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


ficicnt number TO raise It's namber
owe the majority OF votes considered
. making up the total number OF votes
po..t whore those counted would con
itutc The number required.
We are fully impressed with the in-
iiurtanCc of this controversy, not only
iHe iitgantz immediately involved.
it to the ci izrns Of tie county OF Nc
tUsh ana the state generally. ana aur-
,ulariy ta those counties where con-
pNcraies % like charaCte- are pending
a We have given the question Involved
herein our most anxious and considefate
attention. The bao,s brought into
.uestion hy tue parties have All been
utlnzcd by the entire court. and on
hc facts found, there Is entire accord
inong It's members,
Counsel fur Checotah objected to the
ileninE OF the ballot boxes and recount
ig the ballots ~ the atseace OF charge
~ aud. basing this objection upon that
portion OF section seven, article L. chap
or H. session laws OF 1905. providing for
A certificate showing the number OF votes
received by each candidate. and which
provides that. "such certificates whefl
properly executed and returned shall be
pfima tacie evidence Of the number Of
utes received ly each candidate az
shown therein and in case Of va mnce
uctwcen the totals as shown by said cer-
| ihcates and the tally sheets. IN The alb
fcnce Of fraud, the certificates shall con-
The objection was oyerruled owing to
The language OF our constitution which
provides that IN county seat elections
| there is to be considered not only the
ote counted for the dffereni candidates,
/ bnt ibis vote TO be effective must be
! f1ajuritY OF the votes cast. and where
q Cre are allegations showing that the
/ ties received as shown by such ce IL
1 { cate do not constitute a majority Of the
| sptCs cast, then. under such constitutions
/ ul provision Ii becomes necessary to
en- the ballot boxes TO ascertain the ag-
/ sieRite number ON which TO estimate
/ nch majority. The law relating to can
/ didtlea for public Office requires the sue
ecssful party to receive but a plurality or
majority of the valid legal intelligihle
. 1alois but not "a majority of the vote
cast as IN county seat elections. hence
~ our Judgment, IL was proper and nee
/ ssary 10 open the ballot boxes as the
| iiliot boxes themselves are the best
/ idence OF the ultimate fact TO be
| established.
The report made BY the referee shows
| that the most careful attention was given
! @ the questions before him and eVinces
2 comprehensive grasp OF the propositions
> Involved our statute. section 2S2, "A ticlc
/ B chapter SO paragraph 1850. OF VIII
! s1n's Revised a Annotated Statutes OF
! Oslahom9 1908, provides that when the
| referee Is to reporl the facts, the re-
rt has the effect Of a special verdict "
nad the general rule under this statute,
| that whore cause Is refereed TO a
| referee. with the power to hear and de-
| .ngs of fact and conclusions of law
| hereon, the same VIII not be set aside
/ tt hthlnbt iit fNlutnft hltnougn the testl-
mony Is conflicting, II there Is legal evi-
| clce reasonably tending to sustain the
1 findings upon which his conclusions are
1ised. shannon V. petherbridge. II Okla.
oI isrisman v kerwin, S Okla. SO. /;
| iis, per Y. Hendricks. ~ Kansas. us
The foregoing statutes the rule gencr-
ally applicable where the evidence is
utal and not az 10 the case at bar made
| lp en- ircly of ballots which are construed
| ~ the court under the limitations made
| ~ the election law, as amy other written
| inatrumeut. state eN rel Blodgett. VS..
iugan, 1l5 Wis, IA; People v. SaXton,
~ n. ". 3u9, Ruticdge vs.. Crawford. 81
| IL. b2b, Parvin ~ Wilnhe et al. 1870
M" a6li VIM v. Blackman, 229 III,
But the rule has no ap9lica ion IN am
! Election contest where the ballots In
| controversy have been returned TO the
| ohft by the referee, and under which
| - agreement of counsel or BY his finding.
! heig Identity as being the ones cast, is
Established. rhei legal effect is a ques-
! tlun OF law which presents itself TO the
',o1rt clear and free from any presump-
| lion arising out OF the holding OF Il G
| cree. Moore on Facts. section i27S.
| Faulkner v. Sims US Neb.. 200
Entertaining this view Of the law, we
| have carefully gone over and examined
| iha challenged ballots and while we ind
Veral blank ballots and two, We held
! 10 be distinguished. there were noe a
| fuhicient number OF eithe to reduce tae
/ whole number Of votes counted as east
IN the aggregate 10 q point where the
i
| "a majority. nor uid the consideration OF
| the ballots counted for Checotah nor
| those not so counted and TO which counsel
| excepted make sufficient change In the
| e .ult TO cause reversal OF the con-
/ lusion reached by the referee.
| In addition TO tlse questions which
/ q ose IN considering the separate bal
tots cast. there Is presented another, In
/ folNing one hundred siNty-seven ballots
| on the back Of each OF which appeared
/ "a number These were cast la din rent
/ nFtflnglg tf fth lfFf.a a
| aa Eufaula " and Stidham IS. The
/ referee found that these numbe which
/ wore consecutive, We're male by the
! rlcction officials, and there Is no evidence
| before Us 60 show that any ~ the voter
! either conniNed at, consented 20, or had
any knowledge that this was being done
| neither Is there amy evidence 10 sustain
q finding that any voter intended or con-
| rentcd Go have his ballot so marked for
1 ihe purpose OF distinguishing Il. An n.
| spcction Of the allois convlnces us that
/ nude the numbers. The matc-iality OF
| thc Issue raised, Is apparent Wnen We
| consider that should these be held u be
| distinguished ballots that Is, ballots
/ i.auduicniiy marked for the purpose of
| distinguishing them, and should we FUR
ihef hold Eat they cannot be counted
| on considered for any purpose, either
| for the town for which east On Ia making
| pp the sum total 10 he considc ed, then
ihe vote received by checotah would be
/ a majority Of the votes cast but should
| they he allowed TO stand and counted as
| lawfully expressing the electors wish
/ the vote counted for Checotsh would be
less than the requisite number lot us
| See then. what is required TO constitute
/ distinguished ballot
The general rule seems 10 be as stated
| ~ Judge Irwin Ia the ease OF McClel-
land v. Erwin l6 Okla. 6i2 wherein he
| said
we think that 20 constitute dis.
] tinguishing mark whether made by tho
| we ~ a letter, figure o. character,
should be- such mark as shows an in
iention ou the part Of the Noter To-
| IDENTIFY or distinguish his particular hal-
| LOT from others of this class And any
marks Inadvertently made on "a ballot
or made through carclasncss or ignorancc.
which does not show upon the face Of
the ballot chat ruch "a mark was made
NTH Ne intention Of distinguishing that
ballot 4 om the others OF the same class
or that That result would be accomplished
hN TIE mark should not be- treated as "A
distinguishing mark, Human experience
igaches ~ that Ii Is often very difficult
io preserve absolute cleanliness and neat
ncss of tne ballot That in marking the
lrious names on the ballot with the de-
Vice provided hN the election Officers
man viii through inadvertence pr ilre
leasneee place a stamp where ID Is not
intended tu be-. and On dscoNe ing the
error viii Immediately 60 rect H. and AL
ihf same time this ulRdyeItent on rare-
lers mafking win not be done with the
lr cntiou or iueniiiAiug This particular
ballot nor viii such be- The result nor
Ha Na fnint NNlf fln law ~enUulI If Al