State v. Smith
| Decision Date | 16 June 1914 |
| Docket Number | 6019. [d1] |
| Citation | 142 P. 408,43 Okla. 231,1914 OK 282 |
| Parties | STATE EX REL. LOVE v. SMITH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The county election board of Kingfisher county issued a certificate of election to relator, Chas. A. Love, declaring him elected to the office of sheriff, which certificate was in due form and regular on its face. Upon this certificate relator brought mandamus proceedings against defendant, who was in possession of the office; and upon a hearing the court admitted evidence tending to show errors and irregularities in the proceedings resulting in the issuance of said certificate of election, and rendered judgment in favor of defendant. Held, that in mandamus proceedings, the certificate of election, issued by the proper authorities, in due form and regular on its face, is conclusive evidence in favor of the holder thereof to said office named therein entitling him to the paraphernalia, records, books, etc pertaining to such office.
Error from District Court, Kingfisher County; James W. Steen Judge.
Application by the State, on the relation of Charles A. Love, for writ of mandamus against Clyde Smith. Judgment for defendant, and plaintiff brings error. Reversed, and order that writ issue from Supreme Court granted.
Giddings & Giddings, of Oklahoma City, and Geo. L. Bowman, of Kingfisher, for plaintiff in error.
W. A McCartney and Hinch & Bradley, all of Kingfisher, for defendant in error.
Plaintiff in error, Chas. A. Love, filed his motion and affidavit in the district court of Kingfisher county, praying for a peremptory writ of mandamus. In substance he alleges that at the general election, held November 5, 1912, he was the regular qualified nominee of the Democratic party for the office of sheriff of Kingfisher county; that at said election he received a plurality of votes cast for the office of sheriff; that the county election board of said county issued to him a certificate of election to said office; that he has duly qualified and has taken the oath of office, as required by law; that he has filed his bond and caused the same to be approved in the manner provided by law; that notwithstanding the fact that a certificate of election has been duly issued to him, and he has qualified in the manner provided by law, defendant, Clyde Smith, after due demand for said office and the insignia and paraphernalia of said office, records, etc., has refused and continues to refuse to vacate said office in favor of relator. The prayer is in the usual form for a peremptory writ of mandamus.
An alternative writ of mandamus was issued, returnable on the ______ day of February, 1913. Thereafter defendant filed his return and answer to said writ. After alleging several grounds in the nature of a special demurrer, wherein said affidavit and alternative writ were defective, he denies each and every allegation contained therein. He admits that he is performing the functions of the office of sheriff of Kingfisher county, and that he has possession of said office and all the books, paraphernalia, and records belonging to said office, and avers that he is the duly elected and acting sheriff of said county; that he has qualified in the manner provided by law. He alleges several irregularities in the holding of said election and in the acts of the county election board in the canvass of said returns. He specifically alleges that the returns from Union and Lacy townships were not counted by said election board. He goes into detail and alleges many irregularities, which we deem unnecessary to set out in this opinion.
Upon the issue as made, a trial was had to the court in February, 1913, and judgment rendered, denying the peremptory writ of mandamus and sustaining the contention of the defendant. From this judgment, plaintiff prosecutes this appeal. Among other grounds for reversal of this cause, he alleges: First. That said court erred in overruling the motion of plaintiff in error for a new trial. Second. Said court erred in not rendering judgment for plaintiff in error and against defendant in error.
The certificate of election which was issued and delivered to plaintiff and attached to and made a part of plaintiff's affidavit and motion is as follows:
It will be seen from the foregoing certificate of election that it is regular on its face and in the form prescribed by law. The view we take of this case will not require an examination of the voluminous record filed in this court.
It is the contention of defendant in error that the certificate of election issued to plaintiff in error is void, for the reason of irregularities in the action of the board in issuing same, and also for the reason that it was issued upon incomplete returns, there being two townships not canvassed, and further that it was not issued by the board but by certain members thereof. In a contest or in a quo warranto proceeding, these contentions might prevail; but, upon sound authority, we are constrained to hold that they cannot be urged in a mandamus proceeding. This would be a collateral attack upon the certificate, which is not permitted in a proceeding of this character. If we were to go into these matters in this proceeding, then every irregularity or misconduct of an official would warrant the court in mandamus proceedings to receive evidence relating to all kinds of irregularities. Thus it will be seen that the proceeding in mandamus would be converted into a contest, or a proceeding in quo warranto, involving the title to the office. If, upon the face of the certificate, defects in proceedings resulting in the issuance of a certificate of election were discovered, in that returns from certain townships were not counted, a different question would be presented. The court would then determine the issue upon the sufficiency of the certificate upon its face, and would not be required to go behind the certificate to ascertain defects or irregularities. This contention is illustrated by McCrary on Elections, §§ 306 to 314.
Section 306 reads:
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