134 P. 868 | Okla. | 1913
Defendant in error, hereinafter referred to as relator, commenced an action in quo warranto against the plaintiff in error, hereinafter referred as respondent, to try the title to the office of marshal of the city of Muskogee. The relator alleged that a certain municipal election held in said city on April 27, 1909, was void, and by virtue of being the incumbent at the time of said election, as well as a candidate to succeed himself at said election, he was entitled to continue to hold said office until a successor was elected. Judgment of ouster against respondent was rendered in favor of the relator. At said election the relator received 1,368 votes as against the respondent's 1,682.
In Martin v. McGarr,
"(a) An action, brought for the purpose of having an election declared void, will not be sustained by showing merely the reception of illegal ballots. An election is held void in those cases only where it is impossible to separate the valid from the invalid ballots and the correct result is impossible of determination.
"(b) An election is void where qualified electors are corruptly and fraudulently deprived of an opportunity to register and vote sufficient in number, had all been counted for the next highest candidate, to have changed the result of the election."
It is alleged by counsel for respondent that the evidence, as disclosed by the record, does not show that the persons who were refused the right to register were in fact legal voters, and the burden was upon the relator to show such fact. It matters not how many irregularities may be charged, unless legal voters are prevented from registering and participating *673 in the election to the extent of changing the result of the election, especially in view of the fact, when it is not controverted, that the votes actually cast and counted were legal, a court is not justified in holding the election invalid and setting aside the result of the declared choice of the people and defeating the result of their selection.
In Snyder v. Blake,
"It is a rule of law adopted by almost all of the courts that the entire vote of an election or of a precinct will not be rejected, where it is possible to ascertain and eliminate the fraudulent vote. 15 Cyc. 372. Irregularities and misconduct in conducting an election do not vitiate the election unless the irregularities or misconduct are in violation of mandatory provisions of the statute, or such in themselves as to change the result or render it impossible to ascertain the result of the election. Williamson v. Musick,
In this case the allegation is that sufficient number of legal voters were fraudulently prevented from registering that, had they been registered and permitted to vote, it would have changed the result of the election.
It follows that under the authority of Snyder v. Blake,supra, this cause must be reversed and remanded, with instructions to grant a new trial and proceed in accordance with the law as announced in the opinion.
HAYES, C. J., and KANE and TURNER, JJ., concur; DUNN, J., absent and not participating.