Town of Eufaula v. Gibson

• Decision Date: 13 November 1908
• Docket Number: Case Number: 226
• Citation: Town of Eufaula v. Gibson, 98 P. 565, 22 Okla. 507, 1908 OK 221 (Okla. 1908)
• Parties: TOWN OF EUFAULA v. GIBSON et al.
• Court: Oklahoma Supreme Court

1908 OK 221

98 P. 565

22 Okla. 507

TOWN OF EUFAULA v. GIBSON et al.

Case Number: 226

Supreme Court of Oklahoma

Decided: November 13, 1908

Syllabus

¶0 1.COUNTIES--County Seat--Election--Majority--What Constitutes.For the purpose of determining the majority of the votes cast at a special election called to vote upon the location or relocation of a county seat in accordance with the provisions of section 6 of article 17 of the Constitution(sections 328 to 334, inclusive, Bunn's Edition), all of the valid legal ballots cast on the question intelligible as well as unintelligible should be considered, and to effect a removal it must be made to affirmatively appear that a majority of this number were cast in favor thereof.

2.SAME--Evidence--Re-Examination and Recount of Ballots.Where, in such a case, there is an allegation showing that the city, town, or place mentioned in the certificates as having received a majority of the votes cast did not in fact receive such majority, but that there were other ballots not counted in said certificates proper to be considered in estimating the number on which such majority should be computed, then the ballots became the best evidence of the facts and should be counted.

3.SAME--Ballots Excluded.Distinguished ballots, illegal ballots, such as those cast by persons other than qualified electors, and blank ballots should be excluded from estimation in making up the aggregate number on which such majority is to be computed.

4.ELECTIONS--"Distinguished Ballots"--What Are.A "distinguished ballot" which cannot be counted, is one which bears an identification mark, made by the voter or made with his connivance, consent, or knowledge, and made for the purpose of distinguishing that ballot from the others cast.

5.COUNTIES--County Seat--Elections--Majority--Ballots Counted.Ballots on which the election officials have placed numbers. if otherwise valid, should be counted as cast, where it is not shown that such numbering was done prior to the time of the canvass and with the connivance, consent, or knowledge of the electors, for the purpose of fraudulently distinguishing them.

Original proceedings in a county seat controversy by the Town of Eufaula against Charles Gibson and others, constituting the Board of Commisioners of McIntosh County, and others, to restrain the carrying into effect of a proclamation by the Governor, declaring the Town of Checotah to have received a majority of all the votes cast for county seat of Mcintosh County.Petition sustained.

Kane, J., dissenting.

Tully & Collier, for plaintiff.

Dale, Bierer & Hegler, Horace B. Reubelt, Charles R. Freeman, and Chessie McIntosh, for defendants.

DUNN, J.

¶1 This controversy grows out of a special election called by the Governor of the state of Oklahoma pursuant to a petition filed in his office by the electors of McIntosh county.The returns of the same were, in accordance with law, forwarded to his office, and he canvassed the same, and on the 6th day of June, 1908, issued his proclamation, in which he declared that the "total vote cast at said election for county seat of Mcintosh county, Oklahoma, was 3,231; and that of said votes the city town, or place of Checotah, which was duly and legally selected as candidate for county seat at said election, received 1,647 votes, which is a majority of all the votes cast" at said election, and, in accordance therewith, proclaimed Checotah as the legally elected county seat of McIntosh county.Eufaula and Stidham were each competitors in the contest.The former, being the town nominated as the county seat by the constitutional convention, received 1,200 votes; the latter, 384.This action is brought in this court by Eufaula for the purpose of restraining the carrying into effect of the said proclamation under the authority of sections 16and17 of article 4, of chapter 31, p. 385, of the Session Laws of Oklahoma of 1907-08, being one of the enactments of the first state Legislature.On the making up of the issues, the cause was referred to John A. Remy, Esq., as a special referee, to take the evidence and report the same with his findings of fact and conclusions of law.

