State v. Fawcett

• Decision Date: 22 June 1897
• Citation: 49 P. 346,17 Wash. 188
• Parties: STATE EX REL. ORR v. FAWCETT.
• Court: Washington Supreme Court

49 P. 346

17 Wash. 188

STATE EX REL. ORR v. FAWCETT.

Supreme Court of Washington

June 22, 1897

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Information in the nature of quo warranto by Edward S. Orr against Angelo V. Fawcett to try title to the office of mayor of Tacoma. There was a judgment of ouster. A new trial was denied, and defendant appeals. Reversed.

John Paul Judson, Ben Sheeks, and Hugh Farley, for appellant.

P. C Sullivan, J. S. Whitehouse, and Murray & Christian, for respondent.

DUNBAR J.

This was an information filed against the appellant, Fawcett, by the relator, Orr, charging Fawcett with the usurpation of the office of mayor of Tacoma. Appellant and respondent were opposing candidates for mayor at a regular election. The votes had been counted, and a certificate of election had been given to Fawcett, who qualified and entered upon the duties of the office. It was alleged by the relator that, by reason of the misconduct of some of the election officers certain of the ballots which had been cast should have been counted for him, and had not been so counted, and that certain other ballots had been wrongfully counted for Fawcett; and it was asserted that, upon a correction of these errors, it would appear that the relator, and not Fawcett had been elected. The court below found in favor of the relator, and gave judgment against Fawcett ousting him from said office. From such judgment, after a motion for a new trial had been made and overruled, an appeal is brought to this court.

The respondent has moved to strike the brief and statement of facts, for the reason that the brief assigned no errors, and that the statement of facts was not properly certified. Without entering into an extended discussion of this motion, which was vigorously prosecuted, we think that the matters in contention are sufficiently stated in the brief, and that the statement of facts is not material to the controversy, as the findings of fact by the court and the conclusions of law are sufficiently full to give the court an understanding of the merits of the case. So that the real question is, are the conclusions of law sustained by the findings of fact?

The three questions which are raised by the brief for the determination of this court are: (1) In an information in the nature of quo warranto is the defendant as a right entitled to a jury trial? (2) In such a case to try the title to a public office, can any of the ballots be counted when it appears that those from certain precincts are missing? (3) Did the court err in determining that certain ballots were void, and from certain others the intention of the voters could not be ascertained?

The first contention has been decided by this court adversely to appellant's claim in the case of State v. Doherty (Wash.) 47 P. 958.

The authorities on the second proposition have been so meagerly collated and presented that we think the court is justified in not passing upon that question, especially inasmuch as the conclusion which we have reached on the third proposition decides this case adversely to the interest of the relator. The ballots as counted by the inspectors and judges were 5,364. 2,683 of these ballots were counted for Fawcett, and 2,681 for Orr, which resulted in the announcement of Fawcett's election by a majority of 2. The court counted 5,233 ballots,-2,624 for Orr, and 2,609 for Fawcett; resulting in the announcement of Orr's election by 15 majority. A great many findings of fact and conclusions of law are presented in the appellant's brief, which are not objected to in any way, and conclusions reached by the court are presented, which conclusions were accepted by appellant as correct; so it has been with some difficulty that the court has been able to discover the conclusions upon which this controversy is based.

Conclusion 6 is as follows: "The court concludes, as to ballots numbered 10, 22, 23, 46, 48, 65, 71, 72, 74, 80, 83, 98, 107, 110, 111, 119, 120, 121, 124, 127, 138, 142, 144, 145, 148, 151, 182, 186, 193, 198, 200, 227, 231, 234, and 243, that said ballots, and each of them, are marked at a place not authorized or permitted by law; that the voter in these cases has failed to express his intention; that said marks constitute distinguishing marks, whereby the ballots could be distinguished from other legal ballots; that the intention of the voter could not be ascertained from any of the said ballots; and that said ballots, and each of them, are illegal and void, and could not be counted for any person for the office of mayor." These ballots were in all respects perfect, excepting that the cross was placed to the left of the names voted for, instead of to the right. Fourteen of these votes were cast for Orr, and twenty-one for Fawcett. It follows that, if they were improperly rejected, Fawcett should have an additional credit of seven votes; and we think they were erroneously rejected, for reasons which we will refer to hereafter.

