Turner v. Hamilton

CourtUnited States State Supreme Court of Wyoming
Citation80 P. 664,13 Wyo. 408
PartiesTURNER v. HAMILTON
Decision Date29 April 1905

ERROR to the District Court, Natrona County.

Election contest brought by Adah M. Turner against May Hamilton, the parties having been opposing candidates for the office of County Superintendent of Schools. A demurrer was sustained to the petition, and again to an amended petition, and thereupon judgment was rendered against the plaintiff, who instituted a proceeding in error. The facts are stated in the opinion.

Reversed and remanded.

Butler & Hagens, for plaintiff in error.

Where a cross is put on the official ballot in the square at the head of the party ticket without erasing the name of the candidate upon that ticket, every candidate in that column is voted for, notwithstanding there may be a cross opposite the name of some candidate in another column. There were several ballots at the election in question where there was a cross in the square at the head of plaintiff's party column and her name was not erased, but the ballot was counted for her opponent, the defendant, because a cross was found opposite the defendant's name. That was error and the ballot should have been counted for plaintiff. (State v Hagen (Ia.), 60 N.W. 108; Vallier v. Brahie (S Dak.), 64 N.W. 180; McKittrick v. Pardee, 65 N.W. 23; Young v. Simpson (Colo.), 42 P. 666; Loucks Case, 3 Pa. Dist Rep., 127.) It has been held that such a ballot should not be counted for either candidate. (State v. Peter, 57 P. 814; State v. Sadler, 58 P. 284.) If, however, it should not be counted for all the candidates in the party column, then it would be a ballot wherein the voter voted for two candidates for the same office, and it should not then be counted. (Dickerman v. Gelsthorpe, 47 P. 999; State v. Fransham, 48 P. 1; Tedde v. Smith, 41 P. 454; Salcido v. Roberts, 67 P. 1077.) On another class of ballots there was a cross in the square at the head of the column in which plaintiff's name appeared and a cross in the square opposite to the space on another column where the name of the condidate for County Attorney should appear, and above the name of the defendant. Thus there was no attempt by the elector on such ballots to vote for the defendant, and yet such ballots were counted for her, which we contend were wrongly counted. (Salcido v. Roberts, 69 P. 431.) In another class of ballots there was a cross in the square at the head of plaintiff's party column and plaintiff's name was erased, but no cross appeared after the name of defendant, yet the ballot was counted for her, and wrongly counted, as we contend. In another class the cross extended across the whole of plaintiff's party column without any cross anywhere else to indicate that the voter desired to vote for the defendant, yet the ballot was wrongly counted for all of the candidates upon the other part of the ballot. (Van Winkle v. Crabtree, 55 P. 831.)

The instructions printed on the official ballot as required by statute are mandatory and must be complied with by the voter to entitle the ballot to be counted. (Richardson v. Jameson, 39 P. 1050; Taylor v. Bleakley, 39 P. 1045; State v. Peter, supra; Van Winkle v. Crabtree, supra; Dickerman v. Gelsthorpe, supra; State v. Fransham, supra; Sawin v. Pease, 42 P. 750; Bechtel v. Albin, 33 N.E. 967; Heiskell v. Landrum, 46 P. 120; Apple v. Barcroft, 41 N.E. 1116; Murphy v. City, 51 P. 1085; City v. Fitzgerald, 58 P. 699.) The voter's intention cannot be considered in determining the legality of any ballot. (Kearns v. Edwards, 28 A. 723; Sturgeon v. Thompson, 37 Neb. 39; Powin v. Wimburg, 134 Ind. 193; Sego v. Stoddard, 36 N.E. 204; Parker v. Orr, 41 N.W. 1002.) The intention of the voter is immaterial as against the express provisions of the law. (Whittan v. Zahorek (Ia.), 59 N.W. 57.) Where it is impossible to determine the choice of the elector, the ballot is void. (R. S. 1899, Sec. 341.) Neither should a ballot be counted where it contains an identifying mark. (Patterson v. Hanley, 68 P. 821; People v. Campbell, 70 P. 918; Maddox v. Walthall, 74 P. 1026; Merkley v. Trainor, 75 P. 656; Kincaid v. Reid, 75 P. 657; Weler v. Caldwell, id., 1031.)

