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actual fraud of that character sufficient to throw a doubt on the result of the election, is ground for rejecting the entire vote of a precinct, where there is no means of purging the poll."

*

to show that the Legislature here did not intend to defeat the vote of an honest voter honestly voted, even if his ticket was of different paper from that prescribed, but did intend the provision in this regard for his protection in the premises; that is to say, the legislative intention to be gathered from the language used seems to be that no ballot except the kind prescribed should be printed or furnished to the voter, to the end that his ballot might be secret, and that he might be clear of restraint or imposition of any kind in the exercise of his right of suffrage. Upon a fair consideration of the statute it is not apparent that the legislative intent was to nullify such votes."

In the case of Kellogg v. Hickman, 12 Colo. 256, 21 Pac. 325, which was an election contest case, it appeared that at a certain precinct, the ballots provided therefor failing to reach the same in time, the electors thereof provided ballots printed on yellow paper, and which in no wise conformed to the requirements of the law. As in the case at bar there was no claim that there was any fraud intended or perpetrated thereby. On objec. tions being made to the counting of these ballots, the court, speaking through Stallcup, This court in the case of State ex rel. EdCommissioner, said: "I see no warrant in wards v. Millar, 21 Okl. 448, 96 Pac. 747, the statute for deducting these votes from considering a question similar to the one the count. The courts are without authority now before us, held in the syllabus: "The to declare such penalty against the voter purpose of that part of section 2963, Wilson's until the Legislature shall have declared Rev. & Ann. St. 1903, which provides that that the act of voting such ballot shall be un- the election officers, whenever a question lawful, and that such ballot, if voted by the is to be voted on by the electors of a city elector, and received by the judges, shall or town, shall cause a brief statement of the not be counted, and, in the absence of legis- same to be printed on the ballot, and the lation to this effect, the courts may not words 'Yes' and 'No' under the same, is to declare as much. The right to vote under prevent the use of any other than official balour Constitution is a vested constitutional lots, and not to condemn as invalid official right, with no condition imposed as to the ballots which have been furnished to the manner of exercising the right, except that electors by election officers charged with the vote be by ballot. * * It will be that duty, for some oversight or error on seen that the enactment under considera- their part." The statute under which the tion does not in terms prohibit the elector election in question in that case was held from voting a ticket printed on paper differ- (section 2963, Wilson's Rev. & Ann. St. 1903) ent from that prescribed; nor does it declare provided that in elections of that character against the counting or receiving of any the words "Yes" and "No" should appear such ticket. The parties voting at an elec- under the question submitted, and that the tion are considered by some courts as par- elector might indicate his preference by ties to a contest of this kind. State ex rel. stamping at the place designated in the front Hopkins v. Olin, 23 Wis. 319; People v. of each word. On the ballots prepared for Pease, 27 N. Y. 45, 84 Am. Dec. 242. How-this election the officials placed the squares ever this may be, it will be conceded that to the left of the question to be voted on, the rights of the electors voting are neces- and under the squares placed the words "Yes" sarily involved in contests of this kind; that and "No," instead of placing the squares their rights in the premises may not be ig- under the proposition to be voted on and nored; that, to warrant the courts in de- placing the words "Yes" and "No" at the priving them of their votes as a result or right of the squares as provided in the statpenalty for having voted ballots printed upon ute just noted. Exception was taken to the paper different from that prescribed, there result of the election held on such ballots, must be legislative expression to that ef- and Justice Kane, who prepared the opinfect. It is contended that it was the in- ion for the court on this proposition, said: tention of the Legislature, by the enactment "The defendants contend that the election under consideration, to deprive them of is invalidated by this variation in the form their votes when so cast, and that such in- of the ballot made by the election officers. tention is apparent from the act, notwith- The authorities do not seem to support this standing the want of expression in this re- contention. In the case of People v. Board gard, and that such intention should govern, of Canvassers, 105 App. Div. 197, 94 N. Y. in order to give effect to this provision of Supp. 996, it was contended that all the the act. It was stated in the oral argument ballots cast at an election to remove a courtthat this section 1281 (Gen. St. Colo. 1883) house site were void because not in the form was taken from the Ohio act upon the same required by law. The objection was that subject. Upon examination of that act I certain directions with regard to voting were find that it declares that it shall be unlaw-printed on the ballots in addition to those ful to publish, distribute, or vote a ticket required by statute. The statute provided different from the ticket prescribed. The that none but ballots provided in accordprohibition against the voter, being omitted ance with the provisions of the election law

out the county-no advantage to either side appears to have followed their use and, in the absence of the elements above noted, they will be held valid.

