Wagoner County Election Board v. Plunkett

1956 OK 329, 305 P.2d 525, 1956 Okla. LEXIS 654

• Court: Supreme Court of Oklahoma
• Decided: December 14, 1956
• Docket: 37561
• Status: Published

Opinions

PER CURIAM.

It is alleged in plaintiffs’ separate petitions in the District Court of Wagoner county that illegal absentee. ballots were cast in the run-off primary election for State Senator held on July 24, 1956, and that such ballots were counted and considered by the Wagoner County Election Board in tabulating their returns. It is sought to change the result of the election by excluding, in these actions, the absentee ballots which are alleged to be illegal and improperly counted by the Wagoner County Election Board. While numerous assignments of error are made it is suggested that we first determine the question of the jurisdiction of the District Court to entertain these actions.

The facts are that John W. Russell, Jr., and Tom Payne, Jr., were candidates for State Senator from the district comprising Okmulgee and Wagoner counties in the run-off primary election held on July 24, 1956. Russell received a majority of the votes and Tom Payne, Jr., filed application with the State Election Board for. a recount of the ballots cast in Wagoner county. The State Election Board referred the matter to the County Election Board for recount pursuant to the provisions of 26 O.S.1951 § 391. The District Judge determined that the ballots, including absentee ballots, had not been exposed to the reach of unauthorized persons and in conjunction with the County Election Board proceeded to conduct the recount. Of 976 absentee ballots cast in the election the Board determined to count as legal ballots a total of 711. Plaintiff, Payne, receiving 24 and Russell 687.

On July 30, 1956, and before the results of the recount had been certified to the State Election Board, the two actions involved in this appeal were filed in the District Court of Wagoner county. One action is by Warren D. Plunkett, a Democrat voter in Wagoner county who voted for Tom Payne, Jr. The other action was filed by Tom Payne, Jr., a Democrat voter and candidate residing in Okmulgee county. These petitions separately allege that the County Election Board, and its members, had failed and refused in their recount to properly determine the qualifications of absentee voters and to properly determine whether the absentee voters had complied with statutory requirements in the procurement and voting of absentee ballots.

The plaintiffs, Plunkett and Payne, further allege in their separate petitions, and pray, that the District 'Court direct all absentee ballots be brought into court; that plaintiffs be permitted to present evidence to the court regarding the illegality of the absentee ballots; and that the County Election Board and its members be restrained from certifying the results of their recount to the State Election Board; until plaintiffs are permitted to present evidence to the District Court in support of their petitions. They asked the District Court to determine which absentee ballots were legally cast and to count only those which the District Court determines to be valid, or if the District Court should determine that the absentee ballots were tainted with illegality to refuse to count any of them.

On the day the petitions were filed the District Court restrained the defendant County Election Board and its members from certifying the results of the recount to the State Election Board. Thereafter John W. Russell, Jr., filed an intervention in each of' the cases.

For convenience Warren D. Plunkett and Tom Payne, Jr., will be referred to either by name, or as plaintiffs. The'Wagoner Coimty Election Board, and its members, will be referred to as defendants, or by name, and John W. Russell as inter-venor.

Defendants filed answers and contended that the District Court was without jurisdiction to conduct a hearing on the matters set forth in plaintiffs’ petitions. The District Court overruled pleas to the jurisdiction, and demurrers, and the cases were consolidated and came on for trial on September 17, 1956.

■ The District 'Court found that persons voted absentee ballots who were not absent from their voting precincts and were not suffering from sickness or disability; that some absentee voters did not sign their affidavits in the presence of the notary public who later completed the affidavits; and that in a few instances a relative, or other person, other than absentee electors either marked the ballot or signed the affidavit. The court found that there was no fraudulent conspiracy to obtain illegal ballots by corrupt or illegal methods; ruled that these cases involve no use of relief fund checks; but did find that there were more than enough absentee ballots cast which failed to comply with the absentee ballot law to change the result of the run-off primary election. The court further found that it was not possible to determine with mathematical certainty the number of ballots so cast but gave no reason why such impossibility existed.

The District Court refused to recognize any of the absentee ballots voted in Wagoner county, including those admittedly legal, and restrained the County Election Board from including in the official returns to the State Election Board any returns from the absentee ballot box, or any result from the absentee ballots cast in said election. The defendant Board was further ordered to certify a return to the State Election Board without including therein the returns from the absentee ballot box. However, the Board was ordered to stay all proceedings under the judgment pending perfection of an appeal to this court and a determination of the same.

