The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1908-11-16

Charles Gibson. c. :. Crane X. o Bur
ton. constituting the Board Of Cemmis-
Oklahoma. w l.. Odom as Sheriff OF
Mcintosh County, state OF Oklahoma
VI Rushing. rs Judge Of the County
Court. L. r. Jordan as Clerk Of the
Dist let Court. and J. y. Morrow. as
Recorder Of Mclntosh County, state Of
OKiahoma. aud the Town ot Checotah
a Municipal Corpomtion. DEFENDANT
syllabus.
1. For the purpose OF determining the
majority Of the VOTES cast az special
election called to vote upon the location
or relocation Of county seat In ac-
cordance with the provisions ot section
six Of article seventeen of the ronstltu-
tion lsections 22S TO 33i inclusive, Bu1n's
constitution an OF tie valid legal ball
lots cast ~. question ineligible as
well as unin,ellkible should be consid-
cred arr % effect a removal Il must be
made - afiirmatlvely appear that ma
jority OF this number were cast Ia favor
2 where IN such case there Is an
allegation showing that the cits town.
or place mentioned in the certificates as
having received q majority OF the votes
cast did not In fact receive such major
ity but that therc were other ballots not
counted la said certificates proper TO be
considered In estimating the number on
which such majority should be computed.
then the ballots become the best evil
dence Of the facts and should be counted.
3. Distinguished ballots, Illegal bll-
lots sucn as those cast by persons other
than qualified electors and blank ballots
should be excluded from estimation Ia
making up the aggregate number on
which such majority IS to BE computed
a. A distinguished ballot which cam
not be counted is one which bears au
Identification mark made by the voter
made with his cpunivance, consent
or knowledge and made for the purpose
OF distinguishing that ballot from the
Others cast
s. Ballots on which the election oGl-
ciais have placed numbers. IL otherwise
al Ia. ftn 81 a. "a has
Is shown that such numbering was done
prior TO the time Of HE canvass and with
OF the electors for the purpose OF fraud
ulently DISTINGUISHING them.
Original Proceedings IN County seat Con
troversY. Petition Sustained.
Tully 4 Collier. Attorneys for plaintiff
Dale, Bierer q fiegle-. Horace B. Reu-
belt, Charles r. Freeman, aud Cheesie
McIn osh attorneys for defendants
Opinion OF the Court by Dunn. J.
This controversy grows out OF a spc-
cial election called by the Governor Of
the State Of Oklahoam. pursuant to a
OF Mcintosh county. The returns OF the
same were In accordance with law fos-
warded To his office and he canVasscd
he same and on the 9th udy OF June,
1908. issued his proclamation In which
he declared that the total vote cast
at said election for county seat Of Me-
Intosh county, Oklahoma WIS 3231; and
that OF said votes the city, town or place
of Checotah. which was duly and legally
said election received l647 votes. which
Is maiO itN fall the votes cast at
said election. and IN accordance there
with, proclaimed Checotah as the legally
elected county seat of Mcintosh county.
Eufaula and Stidam were each competi-
tors IN the contest, the former being the
town nonlinatcd A. The county seat by
the constitutional convention received
1900 votes, the httef 3St This action
Is brought IN this court by hufWu for
the purpose Of restraining the carrying
into effect OF the said procla nation under
the authority OF sections iG aud ~ Of
article 4. Of chapter 81. .. 3lS ~ The
Session Laws Of Oklahoma, aqS. being
one " the enactments ~ the first state
on the making 10 OF nc issaeJ. y
cause was refer cl to jaHl \. Icny.
ESQ. as special referee TO take the
evidence and report the same with his
findings Of fact and conclusions OF
law
II win be observed that the governor
based his findings and proclamation upon
the number OF votes cast which We're
actually counted for the different can
didates. Counsel for plaintiff in the pc
tltion filed takes exception TO this man
ner OF a riving at the actual ngtuber OF
votes cast, and In paragraph three there
or averred that tho proper rule 10 be
observed In the ascertninment OF the
actual number OF votes east should be
b.. taking Into consideration not only tae
votes which We're actually east and
counted for the different candidates hut
an the ballots which wee cast, nclud-
counted, as well as those which were
intehiglble and counted This paragraph
Is as follows.
"rhat al the said eiec io. .ot'
said card day OF Ma, 1908, there were In
fact cast thirty-three hundred and hftY-
tive ,Ss52l votes. and that Of said vote
50 cast, the town OF Checotah received
sixteen hundred and torty-seVcn uGtD
NoicS, the town OF Eufaula received
twelve hundred l2eol votes the town
of Sudham received three hund ed and
elghty-four ,3ND votes, three votes were
marked on the poll book Chahenged ,
fntI- three ,b2) ballots returned marked
'Mutllated TWO 90 votes marked on the
poll list Exposed and siNty-nvc 1867
votes not accounted for AZ ALL and That
2 majority OF said votes east IS sixteen
hundred aud seventies l6lz). and
that. Notwithstanding the said town OF
Checotah received thirty t30l votes less
than a majority OF all tho votes actually
cast at said election. his ENccllency
cha les n Haskell. Governor OF Okla
honn. acting as "a Board of Ctnvassers,
wrongtuliy rejected AN OF the votes shown
by said poll hooks as cast, eNce1t the
votes that we're cast for the respective
towns that were candidates at said cloc-
ton and the votes returned as mutiihtcd
and as shown hy a roav OF his Procla-
lnation which q hereto attached marked
Exhibit a.. and made a part hereof un-
lawfully declared hat Chccotah had e.
ceived majority Of AN the Notes cast at
SAID election, and was named ar the
location Of the permanent couutF seat
oklahoma
The referee after qualifying under hls
appointment. with be parties before him
opened the ballot boxes cnutaiuiaG tho
ballots noiled 90 the election and re-
ccivcd all Of the evidence offered r.
may well ie stated here that there Is
no allegation Of friud Of any kind and
4 Ia agreed hat thc ballots before the
cpu arc tae same ones Casi BY tho
electors ~ ihe cpf.st The referee
found and c9ueiUdcg aH q gesult OF his
investigation. as follows
= Therefore and from t,sc evidence