were much more popular in Gallatin county than the principles of the Republican party, and that subsequent to the adjournment of the Republican county convention for Gallatin county the various candidates of the Republican party for the various county offices, to avail themselves of the advantages arising from the popularity of the Silver Republican party, "and with the view to represent themselves and have themselves represented to the electors of the said county of Gallatin as the candidates of the said Silver Republican party, caused to be circulated among the electors of the said county of Gallatin certain lists, headed with a recital, in substance, to the effect that the said individuals so therefore nominated by the county convention of the Republican party of the said county of Gallatin were thereby, by the electors signing the same lists, nominated as the candidates of the said Silver Republican party for members of the state legislature and the various county offices, each individual so nominated being nominated for the same office for which he had been theretofore nominated by the said Republican convention; that the said lists so circulated were signed by the number of electors of said county requisite to make nominations for the said offices by electors acting independently of the convention, and that, having been so signed, the said lists were as one document filed in the office of the county recorder of the said county of Gallatin; and that relator avers that, save and except as aforesaid, none of the said individuals, nor any other person, was ever nominated by the said Silver Republican party as candidates for any county office for the said county of Gallatin." And relator further avers that immediately prior to October 23, 1896, the supreme court of the state had pending before it several cases, in which the validity of other nominations made in other counties of the state as the candidates of the Silver Republican party for county and district offices was challenged, which said nominations were made in the same manner as just set forth concerning the alleged nomination of candidates of said Silver Republican party for county offices in Gallatin county; that is, by the independent action of electors signing lists headed with a recital, in substance, to the effect that they thereby nominated certain persons named as the candidates of the Silver Republican party. It is averred that on October 23, 1896, the supreme court of this state handed down its decisions affecting nominations attempted to be made in the manner hereinbefore set forth, and that thereupon the county attorney of Gallatin county advised the county clerk of that county of the decisions of the supreme court, and that the lists filed with him were invalid as nomination certificates, and that the candidates therein named were not entitled to appear upon the official ballot of Gallatin county, except as candidates of the Republican party, and that he should not print the ballots with the names of any persons thereon as the candidates of the Silver Republican party for county offices of said county; that thereupon, on October 23, 1896, the county clerk declared to relator his intention to print and circulate the official ballots for the ensuing election, to be held on November 3, 1896, with no names appearing thereon under the heading of the Silver Republican party, or with the group of candidates of said party, except those of such persons as had been nominated by it for presidential electors, representative in congress, and state officers. The relator avers that in accordance with the advice of the county attorney the county clerk caused to be printed on October 23d a large number of sample official ballots for said county, on which there appeared no names of candidates of the Silver Republican party except for electors for president and vice president, member of congress, and state officers; but that, disregarding the advice so given, the county clerk later, on the same day, at the instigation of said alleged nominees of the Silver Republican party for county offices, ceased to print the ballots in form as aforesaid, and caused to be printed, and thereafter to be distributed among the various precincts of the county, official ballots on which all of the candidates of said Republican party appeared under the head of the Republican party, and also under the heading of the Silver Republican party, and that such ballots, and no others, were used at all of the precincts of Gallatin county. The relator avers that one W. L. Holloway appeared as the Republican candidate for judge of the Ninth judicial district, and that one F. K. Armstrong was at the time judge of said district court, and was also at that time the Democratic candidate for re-election; that Holloway's name appeared in the lists hereinbefore referred to, purporting to have been nominated as the candidate of the Silver Republican party for judge, and that his name appeared upon said official ballots under the heading of the Silver Republican party, by reason of which facts the said F. K. Armstrong was disqualified from hearing any proceedings that might have been brought to obtain redress for the unlawful acts of the county clerk in printing and distributing the said ballots; that the relator and others, who were candidates of the Democratic party, on learning on October 23, 1896, of the purpose of the county clerk in the matter of printing the official ballots of Gallatin county, intended to apply to the supreme court to have the county clerk enjoined from printing or distributing any official ballots for Gallatin county with any names appearing thereon as the candidates of the Silver Republican party for county offices for Gallatin county, when they learned the fact that the supreme court had declared on that day that it would hear no more cases touching the validity of nominations or regularity of ballots for the ensuing election. The relator then avers that at the election more than 200 ballots were cast in the various precincts of Gallatin county in which the voter designated his choice of candidates by marking a cross in the circle at the head of the group of candidates of the Silver Republican party, and not otherwise, and that each of said ballots so cast was counted and returned by the election officers as a vote for Fransham for sheriff; that if 47 or more of said ballots, marked as aforesaid, had not been counted for Fransham, the relator would have received a greater number of votes than Fransham, and would have been elected. The relator makes a further complaint, averring that in the precinct of South Bozeman at least 30, and at the precinct of Chestnut at least 20, ballots were cast in which the voters marked a cross within the circle at the head of the list or column headed "Democratic Party," and also placed a cross at the left of the name of said Fransham where it appeared in the list headed "Silver Republican Party," and that all of the ballots so cast were by the judges and clerks of election of said precincts returned as votes for the said Fransham for sheriff, and were included in the number of votes so found to have been received by Fransham by the board of county canvassers. The relator then alleges that the defendant usurped the office of sheriff of Gallatin county, and he demands judgment against said defendant and in favor of his own right. To this complaint the defendant demurred generally and specially. The district court sustained the demurrer. The relator declined to amend his complaint, and permitted judgment to go against him.
A question of jurisdiction is raised in limine by the contention of defendant that this action cannot be maintained at all as one in the nature of quo warranto, and that it was not instituted within the time allowed by law for contesting an election for a county office, and that, therefore, the lower court had no jurisdiction of the subject-matter. By section 2010 et seq., Code Civ. Proc.,...
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