Town of Grove v. Haskell
| Decision Date | 14 September 1909 |
| Docket Number | Case Number: 583 |
| Citation | 24 Okla. 707,104 P. 56,1909 OK 236 |
| Parties | TOWN OF GROVE v. HASKELL, Governor, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. COUNTIES--County Seat Election--Petition--Sufficiency. The petition on which the county seat election, provided for in section 6, art. 17 (Snyder's Const. Okla., p. 340), of the Constitution, is called need not contain the name of any town to which removal or change is sought. The statutory form (section 3, art. 4, c. 31, p. 379, Laws 1907-1908) substantially meets the requirement of the Constitution.
2. COUNTIES--County Seat Election--Notice--Harmless Irregularity. The public notice of a special election called to vote upon the change, removal, or relocation of a county seat, provided for in section 6, art. 17, of the Constitution (Snyder's Const. Okla., p. 340), should be given as prescribed in the proclamation of the Governor; but where, in a controversy arising out of an election held, it is shown that the provisions in reference to notice were substantially complied with, and there is no averment or showing that the electors did not have actual notice or knowledge of the election, and failed to participate therein by reason thereof, the same will not be held void or set aside. The vital and essential question in such cases is, Did the want of notice or knowledge result in depriving a sufficient number of the electors of the opportunity to exercise their franchise as to change the result of the election? if not, then the will of the electors, as expressed, should be sustained.
3. ELECTIONS--Harmless Irregularity in Form of Ballots... The provisions of section 2, art. 3, c. 31, p. 329, Laws 1907-1908 prescribing the duties of the county election board in the preparation of ballots, are mandatory as to such board, and should be observed by a special election board, charged with the same duties; but, where such special election board ignores some of these provisions, and prepares ballots different in form and detail from those prescribed, but distributes the same uniformly throughout the county, and they are received by the electors, and by them in good faith cast, they will not, in the absence of fraud, be disregarded and an election held therewith annulled.
4. ELECTIONS--Statutes--Duty to Uphold--Irregularities--Presumptions. Elections are the ultimate expression of the sovereign will. When fairly expressed--that is, free from taint of fraud or charge of improper conduct--it becomes the duty of courts to sustain them, where it can be done by a liberal construction of the laws relating thereto, rather than defeat them by requiring a rigid conformity to technical statutory directions, which do not affect the substantial rights of the electors. All reasonable presumptions as to their regularity will be indulged, and the penalty of disfranchisement will not be visited upon a qualified voter where he is not at fault, except in response to a plain mandatory requirement of the statute.
5. COUNTIES--County Seat Election--"Place." A tract of land or locality which, prior to the date of a proclamation issued by the Governor calling a county seat election, had been by its owners surveyed and platted, and which was, after the issuance of the proclamation, and before the election, the scene of a public picnic, attended by a large number of the voters of the county, and at which a public auction of the lots of the place was held, and public notice given of its metes and bounds, and the location of which was well known to the voters of the county, is a "place," as the word is used in Const. art. 17, sec. 6 (Snyder's Const. Okla., p. 340).
6. COUNTIES--County Seat Election--Bribery. Under the provisions of section 7, art. 17 (Snyder's Const. Okla., p. 341), the giving or offering of lots, land, or other things of value, either directly or indirectly, for the purpose of influencing voters for or against any competing town or place in a county seat election, is bribery, and votes secured as a result thereof are illegal and void, and should not be counted.
Ad. V. Coppedge, J. G. Austen, and W. H. Kornegay, for plaintiff, citing: 15 Cyc. 320 to 326; McCrary on Elections, sec. 185; Abbott on Municipal Corporations, secs. 73, 75; Throop on Public Officers, sec. 150; George v. Oxford, 16 Kan. 72; People v. Com'rs, 3 Neb. 244; Cooley on Const. Lim., sec. 603; Jones v. State, 1 Kan. 259; State v. Com'rs, 75 Mo. 614; Marion v. Territory, 1 Okla. 210; McClelland v. Erwin, 16 Okla. 612; State ex rel. v. Taylor (N. C.) 12 L. R. A. 202; Black on Interpretation of Laws, sec. 13; Fall River Co. v. Powell, 5 S.D. 49.
