The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1908-11-16
DECISION ON
COUNTY SEAT
CONTINUED from page 2e)

without choice, assenting to what those
who do speak shall do. IKE those VINO
DO not at all approach tne, polls. even
more so. because present and silent. we
do not. because we need not. decide Whlch
OF these theories Is right. We decide ms
case on the particular language Of our
statute. which says that. II three-fifths
of all votes cast at said election upon the
question be I'm favor Of the relocation,
such relocation shall take place Now,
we are asked to strike out the words,
upon the question This would violate
the legislative design. II has Isolated
ana specialized this particular election
from the election for other purposes.
made IT, in effect, n special election for
that alo9e. II has made II Just the same
as one between two candidates Tor Office,
Beverly and Elkins we e simply two cam
didates for the choice of those who chose
to vote between them"
The court states In its opinion that the
pivot OF the case in q general election
where a special question is submitted,
where the law only requires a major
ity OF those votlns thereon or 'ou the
question, or the ike. votes as to the can
didates are utterly irrelevant" II VIII
thus be seen that "the pivot was not
In the determination of whether ballots
1 ON which IL was not possible to deter
mine how the voter voted upon the ques-
ion, was primarily before IT, but the
question as to whether votes cast for
candidates voted for at the same elec-
ton, should b.. considc' 80 "v 80
upon the question. This Is seen from
the first paragraph of the syllabus, ~4hvn
which reads as follows:
In a vote. al a geleraj election for
public Officers, upon the relocation OF
county seat, under chapter 81, Acts lsa5.
requiring for relocation three -ffths of
all the votes cast at said election upon
the question such relocation is carried II
il receive only three-iifths of all the votes
cast on that one question, though they
are less than IN ee-fifths Of the votes
cast on some other question, or for candi-
dates for office.
d q. ff..ss
which IL squarey presented by the facts
in the case at bar received but casual
consideration at the hands Of the West
Virginia court il the decision Of that
case, as IT was not Involved nor neces-
sary for decision.
The foregoing cover practically all OF
the leading cases elicd upon by counsel
for defendant 10 sustain their position
that the phrase "a majority OF all the
votes cast" means a majofits of the
votes coun ed. We have made an eN-
haustive aud tho ough Investigation to
ascertain II there were additional author
iy 10 sustain this position, and we con
fess that counsel IN their zeal and dill
gence have brought To the attention Of
The court practically all Of the decided
eases which by argument or construction
could be urged as sustaining thei- POSI-
lion. II is likewise true that there are
hut few cases TO be found wherein this
ques don has been passed upon and de-
rided by courts of last resort of the
country, but we believe that where this
court has been In consonance with the
conclusion we have reached. which is
that in a special election called for tho
purpose OF relocating county seat under
a constitution or statute which provides
that the successful contestant shall e
ceiye ~ majority OF the votes cast that
this should be SO construed as to require
a majority of all the valid legal ballots
cast on the question. ntelligible as well
as 1nlntehlgibie, anu 20 eiiect reileVal
that II must be made 10 atfirmatively APP
pear that a ma iOrity OF this number were
cast In favor thereof. Smith vs.. Board
OF Commissioners of RenVille county 90
OF Duluth. 81 MINI. lNg. S3 y. w. $50. .
state cN rel Phean vs.. Walsh II /. II. A..
(Conn.) 36i. State eN rel Hocknell vs.
topper 40 Neb. 72i 81 n w, 75S
The case OF Smith vs.. Boa of Com
missioners. supra the leading case on the
subjec, referred to aud cited BY many
and Olivia in the county Of Renvle
were contestants for county scat. The
statute OF that state reads: and II fifty-
five per cent of he votes cast at such
election shall be i'm favor Of changing the
county seat etc, Il is deemed changed
The facts on which the decision turned
we're stated by the court as follows:
according to the finding, 2,2lg votes
were east in favos of the removal, while
1.iS0 votes were cast In opposition. and
there were deposited In the ballot boxes,
presumably by legal voters, 6S ballots
from which II was impossible TO ascer-
tain whether the deposltors intended to
vote TOR or against rtmoNhlf Andi Is %
legal voters had endeavored o give exe
preston to their views at this special
election, but had failed TO do so in a
amnner intelllsible to the ial court. And,
In passing IL may be remarked that.
while the court below found but 6S Of
these untin eligible ballots. the town
boards and the board OF county commits
sioners, when canvassing the votes, had
much more difficulty. for not less than
20 ballots rejected by these boards as un-
intelligible and defective were held by the
-taI IN. utIff lE AZ q
s'ssSg'A choice. IL is urged In behalf Of
the contestant that, IN determlning
whether 55 pc cent ~ tne votes cast at
the election were Ia favor OF change oi
county seat. ghese 6S ballots, elected BY
the court aR uninteigiblc, must be taxi
en- into consideration as part o4 the
stands admitted that the requisite per-
centage OF yptes was not oh aimed, aud
the removal proposition did not carry
By tho foregoing II Is seen that the
Identical question . cscnipd Go this cOur,
was likewise presented To the supreme
cou OF the state Of Minnesota, In that
ease. and on thig the court held IN the
syllabus AS follcNs:
i'For the purpose Of determining the
number Of votes cast at an election held
under the County seat removal act oi
1889 (Gcn. st. 1884, see, 6ti et seq.), all
~ the ballots cast, uninielllgible as vel
ns intellgible, must be considered; and
30 effect a removal, IL must afframtivcly
appear that a. least 80 per cent Of AL
voles OF ballots cast We're In favor there
of Al the elec ion in question, s,2la
votes were east In favor OF cmoval ltSl
votes against removal and 5S votes ol
ballots were deposited In the ballot boxes
presumably by legal voters, from which II
was impossible to ascertain whether the
voters Intended TO vote for or agdins
removal Held, that the requisite 80 1ei
cent OF the votes cast WAS not obtained
The statute of Minnesota providing 70
the elminary petition on which Nigh
ile called an election for voting upon The
location OF a county seat, required sixty
per cent Of the whole number Of voters
who cast their ballots AZ the preceding
election while The section OF The consti
futon under witch we are operating re-
quires a petition I'm writing signed b,
fWenty-fve per cent q the qualfiee
electors OF the county. 10 be determined
by the total vote acst In such county fol
the head of the state ticket In the nFN
D. ecediEg election Aside from this ans
ihe method provided for the canvass o.
the votes. there IS but litile actual sub
stantial difference IN the two ws. th'
one construed In that case, and the on
for our construction In this one Th'
court in its consideration OF the case IL
supper. OF the first para agraph of the syi
labIs presented the following reason
which we regard as equally applicable q
She conditions existing In this cage.
~ om the whole tenor of the aci. !
seems apparent that no distraction VA
attempSed 10 be made between ballots
and 'v0teS and that the technical dif