Tazwell v. Davis

• Citation: 64 Or. 325,130 P. 400
• Parties: TAZWELL v. DAVIS.
• Decision Date: 04 March 1913
• Court: Oregon Supreme Court

130 P. 400

64 Or. 325

TAZWELL v. DAVIS.

Supreme Court of Oregon

March 4, 1913

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Election contest by George Tazwell against George N. Davis. From an order dismissing the petition and quashing the proceeding the contestant appeals. Proceeding dismissed.

This is a special proceeding to contest the right of defendant to the office of circuit judge of department No. 4 of the circuit court of the state of Oregon for the Fourth judicial district, comprising Multnomah county. The trial court sustained a motion to quash the proceeding, and dismissed the petition. The contestant appeals. The election was held on the 5th day of November, 1912, at which George Tazwell contestant, and George N. Davis, contestee, were candidates for the office of circuit judge. On the 21st day of that month contestant filed a petition for a recount of the ballots, and a notice of contest, naming the date for the hearing of the contest as December 6, 1912. The petition and notice were amended on November 30, 1912. Contestee moved to quash, for the reason that the court had no jurisdiction to try the proceeding.

Henry St. Rayner, of Portland (Bradley A. Ewers, of Portland, on the brief), for appellant.

A.E Clark, of Portland, for respondent.

BEAN J. (after stating the facts as above).

In the absence of any statutory proceeding, the only remedy in the nature of a contest known to the common law is quo warranto, or, in modern times, an action in the nature of quo warranto. The determination of an election contest is a judicial function only so far as authorized by the statute. The court exercising the jurisdiction does not proceed according to the course of the common law, but must resort to the statute alone to ascertain its powers and mode of procedure. 15 Cyc. 394; Bradburn v. Wasco County, 55 Or. 539, 541, 106 P. 1018; Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am.St.Rep. 786; Linegar v. Rittenhouse, 94 Ill. 208, 213.

The questions for consideration raised by the motion to quash are: (1) Has the court jurisdiction of the subject-matter of a contest of election of the office of circuit judge? (2) Does the petition state facts sufficient to constitute a cause of contest of the office in question, and invest the court with jurisdiction of the subject-matter?

We will notice some of the provisions of the election laws of this state. Section 3422, L. O.L., provides that the county clerk, immediately after making the abstract of votes given in his county, shall make a copy of each of said abstracts, and transmit it to the Secretary of State, and it shall be the duty of the Secretary of State, in the presence of the Governor, to proceed within 30 days after the election, and sooner if all the returns be received, to canvass the votes given for different officers, including judges of the circuit court and district attorneys; and the Governor shall grant a certificate of election to the person having the highest number of votes, and shall also issue a proclamation declaring the election of such person. Official canvass of the returns of the election of November 5, 1912, was made in conformance with the above section November 29, 1912.

Section 3524, L. O.L., directs that any action to contest the right of any person declared elected to an office, unless a different time be stated, must be commenced within 40 days after the return day of the election, unless the ground of such an action is for the illegal payment of money or other valuable thing. It is held that the return day mentioned in this section is the day on which the canvass begins, or after the official declaration of the result. 15 Cyc. 400; Carlson v. Burt, 111 Cal. 129, 43 P. 583; Carbis v. Dale, 23 Utah, 463, 65 P. 204; Broaddus v. Mason, 95 Ky. 421, 25 S.W. 1060.

Until the vote has been canvassed and the certificate has been issued by the proper officer, no cause can arise for a contested election, because until that time it cannot be known who is officially declared elected. Barnes v. Gottschalk, 3 Mo.App. 111. An election contest is a statutory proceeding to obtain a recanvass of the votes cast at an election, as the result of which some person has been declared elected; and, where the court finds that no one has been declared elected, it has no jurisdiction of the contest, and cannot declare the contestant elected. 15 Cyc. 408; Austin v. Dick, 100 Cal. 199, 34 [64 Or. 331] P. 655. This contest in the case at bar, having been initiated November 21, 1912, prior to the time of the official canvass of the votes by the Secretary of State, and before a certificate of election had been granted to either candidate, was premature. Evidently, as the Fourth judicial district comprises but one county, the contestant refers in his petition to the returns made by the county clerk. We will pass this point, however, and will examine some of the other questions presented, on account of the importance of the matter involved.