.From the foregoing it is apparent the District Court rejected the recount conducted by the County Election Board and proceeded independently of the Board to try the issues set forth in plaintiff’s petitions.

Defendants and Intervenor have appealed and with permission of this court have confined their argument to one proposition: “The District Court had no authority to enjoin the County Election Board of Wagoner county, Oklahoma, from certifying the results of the run-off primary election for State Senator.”

Plaintiffs bring their actions as private citizens and electors under certain constitutional guaranties. “Free and equal elections” Art. 3, § 7; “purity of the ballot”, Art. 3, § 6; and “there can be no wrong without a remedy,” Art. 2, § 6. They assert that in view of these constitutional provisions the courts must take jurisdiction where the Legislature fails to provide an adequate remedy or procedure to implement these constitutional guaranties.

In order to clearly recognize all of the legal problems raised by plaintiffs’ petitions we feel that it will be helpful if we recognize Mr. Plunkett as a citizen and qualified elector in Wagoner county, and Mr. Payne as a qualified elector and candidate for nomination as State Senator by the Democrat party in the senatorial district.

Assuming, as argued by Mr. Plunkett, that he has a right to have his vote count for all it is worth and not in competition with illegal votes, we are confronted with the question of whether he has a right to bring an action in his own name for the relief demanded. It is recognized that his right is no greater than all those others who voted for Mr. Payne. He has no personal interest in the result of the election, and in our view no greater interest in free and equal elections and the purity of the ballot than other qualified electors in the senatorial district. The result he hopes to achieve by his action is to discard the alleged illegal absentee ballots and ultimately have his candidate declared the nominee of the Democrat party.

This court has heretofore held in numerous decisions that if the injury is one that particularly affects a person, he has a right to the action, but if it affects the whole community alike their remedy is by proceedings by the state through its appointed agencies. That is, by the county attorney or attorney general. Cheek v. Eye, 96 Okl. 44, 219 P. 833. See also Robison v. Chapman, 158 Okl. 244, 13 P.2d 173; and Frittz v. Thorpe, 149 Okl. 219, 299 P. 884.

In Garrett v. London, 107 Okl. 72, 229 P. 1074, it was held under Sec. 460, C.O.S. 1921, 12 O.S.1951 § 1533, that it is necessary that a private individual bringing an action to declare an election void, show title to or interest in the office involved superior to that of other members of the general public; and unless such title or interest be shown, the action must be prosecuted by the state through its duly constituted authorities. In the body of the opinion, 107 Okl. at page 76, 229 P. at page 1078, it was said:

“* * * The statutes giving this right of action were intended to protect the interest of one claiming the office, but it nowhere appears that it was intended that an individual should be substituted the representative of the public at large to prosecute an action claiming the total invalidity of an election. The power and right to prosecute such action inheres in the sovereignty. * * *”

Our statute, 12 O.S. 1951 § 1533, supra, was adopted from Kansas and it will be observed that the Kansas court has held to the same effect. Miller v. Town of Palermo, 12 Kan. 14. See also O’Brien v. Gassoway, 125 Okl. 97, 256 P. 929.

In 74 C.J.S., Quo Warranto, § lb, pages 174-175, it is said:

“* * * The ancient writ [of quo warranto] was in the nature of a writ of right for the king, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim, in order to determine the right, * *

In 74 C.J.S. Quo Warranto, § 28, page 222, it is said:

“Unless the case is within a statute authorizing him to do so, * * * a private person cannot bring a quo war-ranto action or proceeding in his own name, or in the name of the state, attorney general, or prosecuting attorney, independently of the attorney general or prosecuting attorney; *

Since Mr. Plunkett has no personal interest in the ■ nomination, and no greater interest in “free and equal elections” and the “purity of the ballot” than other qualified electors in the district we must conclude that he could not, as an individual, bring an action to contest the.validity of the absentee ballots.

It may properly be argued that Mr. Payne has a pecuniary interest in the nomination and a greater interest in “free and equal elections” and the-“purity of the ballot” than other qualified electors in the senatorial district. However it must be recognized that this greater interest results from his candidacy and that his rights as a candidate are governed by other provisions of the statutes.

In 26 O.S.1951 § 391, it is provided that the right to a certificate of party nomination shall not be considered a property right to any extent whatsoever, unless and until such right to such certificate shall be determined and the certificate issued in the manner provided by law.

