Stearns v. State ex rel. Biggers, Co.
| Decision Date | 10 March 1909 |
| Docket Number | Case Number: 588 |
| Citation | 1909 OK 69,100 P. 909,23 Okla. 462 |
| Parties | STEARNS, Mayor, et al. v. STATE ex rel. BIGGERS, Co. Atty., et al. |
| Court | Oklahoma Supreme Court |
¶0 1. ELECTIONS--City Elections--Canvassing Votes--Duties of City Council. The duties of city councils of cities of the first class to canvass the returns made to the city clerk by the precinct election boards and declare the result of an election are purely ministerial, and they have no power to hear evidence aliunde the returns or to go behind the returns, regular and valid upon their face, for the purpose of determining whether the election officers of a precinct have irregularly and fraudulently canvassed and returned the vote from such precinct.
2. MANDAMUS--Canvass of Election Returns--Return to Writ--Sufficiency. In a return to an alternative writ, commanding the members of a city council to show cause why a peremptory writ should not issue commanding them to canvass all the returns of an election held for the purpose of selecting freeholders to prepare and propose a charter, the respondents answered that the votes from one ward had been fraudulently and falsely canvassed and returned by the election board of said ward, so as to change the result of the election, for which reason they refused to canvass the returns from said ward. Held, that a motion to strike said allegations from the return was properly sustained by the trial court.
3. ELECTIONS--City Election--Proclamation Published on Sunday. Under the provision of section 354, Wilson's Rev. & Ann. St. 1903, requiring the mayor of a city of the first class to issue a proclamation for every election, general or special, giving at least 10 days' notice thereof, held, that the publication of a proclamation by the mayor calling an election to elect freeholders to prepare and propose a charter made in a Sunday issue of a daily paper of the city more than 10 days before the election is valid and sufficient.
4. MANDAMUS--To Canvassing Board. The court may by mandamus require a board of canvassers after it has made one partial canvass and declared the result to reassemble and make a canvass of all the returns if it appears upon the first canvass the board improperly rejected the returns from one of the precints, and refused to canvass same.
P. O. Cassidy, City Atty. W. M. Engart, Asst. City Atty., B. B. Blakeney, J. H. Woods, Fred Reiley, L. G. Pitman, and C. P. Holt, for plaintiffs in error.
W. S. Pendleton, H. H. Smith, M. L. McKenzie, W. T. Williams, and Edw. Howell, for defendants in error.--The court had no right, on application for mandamus, to go behind the election returns, under facts of the case at bar: State v. Stevens, 23 Kan. 325; Rosenthal v. Board of Canvassers (Kan.) 32 P. 129; New v. Voege (Wis.) 71 N.W. 880; State v. Holmes (Neb.) 91 N.W. 175; People ex rel. v. Bell, 7 N.Y.S. 701; People ex rel. v. Board of Canvassers, 19 N.Y.S. 206; Cerini v. De Long (Cal.) 94 P. 582. On validity of election notice published on Sunday: State v. Dougherty, 58 Am. St. Rep. 41; Knoxville v. Knoxville Water Co. (Tenn.) 61 L. R. A. 888; Wilson's Rev. & Ann. St. §§ 1963, 1969.
Error from District Court, Pottawatomie County; James R. Tolbert, Judge.
Action by the State, on the relation of Virgil R. Biggers, County Attorney, and others, for writ of mandamus to Frank P. Stearns, mayor of city of Shawnee, and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
This is an action for mandamus brought by defendant in error in the district court of Pottawatomie county against the mayor and members of the city council of the city of Shawnee to compel them to reconvene and canvass the returns from the First ward in the city of Shawnee of the votes cast at an election held in that city on the 5th day of September, 1908, and to consider the returns from said precinct in rendering and declaring the result of the election held on that day for the purpose of ascertaining whether a proposed charter for the city of Shawnee should be adopted. On the 7th day of April, 1908, an election was held in the city of Shawnee for the purpose of ascertaining whether further proceedings toward adopting a charter for said city should be taken and for the election of a board of freeholders to frame the proposed charter. At said election a majority of the votes cast were in favor of proceeding to adopt the charter and a board of freeholders consisting of two members from each ward of the city was elected to prepare and propose the same. The board of freeholders thereupon qualified and did prepare the proposed charter, and filed copies of the same with the mayor of the city of Shawnee and the register of deeds of Pottawatomie county, as provided by law. Thereupon an election was called for and held on the 5th day of September, 1908, for the purpose of determining whether the proposed charter should be adopted by the city. On the 11th day of September, 1908, the city council met as required by law for the purpose of canvassing the returns of said election, and proceeded to and did canvass the returns from all the wards of the city except the First ward. Upon said partial canvass of the votes the council declared the charter lost. The returns from the First ward showed that in said ward 205 votes were cast for the charter and 37 against it, and that, if the city council in canvassing the returns had considered and canvassed the returns from said ward, there would have been a majority of 32 votes for the adoption of the charter. The facts here stated are in substance as alleged in the petition and amended writ.
