21 Wash. 243 | Wash. | 1899
The opinion of the court was delivered by
The respondent and appellant were rival candidates for the office of city attorney of the city of Ballard at the municipal election held on the 6th day of December, 1898. The election board, upon the count of the ballots, found that the respondent had received a majority of all of the legal votes cast and made their returns accordingly, whereupon a certificate of election was issued to him. The appellant instituted a contest before the city council of the city of Ballard, in the trial of which both parties participated, which resulted in the cancella
Two questions are presented by the record: (1) Were the contest proceedings had before the city council a bar to any subsequent proceedings in the court? And (2) which candidate received the greatest number of legal votes ?
1. The city of Ballard is a city of the third class. The statute applicable to cities of that class (Bal. Code, § 937), provides that, “The city council shall judge of the qualifications of its members, and of all election returns, and determine contested elections of all the city officers.” No method is provided by the statute for carrying on a contest under this provision, and it was found by the lower court, and conceded here, that the city council has not, by ordinance or otherwise, provided such a procedure. State ex rel. Blake v. Morris, 14 Wash. 262 (44 Pac. 266), was a proceeding in quo warranto to determine whether the relator, Blake, or the defendant, Morris, was entitled to the office of councilman of the city of Ballard. The conditions existing were exactly similar to these in the present case, and it was contended there, as here, that the findings of the city council were conclusive of the rights of the parties and a bar to the subsequent proceedings in the courts. In that case we held that the statute quoted, in that it did not vest in the city council exclusive jurisdiction of contest proceedings, did not oust this court of its jurisdiction to try the question by a proceeding in the nature of quo warranto; and inasmuch as the city council had not passed any ordinance, or made any provision for
2. Of the ballots east, the court counted, with the consent of the parties, two hundred and fifty-four for appellant, and two hundred and sixty-one for the respondent, leaving fifteen in dispute, which are brought here in the record, and numbered from one to fifteen inclusive. Ballots Uos. 1, 2, 3, 11 and 12 were not counted by the court for either party; ballots Eos. 4 and 1 were counted for respondent; ballots Eos. 5, 6, 8, 9, 10, 13, 14 and 15 were counted for the appellant. The final totals being, as found by the court, two hundred and sixty-three for the respondent, and two hundred and sixty-two for the appellant.
The ballots used were in the form prescribed by the code (§ 1364, Bal. Code), a copy being reproduced below (the marginal printed instructions omitted) :
The appellant insists that of the rejected ballots 1, 2, 11 and 12 should be counted for the appellant. ISTo. 1 was marked by a cross placed at the right of, and in the space containing, the words “Vote for One,” printed at the top of the left-hand column; the stroke of the cross from left to right extending across the space immediately below, in which was printed the words “Citizens’ Ticket.” ISTo. 2 was marked by a cross placed to the right of, and in the
“ E. E. Libby
Hot being able to register on account of his dutys as belonging to the Fire Department in Seattle was unable to register at any time, he duly swears that he lives in the third ward and is entitled to his franchise hear
E. E. Libby
Protested
H. Lewis.”
It is clear to our minds that ballot Ho. 1 was properly rejected. Conceding, as the appellant contends, that the statute is complied with by marking the ballot opposite the political designation of the party for whom the elector intends to vote at any place where such party designation appears upon the ticket, it cannot be conceded that this ballot is so marked. The cross is clearly opposite the words “Vote for One,” and simply because one stroke of the cross extends below that space and into the space marked “Citizens’ Ticket” is not sufficient evidence to warrant the court in saying that the voter intended to vote for the candidates of that party. Ho. 2 presents more difficulty, and, had it been counted, we would not have felt inclined to say that the counting was error. However, it can make no difference in this instance, because ballot Ho. 3 was marked exactly similar, and opposite the
Ballot Ho. 4, instead of being marked in the spaces provided, was marked immediately to the right of the names of the candidates for whom the elector voted; otherwise, the ballot was regular. This ballot was properly counted, under the authority of State ex rel. Orr v. Fawcett, 17 Wash. 188 (49 Pac. 346). Ballot Ho. 7 was marked at the proper place, opposite the words “Independent Citizens’ Ticket,” but by a very heavy cross. The appellant insists that this is a distinguishing mark, and that the ballot should have been rejected for that reason. In the case last cited we held, that it is not every mark by means
Binding no error in the record, the judgment of the lower court will be affirmed.
Gordon, O. J., and Dunbar, Reavis and Anders,, JJ., concur.