In 12 O.S.1951 § 1531, it is provided that civil actions may. not be maintained to contest a primary election. The-section provides:

“The writ of quo warranto and proceedings by information in the nature of quo warranto, are abolished and the remedies heretofore ■ obtainable in those forms may be had by civil action; provided, that such cause of action may be instituted a-nd maintained by the contestant for such office at any time after the issuance of the certificate of election by the state, county, township, or city election .boards, and before the. expiration of thirty days ■after such .official is inducted into office; ⅜ * * and provided further, that this Act shall not apply to primary election.” (Emphasis supplied.)

The quoted section of the statute was enacted in 1925 as Senate Bill No. 395, S.L. 1925, page 145. Recognizing this section of the statute in 1926 in Dabney v. Hooker, 121 Okl. 193, 249 P. 381, this court held in the first paragraph of the syllabus:

“At common law, there existed no right to contest in the courts the title to the nomination of a political party for public ‘office, and none now exists unless specifically provided for by statute.”

In the body of the opinion, 121 Okl. at page 194, 249 P. at page 382, it was said:

“Is there any authority, statutory or otherwise, which provides for a .contest of this nature? At.common law there existed no right to contest in the courts the title to the nomination of a political party for public office. Jarman v. Mason, 102 Okl. 278, 229 P. 459; Lansdon v. State Board, 18 Idaho 596, 111 P. 133; State ex rel. Hatfield v. Carrington, 194 Iowa 785, 190 N.W. 390; Bradley v. Board [of State Canvassers], 154 Mich. 274, 117 N.W. 649; State v. Woodruff, 68 N.J.L. 294, 52 A. 294.

“* * * and, as the law now stands, there is no provision of the statutes of this state authorizing a plenary action for the contest of a primary election ; such rights being purely political, it could not exist except by virtue of-some statute authorizing the same.”

This court has consistently adhered to the rule announced in the Dabney case, for more than thirty years. See Looney v. County Election Board of Seminole County, 145 Okl. 25, 291 P. 554, 71 A.L.R. 420; Brickell v. State Election Board, 203 Okl. 362, 221 P.2d 785, 788. In the body of the opinion in the Brickell case it is said:

“This court is committed to the rule that at common law there existed no right to contest the title to the nomination of a political party to public office in the courts and none now exists unless specifically provided' for by Statute.”

In 18 Am.Jur. Elections — § 272, at page 359, it is said:

“It is ■ a firmly established general rule that the jurisdiction of courts exercising general equity powers does not include election contests, unless it is so provided expressly or impliedly by organic or statute laws. The reason for this exclusion is that the questions involved are political and that the right to public office is not considered. as constituting property in such sense as will warrant the intervention of equity to protect it. * * * Accordingly, a court of equity will not restrain officers on whom devolves the duty of declaring the result of an election from performing their duty or enjoin the issuance of a -certificate of nomination to a successful contestee in a primary election contest.”

It is pointed out in argument that Art. 2, § 6, Okl.Const., requires a remedy for every wrong, and in this connection it is argued that the courts must take jurisdiction where the Legislature fails to provide a remedy. The ultimate conclusion from this argument is that the Legislature has not provided an adequate remedy and that the courts must take jurisdiction and create a remedy. In considering this proposition we cannot be unmindful, of the fact that the Legislature has provided that the right to a certificate of nomination is not a property right, 26 O.S.1951 § 391, supra. Nor can we ignore the fact that the Legislature has provided that civil actions may not be maintained in the courts to contest primary elections. 12 O.S.1951 § 1531, supra.

In Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 942, in the body of the opinion this court said:

“ * * * The mandate of section 6, art. 2, of the Constitution is:

“ ‘The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.’

“That this was a mandate to the judiciary and was not intended as a limitation upon the legislative branch of the government seems clear. Neither do we think it was intended to preserve a particular remedy for given causes of action in any certain court of the state, nor was it intended to deprive the Legislature of the power to abolish remedies for future accruing causes of action (where not otherwise specifically prohibited), or to create new remedies for other wrongs as in its wisdom it might determine. Section 36, art. 5, declares that:

“ ‘The authority of the Legislature shall extend to all rightful subjects of legislation.’ ”

In State ex rel. Decker v. Stanfield, 34 Okl. 524, 126 P. 239, 241, this court held:

“We think this-section of the Constitution [Art. 2, Sec. 6] must be enforced, but that it must be enforced, in accordance with the law. We do not think it means that, regardless of the statute, * * * courts shall proceed in violation of the law.”

