6 Wyo. 91 | Wyo. | 1895
This is an election contest, and involves the election of county superintendent of schools of the county of Albany at the general election held in 1894. Lizzie F. Sawin was the republican nominee and Sarah W. Pease was the nominee of the Democratic and People’s parties. The latter was declared elected, and within thirty days thereafter the plaintiff filed her petition in writing with the clerk of the district court of Albany County for the purpose of contesting the election. To this petition a motion was interposed asking that it be made more definite and certain, which was sustained in part only, and plaintiff was granted time and leave to file an amended petition. The amended petition was filed, and a motion to strike therefrom certain portions as redundant and irrelevant was sustained in part, and upon a demurrer to this petition being sustained, leave was again granted for the filing of an amended petition; thereupon a second amended petition was filed, and to this a motion was filed to strike out parts thereof for the reason that the same stated a new point of contest for the first time set, up in the second amended petition, and more than thirty days had elapsed since the defendant was declared elected, and that the paragraphs thus complained of were inconsistent with and repugnant to certain allegations of .the original and first, amended petitions. This motion was sustained. A demurrer to the second amended petition was then filed, and this was sustained, and the plaintiff not desiring to plead further, judgment was rendered in favor of defendant, and plaintiff prosecutes error.
The only matters at all before us for consideration is-the action of the court in sustaining the motions to strike'
The original petition, after alleging certain jurisdictional facts, and that the board of canvassers, composed of the county clerk and two justices of the peace of the county, in making up the abstract of votes from the various returns, found and declared that defendant was elected by a majority of five votes over the plaintiff, proceeds to state that plaintiff desires to contest the •election, and then follows a statement of the points of contest. The petition was divided into numbered para.graphs, the points of contest commencing with paragraph number 7, which is again subdivided into paragraphs numbered consecutively A to F, inclusive. These points in substance were that the official ballot had printed upon .it the candidates for the office in question as follows:
‘£ For County Superintendent of Schools.
“(Yote for one)
“Sarah W. Pease.Democrat.
* ‘Sarah W. Pease.People’s Party.
“Lizzie F. Sawin.'.Republican,”
thereby misleading and deceiving the voters of Albany county, and thereby depriving plaintiff of her right to have the ballot of an elector counted but once. These allegations appeared in subdivision “A” of paragraph number 7. Then in subdivision “B” it is alleged that as a result of the printing of the ballot in such manner four hundred and twenty-six electors voted twice for the defendant, and that the judges of election of the various voting precincts wrongfully and illegally counted .said four hundred and twenty-six votes as legal votes, and as having been cast for said defendant, and the county clerk in making up his abstract wrongfully and illegally counted ¡said votes as legal votes and as having been cast for the
Subdivision “D ” contains the following allegations: That no returns have been made of the poll books, ballots cast, and affidavits of electors concerning the qualifications of electors voting, to the county clerk as provided by law from Mountain Home, Lodge Pole, and Mandel precincts, and that the canvassers in making up their abstract did wrongfully and illegally credit said defendant with forty-nine votes alleged to have heen cast for her in said precincts as represented by pretended returns of said precincts.
In subdivision “ E ” it is alleged that in making up the said abstract and in declaring that defendant had received 1132 as against 1127 received by the plaintiff, the county clerk did count and give credit to defendant with over one hundred illegal votes.
In subdivision “P” that upon a recount of all the legal votes having been cast for superintendent of schools the result will show that the plaintiff has been duly and legally elected to said office and is entitled to the election certificate.
The petition then in paragraph number 8 proceeds to aver that the county clerk, together with the different judges of election, in making up the returns and abstract, as provided by law, did wrongfully and illegally credit the defendant with over one hundred illegal votes, and thereby deprived plaintiff of her right to said office, and
Defendant interposed a motion to make subdivisions A to F, of paragraph 7, respectively, and paragraph 8 of the petition more definite and certain. This motion as to subdivisions A and B of paragraph 7 was sustained and overruled as to the others, and plaintiff was granted leave and time to amend the petition.
The amended petition down to paragraph 7 closely follows the original, and, in subdivision A of that paragraph, in addition to a statement of the manner of printing the candidates for said office upon the official ballot and the other allegations found in the corresponding paragraph of the original petition, avers that the ballot was so prepared by the county clerk, who was a democrat, upon the representations of the county attorney, who was a
In subdivision B>of this amended petition it is averred that as a result of the printing of the official ballot as stated, and the misrepresentation and frauds practiced, as thereinbefore mentioned, evidently referring to the representations of the county attorney and defendant which had been referred to, four hundred and twenty-six unlawful votes were counted at said election in the precincts of said county for the defendant, and the judges in making up their returns wrongfully and illegally counted said votes as legal votes and as cast for defendant, and the county clerk included them in his abstract. Then follows similar allegations to the others which appeared in the original petition.
It is apparent that the elaboration of subdivisions A and
A demurrer was then interposed to each point of contest specifically and to the amended petition as a whole on the ground that neither point of contest, and that the petition did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff granted leave to file another amended petition. This was filed. Its allegations were quite similar to the first amended petition, except that in subdivision B the averments were so changed as to charge that as a result of the printing of the official ballot in manner suggested “four hundred and “twenty-six electors voted twice consecutively at the election aforesaid for said defendant for the office of county “superintendent of schools, and that the judges of election ‘ ‘of the different voting precincts of said county in making “up their returns to the county clerk, as hereinbefore “mentioned, wrongfully, illegally, and fraudulently “counted said four hundred and twenty-six votes as legal “votes and as having been cast twice consecutively for “said defendant, and the county clerk in making up his “abstract of the votes cast for candidates for the office of “county superintendent of schools wrongfully, illegally,
Section 154 of the act governing elections provides that the person desiring to contest an election to an office, other than member of the senate or house of representatives, shall within thirty days after the person whose election is contested is declared elected, file with the clerk of the district court a petition in writing setting forth the points on which he will contest the election, which statement shall be verified by affidavit of the party bringing such contest, as in pleadings in the district court. Sections 155 and 156 provide for the issuance of summons in the same manner as in civil actions in the district court, and that said contest cases shall be tried in like manner as civil actions.
