Henricksen v. Clark

201 P. 1071, 102 Or. 250, 1921 Ore. LEXIS 221

Opinion

BURNETT, C. J.

1. The demurrer calls for a construction of the notice of contest which in this proceeding performs the function of a complaint. In this connection we are governed by Section 85, Or. L., reading thus:

“In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.”

Taking the paper altogether, it is clear that there is no attempt to assert a canse of contest against the defendants in any other capacity than as directors. To institute a contest against private parties wholly disconnected with the district would be utterly futile and ineffectual. But the notice discloses that only the conduct of the defendants as directors is called in question. The complaint is sufficient as against the objection that there is a defect of parties.

2. It is not necessary that a candidate be nominated for any office under the election system of this state, in order to receive the votes of electors at the free elections prescribed by our Constitution. In order to get his name on the official ticket prepared by the election authorities it is requisite that a candidate be properly nominated by a petition or an assembly of electors. But this is only permissive. It is not mandatory in irrigation district elections. The voter has a right to vote for whom he chooses for any office.

3. Moreover, the sole duty of a canvassing board is to count the ballots and issue a certificate reciting what those ballots disclose. Such a board has no jurisdiction to raise issues in the nature of quo warranto and determine the eligibility of an elected candidate to hold the office to which he has been elected.

These considerations dispose of all the issues of law which were raised by the demurrer. They were correctly decided by the Circuit Court. The judgment is affirmed. Aeeirmed.