purpose of that provision is to prevent the cases supporting this doctrine are Lindstrom use of any other than official ballots, and v. Board of Canvassers of Manistee County, not to condemn as invalid official ballots 94 Mich. 467, 54 N. W. 280, 19 L. R. A. 171; which have been furnished to the electors by Miller v. Pennoyer et al., 23 Or. 364, 31 election officers charged with that duty for Pac. 830; Kirk v. Rhoads, 46 Cal. 398, 399. some oversight or error on their part. The So we see that, in the absence of a mandacourt further held that, even though they tory provision of the statute visiting upon were inadvertently or wrongly used, the bal- the elector the penalty of having his vote lots would not for these reasons be void, disregarded for casting a ballot so preparand quotes the following from the opinion of ed, or a clear allegation that fraud suffiMr. Judge Andrews in Hirsh v. Wood, 148 cient to change (or at least sufficient to N. Y. 143, 42 N. E. 537: 'We can conceive show a strong probability thereof) the reof no principle which permits the disfran-sult of the election, such ballots cast ought chisement of innocent voters for the mistake to be counted. They were uniform throughor even the willful misconduct of election officers in performing the duty cast upon them. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult.' In State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 Pac. 1, it is held that, where electors vote the official ballots supplied to them by the judges of election, their legally expressed will cannot be overthrown where they are not at fault by the fact that the public officers who prepared the ballots in some way neglected his or their duty. The case of Thomas v. Kent, Circuit Judge, 116 Mich. 106, 74 N. W. 381, was one of mandamus to compel the circuit judge to dissolve an injunction restraining the submission to electors of the question of borrowing money to erect a pauper insane asylum. It was admitted that the ballots prepared were not literally in accord with the form prescribed by statute, but the court says that they gave the voter information as to the nature of the propositions, which the prescribed form would not do, and held the statute directory only. Merrill v. Reed, 75 Conn. 12, 52 Atl. 409, was a petition for a recount of ballots cast at an election. The statute provided that the Secretary of State should designate the size and style of type to be used. The designation was made and the ballots printed, in compliance with such instructions, except that the type was slightly different. It was held that such ballots should be counted. In Kulp v. Railey, 99 Tex. 310, 89 S. W. 957, a name was improperly placed upon the official ballot, and it was held that, inasmuch as the election had been conducted in good faith, the ballots should be counted.

* * In the case at bar there is no allegation in the petition, nor is it contended by counsel in their brief, that there was the least semblance of fraud in the election, or that the exact will of the people of the city of Norman was not honestly and fairly expressed by the vote cast. This being true, we believe it to be contrary to reason, as well as to the great weight of authority, to invalidate the election on the ground urged by the defendants' first contention." Other

Plaintiff for its third cause of action alleges that the place called Jay was not such a place as should have been recognized by the Governor with any standing in the lists as its competitor; the averments of the petition being as follows: "That on or about October 1, 1908, a pretended plat was filed in the office of the register of deeds of Delaware county, at Grove, a certified copy of which is hereto attached marked 'Exhibit D,' and made a part hereof. That the purpose of said pretended plat, or the filing thereof, does not appear. That neither at the time of the filing of said pretended plat, nor on December 8, 1908, nor at any time prior to December 8, 1908, was there any house, building, spring, mark, name, or any sign of any kind or character by which the lands therein described might be distinguished from any other lands anywhere in the county of Delaware, except as one might carefully locate same by survey from the government description and marks. That at the time of filing said pretended plat the name 'Jay' meant nothing to the voters of Delaware county, and did not signify any city, town, or place. That there is not now, nor ever has been, any city, town, or place definitely known and commonly understood as 'Jay,' and that there was not on December 8, 1908, nor prior thereto, any place whatever generally known as 'Jay,' and that at the present time any place at or near the center of the county of Delaware is as commonly known as 'Jay' as the lands described in said pretended plat, and that very few persons have ever been in the locality of said described lands and have a common understanding as to the point intended. That the voters of the election of December 8, 1908, were compelled to rely on hearsay as to the location of the place alleged to be so named. That on account of the short time after the filing of the said pretended plat until December 8, 1908, the voters of said county were misled in large numbers as to what place was intended by 'Jay,' and that, the county being populated by fullblood Indians in a large measure, they were easily deceived, and that it was impossible

for the great portion of the voters of said county to ascertain for themselves the location of the lands described in said pretended plat, and that, there being a popular spring some two miles north of the lands described in said plat, known as 'Muskrat Springs,' many voters were misled and induced to vote for 'Jay' in the belief that 'Jay' was at Muskrat Springs, where was good camping ground. That it is not now known, nor can it be determined, that the lands described in said pretended plat marked the 'Jay' for which the votes were cast at the said pretended election, and that, so far as may be ascertained, Muskrat Springs, was most generally known on December 8, 1908, as 'Jay,' and plaintiff alleges the fact to be that more than 100 voters in said county did on December 8, 1908, vote for some place other than the lands described in said plat as 'Jay.'"