¶2 It will be observed that the Governor based his finding and proclamation upon the number of votes cast which were actually counted for the different candidates.Counsel for plaintiff in the petition filed takes exception to this manner of arriving at the actual number of votes cast, and in paragraph 3 thereof averred that the proper rule to be observed in the ascertainment of the actual number of votes cast should be by taking into consideration not only the votes which were actually cast and counted for the different candidates, but all the ballots which were cast, including those which were mutilated and uncounted, as well as those which were intelligible and counted.This paragraph is as follows:

"That at the said election held on the said 23rd day of May, 1908, there were in fact cast thirty-three hundred and fifty-two (3,352) votes, and that of said votes so cast, the town of Checotah received sixteen hundred and forty-seven (1,647) votes, the town of Eufaula received twelve hundred (1,200) votes, the town of Stidham received three hundred and eighty-four (384) votes, three votes were marked on the pollbooks 'Challenged,' fifty-three (53) ballots returned marked 'Mutilated,' two (2) votes marked on the poll list 'Exposed,' and sixty-five (65) votes not accounted for at all, and that a majority of said votes cast is sixteen hundred and seventyseven (1,677), and that, notwithstanding, the said town of Checotah received thirty (30) votes less than a majority of all the votes actually east at said election, his excellency, Charles N. Haskell, Governor of the state of Oklahoma, acting as a board of canvassers, wrongfully rejected all of the votes shown, by said pollbooks as cast, except the votes that were cast for the respective towns that were candidates at said election, and the votes returned as mutilated, and as shown by a copy of his proclamation which is hereto attached, marked 'Exhibit A,' and made a part hereof, unlawfully declared that Checotah had received a majority of all the votes east at said election, and was named as the location of the permanent county seat of said county of McIntosh, state of Oklahoma."

¶3 The referee after qualifying under his appointment with the parties before him, opened the ballot boxes containing the ballots polled at the election and received all of the evidence offered.It may well be stated here that there is no allegation of fraud of any kind, and it is agreed that the ballots before the court are the same ones cast by the electors of the county.The referee found and concluded as a result of his investigation as follows:

"I therefore find from the evidence and a computation of all ballots cast in said election in said county: That the total number of votes and ballots, including the mutilated ballots, were three thousand, three hundred and fifty-five (3,355).That the total number of ballots cast, exclusive of mutilated ballots were three thousand, two hundred sixty-eight (3,268).Of the total number of votes cast, exclusive of mutilated ballots, Checotah received one thousand, six hundred and sixty-four (1,664); Eufaula, one thousand two hundred and fifteen (1,215); and Stidham, three hundred eightynine (389).

Checotah 1,664

Eufaula 1,215

Stidham 389

3,268

"That the total number of mutilated ballots were eightyseven (87).That neither of said towns, candidates in said election for the location of said county seat, received a majority of the votes cast."

¶4Counsel for both parties have filed exceptions to this report; counsel for Eufaula taking the position that many of the ballots which were counted for Checotah by the referee were mutilated, and should not have been so counted, while counsel for Checotah urge with equal insistence that many of the votes which were declared by the referee as mutilated, and not to be counted, were in fact east for Checotah.No claim is made on the part of Eufaula that it received a majority of the votes cast in the election.The whole effort of its counsel being devoted in reducing the number of votes counted for Checotah to a point below a majority of those cast, while the effort of counsel for Checotah has been to secure the counting of a sufficient number to raise its number above the majority of votes considered in making up the total number of votes cast, or to reduce the total considered to a point where those counted would constitute the number required.

¶5We are fully impressed with the importance of this controversy, not only to the litigants immediately involved, but to the citizens of the county of McIntosh and the state generally, and particularly to those counties where controversies of like character are pending, and we have given the question involved herein our most anxious and considerate attention.The ballots brought into question by the parties have all been scrutinized by the entire court, and on the facts found there is entire accord among its members.

¶6Counsel for Checotah objected to the opening of the ballot boxes and recounting the ballots in the absence of a charge of fraud, basing this objection upon that portion of section 7, art. 1, c. 17, p. 238,Sess. Laws 1905, providing for a certificate showing the number of votes received by each candidate, and which provides that:

"Such certificates when properly executed and returned shall be prima facie evidence of the number of votes received by each candidate as shown therein and in case of variance between the totals as shown by said certificates and the tally sheets, in the absence of fraud, the certificate shall control."

¶7 The objection was overruled, owing to the language of our Constitution, which provides that in county seat elections there is to be considered not only the vote counted for the different candidates, but this vote,...