We have considered the problem under comparable equitable principles. In 30 C.J.S., Equity, § 105, page 506, it is said: “Equity Will Not Suffer a Wrong to Be without a Remedy.” However, the courts have recognized that this right to a remedy is not an absolute right. There are numerous classes of cases where equity will not afford relief. Thompson v. Allen County, 115 U.S. 550, 6 S.Ct. 140, 29 L.Ed. 474; 30 C.J.S.,. Equity, § 105, page 507.

We have also considered the question of whether it is the duty of a court of equity to take jurisdiction where, as here, there was not sufficient time for the parties to present their case- to the. trial court, nor sufficient time for an appeal. The record discloses that on the fourth day of the trial the court in effect directed the plaintiff, Payne, to close his case on the following day. The plaintiff objected and was. overruled. On the following day plaintiff again objected to his evidence being curtailed and made an offer of additional proof. Defendants joined in requesting that plaintiff be given time to try’ to make the proof he offered, but the objection was overruled and the offer of further proof by plaintiff was denied. The court, in effect, required defendants to close their case on September 28th, after consuming three and one-half days in presenting their evidence, and denied their offer of further proof. Plaintiff was denied time to present rebuttal testimony. It is quite evident the trial court felt compelled to ipake these rulings in.order to leave some time for an appeal to this court.

If it may be assumed that the trial court was under duty to assume jurisdiction then it must necessarily follow, in the absence of statute, that the unsuccessful litigant would have the right to take an appeal. Is it the duty of the trial court to assume jurisdiction when it is apparent that there will be insufficient .time to complete an appeal before the date for the next election and where the questions may be rendered moot for lack of time to present the appeal? Is this court authorized to postpone the next election day in order to provide time for an adequate remedy? In 30 C.J.S., Equity, § 16, page 336, it is said:

“A court of equity will not do a useless or vain thing, and will not require the doing of a vain or useless thing or the performance of an impossible act. - So, even though the court has jurisdiction, it will not lend its powers to accomplish a useless purpose, nor will it grant a decree which does not confer any real benefit or effect any real relief, which is impracticable to carry out, which is not enforceable, or which is nugatory or ineffectual because compliance therewith is impossible. Courts also refuse to grant equitable relief where, if granted, one of the parties may nullify the action so taken by the exercise of a discretionary right which * * * the law * * * has conferred on him.”

We hold that Art. 2, § 6, Okl. Const., supra, is not intended as a limitation upon the legislative branch of the government where the legislation involved deals with rightful subjects of legislation. Adams v. Iten Biscuit Co., 63 Okl. 52, 162 , supra. We further hold that 26 O.S.19S1 § 391, and 12 O.S.1951 § 1531, as herein construed, are rightful subjects of legislation.

It would be incorrect to assume that a candidate is wholly without any remedy in contesting primary and run-off elections. In 26 O.S.1951 § 391, the Legislature has provided a comprehensive plan for a recount hearing before the County Election Board. Mr. Payne availed himself of this remedy. It may be said with some justification that the extent and scope of the contest therein, provided is not entirely clear, and that our decision in Brickell v. State Election Board, 203 Okl. 362, 221 P.2d 785, does not clarify it. While the issues in the cases before us do not require a construction of Section 391, or suggest that we reconsider our opinion in the Brickell case, we are firmly convinced that the Legislature intended that the recount hearing would be exclusive of all other remedies in primary elections. The correctness of this conclusion is emphasized by the provisions of 12 O.S. 1951 § 1531, supra, which forbids civil actions in contesting primary elections.

Although the time for holding the general election has passed, we are of the opinion and hold that the district court had no jurisdiction to try and determine the issues raised by ■ plaintiffs in their separate petitions. It follows that it was the statutory duty of the County Election Board to certify to the State Election Board the returns of the Wagoner county election as reflected by its recount, and to include therein the results of their recount of the absentee ballots.

The orders and judgments of the district court are reversed and vacated as being void for lack of jurisdiction of the district court to make them.

JOPINSON, C. J., WILLIAMS, V. C. J. and WELCH, DAVISON, JACKSON and CARLILE, JJ., concur. CORN, 'HALLEY and BLACKBIRD, JJ., dissent. ■

The court acknowledges the aid of the amicus curiae brief of Hardin Ballard, attorney, Purcell, Oklahoma, former Senator and author of Senate Bill No. 139, S.L. 1931, pp. 97, 101, 26 O.S.1951 §§ 391 & 392.