Owen & Stone and Bailey & Kistler, for defendants, citing: Desha v. Smith, 10 Iowa, 217; State v. Skirving, 27 N.W. 723; People v. Crissey, 91 N.Y. Ct. App. 635; Foster v. Scarff, 15 Ohio St. 537; Demaree v. Johnson, 50 N.E. 376; Wheat v. Smith, 50 Ark. 266; Adsit v. Secretary of State, 11 L. R. A. 537; State ex rel. v. Millar, 21 Okla. 448.
Original proceeding for an injunction by the Town of Grove against C. N. Haskell, Governor, and others.
Ad. V. Coppedge, J. G. Austen, and W. H. Kornegay, for plaintiff
Owen & Stone and Bailey & Kistler, for defendants
¶1 This is a proceeding brought by the town of Grove, praying an injunction restraining the Governor from issuing a proclamation carrying out the expressed will of the voters of Delaware county, as shown by the returns in a county seat election brought and held for the purpose of changing, removing, or relocating the county seat of that county. A place called Jay was, on the face of the returns, the successful competitor in the election. The petitions filed with the Governor, upon which it was called, conformed to the requirements of an act of the legislative assembly of 1907-1908, found at page 378, c. 31, of the laws of that session, and petitioned the Governor to call an election to relocate the county seat of Delaware county under the provisions of section 6, art. 17 (page 340, Snyder's Const. Okla.) of the Constitution. It is contended, on the part of counsel for plaintiff, that these petitions should have named some place to which the electors desired to have the county seat changed or removed. The section of the Constitution relating to the removal of county seats, after stating that the towns named should be and remain the county seats for their respective counties until changed by a vote of the qualified electors thereof, provides that "upon a petition or petitions in writing, signed by twenty-five per centum of the qualified electors of the county," the same "having been filed with the Governor at any time after four months after the admission of the state into the Union, the Governor shall within thirty days issue his proclamation calling an election to be held in such county not less than sixty nor more than seventy days from the date of his proclamation." The same section of the Constitution then provides that competing towns, aspirants for the county seat, may "more than twenty days prior to such election, file with the Governor verified petitions therefor as above mentioned, signed by not less than three hundred qualified electors of said county." It is not claimed by counsel that there is any specific provision in the Constitution sustaining their contention but it is urged that it was not within the contemplation of the framers of the Constitution that an election should be called except on petitions showing a desire for a removal to some specific place. To our minds the Constitution is not susceptible to the construction urged. Two petitions are provided for; one by the qualified electors of the county filed for the purpose of calling an election. There may not be any other town than the county seat town competing or desiring at that time to compete. The provision was so framed that a county seat agreeable to all the county could call an election, and settle the question so as to qualify the officials to expend public money for courthouse and jail construction prior to April 1, 1909, as provided for in the latter part of paragraph "b," § 6, art. 17. After the first petition is filed, then it is provided that those towns desiring to enter could do so on filing, 20 days prior to the election, a verified petition signed by 300 qualified electors of the county. The scheme as written is a simple and practical one, and to our minds there is no reasonable ground on which to predicate the construction for which contention is made.
¶2 The petition filed in this court presents four different causes of action. The defendants have answered them in four counts, to each of which counsel for plaintiff have filed a demurrer challenging their sufficiency to constitute a defense. The case is an original proceeding, brought under the provisions of section 16, art. 4, of the chapter on Elections (Laws 1907-1908, p. 385, c. 31), and in order to facilitate the hearing and make definite the issues, we have carried the demurrer in each instance to the allegations of the petition to ascertain whether a cause of action was stated.
¶3 The first proposition under the pleadings to which our attention is directed is that of the notice given under the proclamation. The Constitution provides (section 6, art. 17, supra) that upon the filing of the petition, "such election shall be held under the provisions of the election laws of the state, and upon such public notice of such election as the Governor in his proclamation may direct." The proclamation provides that:
"Notice of such election to be given by publication of this proclamation for six consecutive weeks preceding said election in the Grove Sun, published at Grove, Oklahoma, and by posting in a public place in the towns or places of Kansas, Needmore, Bucha, Zena, Cleora and Rose, for a period of at least six consecutive weeks next preceding the date of such election as herein ordered."
¶4 Election was called for the 8th day of December, 1908, the...
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