Fred D. Hammond and W. R. Stoll, for defendant in error.

There was no amended petition in the record. The only petition is the one that was heard upon the former hearing. Even if the petition in question could be considered the amended petition, or if such a document should be discovered, it would come too late, and the judgment of the court sustaining the demurrer thereto should be sustained. And the so-called amended petition could not possibly have been filed in time to authorize a hearing of any of the grounds of contest set up therein. A point of contest entirely foreign to the point originally set up cannot be set up for the first time by way of amendment if the time has elapsed within which there might be a contest brought.

The amended petition is entirely insufficient as an amended petition for any purpose whatever. Such a petition should be complete in itself. The paper in question does not purport to be a complete petition; but it refers to the previous petition and seeks to amend by inserting certain things at certain places. Again, there is no prayer for any relief in the paper supposed to be an amended petition. One of the grounds of the demurrer challenged the sufficiency of the petition because not verified according to statute. While that matter could have been reached by motion, the fact is that the demurrer was sustained and thereupon, instead of amending or asking to amend, the plaintiff in error stood upon her petition and as the so-called amended petition was clearly insufficient, and the case was dismissed for that reason, it is submitted that the judgment should be affirmed.

VAN ORSDEL, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

VAN ORSDEL, JUSTICE.

This is an election contest proceeding. At the general election held on the 6th day of November, 1900, the plaintiff in error and defendant in error were opposing candidates for the office of Superintendent of Schools in Natrona County. The plaintiff in error was the Republican candidate and the defendant in error was the Democratic candidate. The vote as counted by the County Board of Canvassers gave the plaintiff in error 390 votes and the defendant in error 403 votes, and thereupon a certificate of election was issued to the defendant in error.

Within the time required by law, the plaintiff in error filed her petition in the District Court of Natrona County, contesting said election; in which she specified a number of errors made in the canvass by the judges of election, and set out in detail the number of ballots in the various precincts that she claimed had been illegally counted for the defendant in error.

The defendant filed a demurrer alleging: "That the petition does not state facts sufficient to constitute a cause of action." The court sustained this demurrer. The plaintiff appealed to this court. The appeal was dismissed for the reason that the order, sustaining the demurrer to the petition, was not a sufficient judgment or final order in the action upon which to base a proceeding in error. (Turner v. Hamilton, 10 Wyo. 177, 67 P. 1117.)

When the case was remanded to the District Court for further action, the plaintiff amended her original petition by filing a statement setting forth certain grounds of contest to be inserted in the original petition. Defendant again demurred generally to the amended petition, and the court sustained the demurrer. Plaintiff refusing further to plead, a judgment was entered by the court dismissing said action and assessing costs against the plaintiff. From this judgment the plaintiff appeals to this court. It is contended by counsel for defendant in error that the amended petition states a new cause of action, and that said amendment, having been made after the time prescribed by statute for instituting a contest had expired, the trial court was without jurisdiction to hear and determine the action. The record is silent as to any permission having been given by the trial court to the plaintiff to amend her petition, but counsel for defendant demurred to the petition, and the court heard the demurrer and ruled upon it and rendered judgment in the case. It will, therefore, be presumed that plaintiff had permission to amend her petition.

The amendment complained of sets out several grounds of contest, in addition to those contained in the original petition. It alleges that in Muddy precinct there were four ballots each of which had the name of the elector written on the back of the ballot; that at the election two residents of Converse County were permitted to vote in Casper precinct; that in Casper precinct there were three ballots marked with certain spots, which were put there for the purpose of identification; that in West Casper precinct there were six ballots that were not marked in accordance with the instructions as printed on the official ballot, and that all of these ballots were counted for the defendant in error. None of these matters having been alleged or set forth in the original petition, we are of the opinion that they constitute new and separate causes of contest, and that the plaintiff could not avail herself of these causes of contest, unless the amendment had been filed within the time required by statute for instituting election contests. This was not done.

Counsel for defendant in error seem to treat the statement, amending the original petition, as an amended petition, and complain that it is not properly verified. If in fact any verification was necessary, the defect could not properly be raised by demurrer, but by a motion to strike from the files. No motion having...

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