59 P. 559 | Idaho | 1899
— At the general election held in Bannock county in November, 1898, the plaintiff and defendant were candidates for the office of clerk of the district court for said Bannock county. The defendant received the certificate of election, and duly entered upon the performance of the duties of said office. Plaintiff brings this action under the provisions of the act of February 25, 1891, concerning elections and electors, and the acts amendatory thereof, for the purpose of contesting the election of defendant. To the complaint of the plaintiff filed herein, the defendant interposed a general and special demurrer, the district court sustained said demurrer, and, plaintiff declining to further amend (the complaint had been once amended), the court rendered judgment dismissing the complaint, with costs. From such judgment this appeal is taken.
The only question submitted for our decision is, Was the •action of the district court in sustaining the demurrer of defendant to plaintiff’s complaint erroneous?
The complaint, after some preliminary allegations, proceeds as follows: “7. That by and through the malconduct of the judges of election in said Pocatello precinct No. 2 and each of them, the election in said Pocatello precinct No. 2 is and was fraudulent, corrupt, illegal, unlawful, and void, and the same should be set aside and annulled, for the following reasons, to wit: (a) That by and through the malconduct of the said judges of election in said Pocatello precinct No. 2, and their wrongful acts, the said judges of election allowed and permitted many persons other than the officers of election, whose names are to the plaintiff unknown, to enter the space inclosed by the guard rail, and reserved for voters, in excess of the number of shelves and compartments provided for voting, and
The primary object of our election law is to secure to the elector a free, untrammeled expression of his will concerning the matters submitted for decision, unawed by intimidating influences,-uncontrolled by corrupt or fraudulent practices; and, when the will of the elector has been expressed as required by law, such expression must not be set aside or negatived for light or trivial causes. Before the court will assume to set aside the expressed will of a majority of the electors of a county or precinct, it should be well satisfied that there has been such a disregard of the provisions of law enacted for the conduct of elections as taints the entire poll with fraud. It is not every irregularity that will justify the court in invalidating the poll of an entire precinct. Séction 132 of the act referred to pro