The petition follows the form prescribed in section 3537, L. O.L. It is maintained by contestant that the proceeding is authorized by chapter 3, p. 15, of the Laws of 1909, popularly known as the Corrupt Practices Act, being section 3486 et seq., L. O.L.

Section 3529, L. O.L., is as follows: "Any elector of the state, or of any political or municipal division thereof, may contest the right of any person to any nomination or office for which such elector has the right to vote, for any of the following causes: 1. On the ground of deliberate, serious and material violation of any of the provisions of this act, or of any other provisions of the law relating to nominations or elections. 2. When the person whose right was contested was not, at the time of the election, eligible to such office. 3. On account of illegal votes, or an erroneous or fraudulent count or canvass of votes."

Section 3525 directs that an action or proceeding to annul and set aside the election of any person declared elected to an office must be made or filed in the circuit court of the county in which the certificate of his nomination as a candidate for the office to which he is declared nominated or elected is filed, or in which the incumbent resides.

Section 3531 enacts that, when the reception of illegal votes is alleged as a cause of contest, it shall be sufficient to state generally that in one or more specified voting precincts illegal votes were given to the person whose nomination or election is contested, which, if taken from him, will reduce the number of his legal votes below the number of legal votes given to some other person for the same office; but no testimony shall be received of any illegal votes, unless the party contesting such election deliver to the opposite party, at least three days before such trial, a written list of the number of illegal votes, and by whom given, which he intends to prove on such trial. This provision shall not prevent the contestant from offering evidence of illegal votes not included in such statement, if he did not know, and by reasonable diligence was unable to learn, of such additional illegal votes, and by whom they were given, before delivering such written list.

Section 3532 provides, among other things, that any petition contesting the right of any person to a nomination or election shall set forth the name of every person whose nomination is contested, and the grounds of the contest, and shall not thereafter be amended, except by leave of the court; that on the filing of any such petition the clerk shall immediately notify the judge of the court, and issue a citation to the persons whose nomination or office is contested, citing them to appear and answer, not less than three nor more than seven days after the date of filing the petition; and that the contest shall take precedence over all other business. This section was not followed as to the issuance of a citation, but instead thereof a notice of contest was served. Inasmuch as contestee appeared, we do not deem this variation material.

The act of 1909 is general in its scope, particularly section 3529, L. O.L., and we think authorizes any elector of the state, or of any political division thereof, to contest the right of any person to any office for which such elector has the right to vote, including the office of circuit judge. Prior to this the act of 1854 (Rev.St. 1854-55, [64 Or. 333] pp. 75, 76, §§ 41-46), being sections 3426 et seq., L. O.L., only made provisions for the contest of an election to any county, district, or precinct office, clearly pertaining to an office of the county, or to some subdivision thereof, and not to the office of circuit judge. The original petition was challenged by a motion, upon the ground, inter alia, that the petition did not state facts sufficient to constitute a cause of contest.

Section 3531, L. O.L., in substance, provides for amending such a petition by permitting the contestant to deliver to the opposite party, at least three days before the trial, a written list of the illegal votes, and by whom given, which he intends to prove on such trial. Instead of following this method, the contestant, by leave of court, filed an amended petition, and by his brief and argument contends that this petition is sufficient. Therefore we do not consider that the question of amendment is before this court. The amended petition appears to have been drawn with care, and states the case as favorably to the contestant as the facts would warrant.

With this understanding we will consider the facts stated in the petition. The petition contains three counts. After the formal allegations as to the election, the candidacy of the parties, and the qualifications of contestant for the office stating...