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

BILE. ahd thus bc able to have It appear
prlfna facie that the proposition Tor
iority. while the county cnnvassing board
mi sht hold this same ballot intoiilgible.
or against the proposition. thus deteat-
Ing II: while the trial court might re-
verse the conclusion Of the county biard,
either by tahisg a different view OF the
intention OF the voter who cast this ballot.
o. ~ concluding that his intention or
choice wa not acertainabe from the hol-
lot. Again. II this construction Is not
placed upon the act it might easily hap
pen that a mlnoi ity OF the legal voters Of
the county who attended the polls Tor
tie sole purpose OF expressing their Views
upon q very important mensura. who at
tempted SO to do by depisliing their ball
lots. whosc names appeared upon the poll
lists and In the returns as having voted.
and who nsp regarded Tor every other
pufpo-e as having voted al he election.
might cause the elnOval Of "a county seat.
and thus overcome the unmistakable de-
sign OF tn removal act. Such construc-
tiCa, so opposed TO the intent and spirit
OF the law, should not obtain II Il cas-
reasonably be avoided
Counsel for defendant take the position
that the force Of this case was virtually
broken by the Supreme court Of Mime
sofa in its decision OF the case OF Hop
kins VS. City Of Duluth. supra In out
Judgment the language and he REASON
ing Of the court in that case Is not sur.
ceptibl' TO the construction sought TO be
placed upon II. That case was an cleo
lion contest over the new city charte- Of
the city OF Duluth. At the election. four
sngle ballot To the voters OF that city.
Three candidates. for mayor. two for
alderman, and other propositions were
voted upon The law required four-sev-
enths OF the qualified voters voting at
such election to be cast I'm favor OF the
cha ter IN order that 1t receive the re-
Quisite number Of votes to secure its rat
lfcation. In considering the question as
TO what ballots should be counted In max
ing up the whole number upon which
the court held:
Fraudulent ballots. ballots with unin-
tclligihle marks, expressing no effective
, vote upon any subject Of choice as well
as ballots upon which no markings have
cluded from the aggregate number upon
which the requisite four -scNenchs re-
qui ed by the constitutional amendment
| Is TO be estimated In determining the
ratification OF the pro posed charter
There were 20 ballots which came with
| in the description of fraudulent ballots,
ballots which were unintelligible, and ball
lots with no markings Five of them had
the names or initials of he voters east
| ing them written thereon. which the court
1 held wa a PLAIN. and Dalpablc fraud upon
| tAe election law. Fifteen expressed no
choicc upon the atificatiun OF the char
ter, and six ballots were totally blank
| In other words there were twenty one
ballots excluded which were blank so faI
as the charter proposition was concerned.
ald five which were excluded FOR aud.
| In the face of this situation the con-
testce urged that these ballots should
have been counted by the court iu maklug
| up The total Number OF votes cast and
cited in support Of this contention the
case Of smith vs.. The Board Of County
Commissioners OF Rcnvillc county, supra
and the court in the consideration OF thai
case ditsilguisheu il from the one then
before u, in the following language:
'The contest IN that case was upon the
! change ~ "A county seat which must In
all cases be at a special election, and the
removal must be carried under the eN-
. ess terms Of the statute by 90 per cent
OF the votes cast. In that case it was
| held for reasons that were peculiar 10
necessary safeguards which the statute
relating thereto IN its various provisions.
| requires, TO prevent county seat fron
hecom ng a mere football to be frequent
Ily kicked ON one place to another by
caprice and to give to the eXiatiug
county seats some degree of permlnence.
demauded "A strict construction of the
| language of the statute designating the
majority BY which the removal should be
carried. The entire opinion Of the court
| is pcYmcated with this view aud eN-
ferent rule might obtain in such case
othe. than applied In Dayton w. city of
- PAU; p Mimi, 400, where IL was held
| mat ordinarily. Ia voting FOR candidate
| or Tor or against a proposition which D.
TO be adopted or rejected the votes TO
/ be counted ON either side should be those
II
l or against such proposition The whole
tenor Of tue conpt seat einnVa1 stptntc
was held to show clear design TO pre-
vent frequent changes or any change at
| the bchest of a mere majority and the
statutory requirements from the institu.
lion OF proceedings for the removal OF
| the county seat, 10 the final count of the
votes. are reviewed In the opinion OF tn
| court with great ca G to show that the
itnent Of the legislature, TO safeguard the
| rights OF existing county seats. and to
prevent danger from efforts to change
| them, required a strict construction OF
| the language providing that SO per cent
OF the votes cast is necessary to effect
such removal; and the practical result Is
| reached that II was within the legislative
| intent, Ia view Of all the provisions Of
| the removal law, and the words votes
| cast we're used as the equivalent of ball
/ lots cast and the reasoning Of the court
/ fully justified that conclusion. .
son for our view, by comparison OF the
language providing for the final count IN
county seat contests and upon the ratifi-
| cation OF municipal cha ters. IN a county
seat removal fiftyfive per cent of the
votes cast are needed TO secure the
change. but for the ratification OF char
ter 'four-sevenths OF the qualified voters
voting at such election shall be suffi-
cient. The word votes, IN the Renvlle
county seat case WAS treated euuiva-
lent to ballots. IL does not seem rea-
sondhle 10 apply a similar test TO the
words OF the amendment. QUALIFIED voters
voting al the election. TO DO so would
he 10 hold thut any person who had
| passed into the voting booth and whose
name had been checked upon the poll list
had voted though he had expressed iii.
choice 70 anF one, or upon any ques
| tion or proposition. and would give to a
bare attempt on his part TO vote. OF 60
a fraudulent vote. a suhstani ial effect
rs much az If the yoter had voted when
he had not voted at alt We cannot g
to this extent"
Another case IN which similar. al
though not the exact view Is taken Oh
/ his proposition, Is the case Of state eN
rel Phelan rs, Walsh, from the supreme
court Of Connecticut IL l.. r. A.. 1854.
THIS case presented a contest hetweer
several state office Tho question pre-
scnted to the court beiag which Of thes,
Iotfccrs had received a majority OF tho
votes cast on this 9roposi ion the court
held
In determining whether amy candidate
for a certain state office received "a ma %
lorits OF the votes cast. where this T. nee.
essary TO AN election ballots for the gen
cial state officers elected without stat
ing specifically iu "a certificate the rca
son therefor as required bv statute wa
ne counted I'm making up the whole NUN
her OF votes cast. although ID does no,
lappear whether they contained the name
flee in question
in tho discussion Of The same the court
said.
1T appears from the statutory eturns
tlal there were eleven ballots IN the towll