Respondents in their return to the writ demurred and moved to quash the same upon several grounds which are unnecessary to be stated here for the reason they are not insisted upon in this court. Further answering, they admit that they refused to canvass the returns from the First ward, and allege they did so for the reason that the same had been falsely and fraudulently made by the election board of said ward; that two of the members of the election board of said ward corruptly conspired together to deprive the electors thereof of their franchise and to prevent a free expression upon the question submitted at the election, and that said two persons in furtherance of their conspiracy handled the ballots when the same were canvassed and miscalled the same; that one of said persons in reading the ballots called 205 ballots for the adoption of the charter and 37 against the adoption, whereas, in fact, there were 116 ballots for the adoption of the charter and 126 against, and that by the false and fraudulent acts of said two election officers the returns from said ward as delivered to defendants were false and did not speak the truth, and that the changes therein resulting from the fraudulent acts of the election officers of said ward would change the result of the election, making it appear that a majority of the votes in the city were in favor of the adoption of the charter, whereas in fact a majority of the votes were against it; that on the day the defendants convened as a canvassing board to canvass the votes cast at said election residents of the city met with the board and filed a protest against canvassing the returns from the First ward, and with their protest submitted 126 affidavits of electors of the First ward, in which each affiant stated that he was an elector in the ward, properly registered, and voted therein at said election, and that he voted against the charter.
Petitioners moved to strike out all that portion of the return alleging fraud of the election officers of the first ward in making their return, which motion was sustained by the court, and, upon the hearing of the case upon the petition and return to the alternative writ, a peremptory writ was awarded.
P. O. Cassidy, City Atty. W. M. Engart, Asst. City Atty., B. B. Blakeney, J. H. Woods, Fred Reiley, L. G. Pitman, and C. P. Holt, for plaintiffs in error.
W. S. Pendleton, H. H. Smith, M. L. McKenzie, W. T. Williams, and Edw. Howell, for defendants in error
¶1 The two propositions upon which plaintiffs in error insist that the judgment of the trial court should be reversed are (1) that the writ of mandamus is a discretionary one, and the court should not in its discretion compel a canvassing board to canvass returns which had been fraudulently made; and (2) that no notice as required by law was given of the election at which the freeholders were elected to prepare and propose the charter.
¶2 The proceedings in this case looking to the framing, proposing, and adopting the charter were had under the provisions of section 3, art. 18, Const. (Bunn's Ed. § 413). On May 22, 1908, between the date on which the election was held for the election of the freeholders and the date of the election for the adoption of the charter, an act of the Legislature (Laws 1908, p. 190, c. 12, art. 4) entitled "An act to enable all cities containing a population of more than two thousand inhabitants to frame and adopt charters for their own government, and to extend and define their powers," was approved by the Governor; but the provisions of this act in so far as they affect the proceedings for framing, proposing and adopting charters by municipal corporations are in the exact language of section 3 of article 18 of the Constitution, except one difference which is immaterial in the consideration of this case. By the provisions of this section of the Constitution an election of a board of freeholders may be called at any time by the legislative authority of the city, and shall be called by the chief executive of any city within 10 days after there shall have been filed with him a petition demanding the same for the purpose of determining whether further proceedings shall be had for the purpose of adopting a charter for the city, and for the purpose of electing a board of freeholders to prepare and propose a charter. The charter...
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