The eighth conclusion of law is as follows: "That the pencil marks other than the mark 'X' appear on the following numbered ballots, to wit, 5, 27, 45, 50, 53, 57, 86, 87, 94, 95, 103, 112, 113, 114, 116, 128, 130, 131, 150, 155, 159, 160, 179, 180, 194, 197, 199, 232, 236, and 239; are such marks and things as are inhibited by section 11 of chapter 156 of the Laws of 1895; and are such marks as would distinguish such ballots, and each of them, from other legal ballots; and that said ballots, and each of them, are invalid and void, and cannot be counted for any person for the office of mayor." As a sample of these rejected ballots, the finding of the court in relation to ballot 103 was as follows: "Ballot 103 was cast in the Fourth precinct of the Third ward. It is marked with a character 'X' to the right of the names Fawcett, Ovington, Metcalf, Quevli, and Hannah, with a black pencil. Horizontal black pencil lines have been drawn through each of the names of Orr, Sternberg, Benham, Allen, and Bell. Upon that part of the ballot providing for voting for and against amendments to city charter, ten long heavy lines have been made with a pencil composed of blue coloring matter." And the finding in relation to ballot No. 232 was as follows: "Ballot No. 232 was cast in the First precinct of the Seventh ward. It is marked with an 'X' opposite each of the names of Fawcett, Ovington, Metcalf, Quevli, and Link, and a straight lead pencil mark was drawn through each of the words 'mayor,' 'Edward S. Orr,' 'Wm. A. Sternberg,' 'Edgar V. Benham,' and 'Hamilton Allen."' The finding in relation to ballot 239 is substantially the same, and ballot 199 was like the others, excepting that it was marked with two characters, "X, X," at the right of each of the names of Fawcett, Sternberg, Metcalf, Quevli, and Hartman, and two characters, "X, X," to the right of each place provided for voting on each of the amendments to the city charter, amendment No. 1 to amendment No. 21, inclusive. These are substantially the objections to the ballots rejected by this conclusion. These ballots, if counted, would have given 17 votes to Fawcett, and 10 to Orr; and, as we think they should have been counted, Fawcett should be credited with 7 votes additional, so far as the eighth conclusion of law is concerned.

The ninth conclusion is as follows: "That ballots numbered respectively, 24, 26, 38, 40, 58, 70, 73, 76, 79, 84, 109, 115, 118, 125, 129, 135, 154, 161, 169, 171, 178, 189, 201, 226, 228, 229, and 245, each bears upon its face written language which is not authorized or permitted by law; that each bears some impression, device, color, or thing designated to distinguish such ballot from other legal ballots; that each of said ballots bears some device, color, or thing whereby it might be designated and distinguished from other legal ballots; that each of said ballots bears written language which is inhibited by law; that each of said ballots is illegal and void and cannot be counted for any person for mayor." The finding of the court in relation to rejected ballot 189 was as follows: "That ballot No. 189 was cast in the 3rd precinct of the Fifth ward, and is marked to the right of the name of A. V. Fawcett with two crosses, being about 1 1/2 inches apart, and also marked with an 'X' to the right of the words 'Ovington,' 'Metcalf,' 'Quevli,' and 'Hartman,' and also marked with an 'X' to the right of, 'For amendment No. 10'; that at the words 'Against amendment No. 19,' two horizontal pencil marks are made through the words 'Against amendment No. 19'; that, to the right of the words 'Against amendment No. 19' the word 'No' is written with a lead pencil, and to the right of that written, and in the same blank space with it, is also made a character 'X'; that upon said ballot, and to the right of and opposite the words 'For amendment No. 1,' appear the following words in lead pencil, 'Don't want any king."' Ballot 73 had the word "Rats" written on the amendments. Ballot 58 had the name of J. M. Houser marked upon the margin, and ballot 26 had the name of Jacob Wurth marked on the margin. These four ballots, we think, were properly excluded by the court, for the words written were not so written with any intention on the part of the elector to express his choice of a candidate. They were not honest mistakes, and showed a frivolous and wanton disposition on the part of the elector to disregard the election laws. The rest of the ballots, however, under this finding, we think, were erroneously rejected. The words or signs which the court objected to were generally the word "No" after amendments, or "For" after amendments, or "Against" or "Yes," and pencil lines which were evidently made with the intention of making plain the expression of...