Plaintiff in error challenges the correctness of the rulings of the court upon the respective motions to strike, and the respective demurrers to the' first and second amended petitions. Upon a careful examination and consideration of the pleadings we have reached the following conclusions:
This averment in our judgment did not amount to new matter, or a new point of contest. The original petition plainly stated that four hundred and twenty-six electors voted twice for said defendant, and the allegation now inserted, complained of by the motion to strike, and stricken out by order of the court, merely stated a conclusion of law to be deduced from such voting. Whether or not such marks or crosses would amount to distinguishing marks such as to invalidate the ballots arose as a matter of law from the original averment, and that question was sufficiently raised by the original petition and by other corresponding statements in the petition as amended. It may have been entirely proper, however, to strike it from the petition as redundant in that it goes no further than to announce a legal conclusion or result to be drawn from the other and preceding averments; it is unnecessary to dertermine that matter; no error can be predicated upon the ruling in that regard for the obvious reason that the question thus suggested naturally arose from the remaining statements, and plaintiff had all the advantages, if any, to be derived therefrom.
2. The ruling of the court upon the demurrer to the first amended petition was erroneous, for the reasons stated in our discussion of the last demurrer.
A case in which an election is contested is to be tried like other civil actions, and our statute of amendments applies to such an action the same as any other. It may be assumed, however, that a point of contest entirely foreign to the original charge, if the time has elapsed within which the contest may be inaugurated, should not be permitted to be set up for the first time by way of amendment, but that if a petition in such an action is defective it may be amended by making its allegations more particular, definite, or certain, we think there can be no doubt. When there is a charge of fraud, but no averment showing how the fraud would affect the result, the defect may be remedied by amendment. Paine on Elections, Sec. 840. That author says : “The inquiry involved in a contested “election case is one which deeply copcerns the public. ‘ ‘The question is broader than the mere claim of an individual to the office in controversy. It is, whether the “popular will has been, or is about to be, defeated, or “thwarted, by mistake or fraud. If, therefore, the state“ment of the grounds of contest lack the clearness and “distinctness of allegation always desirable in judicial “proceedings, it is not, on that account, to be peremptorily dismissed; an opportunity to amend should be af“forded, to the end that the points in controversy may be “developed, and the merits of the case determined.” Paine, Sec. 840. See also Dale v. Irwin, 78 Ill., 170; Election Cases, 65 Pa. St., 35; Rutledge v. Crawford, 91 Cal., 526.
The original petition alleged that the name of defendant was printed in two places Vpon the official ballot; that a large number of electors voted twice for defendant, and that said votes were counted, that they were counted wrongfully and illegally; that in certain precincts the votes
4. Had the points stricken out been retained in the last, petition, it would hardly have been contended that the demurrer ought to have been sustained. In our judgment, however, the demurrer to each of the amended petitions-should have been overruled, notwithstanding the elimination of portions thereof in response to the motions. I will endeavor to briefly develop our reasons for such conclusion.
The first amended petition states somewhat differently the charge or point concerned in the count of the ballots for defendant in the three election precincts in Laramie City and some others, in which the votes for defendant were counted separately. It was originally stated that the totals-were added together by the judges, and the total thus arrived at returned to the county clerk. (See subdivision C, original petition.) In the corresponding paragraph of each subsequent petition the averment is that the judges of election did not add the totals together, but that the county clerk did, when preparing his abstract, which it is charged was so done illegally and resulted in crediting defendant with one hundred and more of illegal votes. This averment, together with the statements respecting the printing of the-ballots, that many electors voted twice for the defendant, and that several so voted in these identical precincts, viz., twenty-eight in one precinct, thirty-six in another, and sixty-five in still another, no other reasonable construction can be given to the allegations in paragraph C in each petition than that these votes appearing upon each of
As this cause must be remanded for further proceeding, we deem it proper to express the views we entertain in relation to some of the questions necessarily arising upon the allegations of the petition, which we will do without greater elaboration than necessary.
Under our system the names of candidates for each office are required to be arranged under the designation of the office in alphabetical order according to surnames, except that the names of candidates for electors of president and vice-president of the United States presented in •one certificate of nomination are to be arranged in a sepa
See Ellis v. Glaser, 102 Mich., 396.
It is alleged that the voting in the manner complained of was the result of the way in which the ballot was prepared, and that the county attorney as well as the defendant represented to the several judges of election and the voters that if any ballot should be so marked it could be counted as one vote for the defendant. The manner in which the ballot should be printed when one person was the candidate of more than one party had not received the attention of this court or any of the district courts in the State so far as we are advised; and it is not alleged that any elector voting for the defendant in the respect complained of did so fraudulently or for the purpose of distinguishing their ballot. To now hold in this case under
The judgment of the district court of Albany County is reversed and vacated, and the said court directed to enter an order overruling the motion to strike out portions of the second amended petition and an order overruling the demurrer of defendant to said second amended petition granting leave and time to the defendant to further plead to said petition.
Reversed.