The Constitution provides (paragraph a, § 6, art. 17) that the Governor shall cause to be placed upon, and cause to be voted at, the election the names of such towns as may, more than 20 days prior thereto, file with him verified petitions therefor, and that the word "town" shall be construed to mean "town," "city," or "place." Referring now to the answer, it seems to us that if the fortunate competitor in this controversy bearing the cognomen of "Jay" cannot rise or aspire to the dignity of a "city" or "town," then under the allegations of the answer it would properly be embraced within the term "place." Of it the answer to which this demurrer is filed says: "That prior to the date of the proclamation for the election of a permanent county seat of said county the owners of the land at Jay caused the same to be platted and surveyed, and caused the same to be filed with the recorder of deeds for Delaware county, at Grove, designating the place as 'Jay,' and that on October 2d, after the proclamation had been issued, a public picnic was held on the ground, which had been previously extensively advertised throughout the county, and that a large number of the voters of the county were present, and that on said occasion the persons owning the land had a public auction of the town lots on the premises, and public notice was given of the metes and bounds of the town, and that lots, blocks, alleys, and streets were at said time surveyed and laid out. Defendants, therefore, state that at the time of said election the location of the town of Jay was well known to the voters of the county." Of the word "place" the Supreme Court of Montana, in the case of State v. Thomas, Clerk, 25 Mont. 226, 64 Pac. 503, says: "The word 'place,' in popular usage, is a very indefinite term. It is used of an area or portion of land marked off by boundaries, real or imaginary, as a region, locality, site, spot." And of it the

of Fall River County v. Powell et al., 5 S. D. 49, 58 N. W. 7, says: "It is not indispensable that a settlement or locality to be selected as 'the place of the county seat' shall have definite and exact topographical boundaries. A particular settlement known as 'Hot Springs' may be selected as 'the place of the county seat,' although it may be at the time unplatted, and have no fixed and definite exterior boundaries." Considering, then, the way the word is used and its context in connection with its meaning as given in the foregoing authorities, we believe we are justified in responding to the insistence of counsel for defendants in holding that the answer states a defense to the averments of the petition. The organization interested in having a "place" voted for as a county seat should be held, however, to the duty of giving correct and accurate information to the voters of its location. It should not, by any dereliction or failure in this regard, be permitted to enjoy the benefit of votes which the voter intended to cast for some other point, or which he might have cast for its competitor, or not cast at all, had he been correctly advised.

We now come to the fourth and last cause of action stated in plaintiff's petition. This is as follows: "For its fourth cause of action * plaintiff says that on and before the day set for holding said election, and for the express purpose of influencing the qualified electors of said county to vote for Jay, certain lots described in said pretended plat were sold, bargained, and given away, or agreed to be sold, bargained, or given away to Carlton Gray, T. E. Grider, and various and sundry other persons for the purpose and with the intent to induce said persons to use their influence to have the county seat of said county voted to that point. That on the day of said election, and prior thereto, it was represented and promised by said Claud L. Washbourne, Jr., Si Hardy, and others that if Jay became the county seat, a certain tract representing the square would be given to the county for a county courthouse and jail, and that they would build, or cause to be built, a courthouse and jail without expense to the county, and would rent same to the county for much less than the cost of the rent of the present courthouse and jail, all of which representations and promises were made for the purposes of inducing voters to cast their ballots for 'Jay.' That by reason of said agreements, representations, and promises many persons, to wit, 100 or more, were induced to vote for Jay who would otherwise have voted for Grove or not at all, and that said agreements, representations, and promises were in violation of law, and that Jay did by reason of said bribery receive a majority of 98 of the votes cast, as shown by the returns of the precinct canvassing

illegal." To this the defendants have filed their answer, which is practically a general denial.

case of State ex rel. Hopkins v. Olin, supra, speaking to the same proposition, says: "In our form of government, where the administration of public affairs is regulated by the will of the people, or a majority of them, expressed through the ballot box, the free exercise of the elective franchise by the qualified voters is a matter of the highest importance. The safety and perpetuity of our institutions depends upon this. It is therefore particularly important that every voter should be free from any pecuniary influence. For this reason the attempt by bribery to influence an elector in giving his vote or ballot is made an indictable offense by statute. Rev. St. c. 169, § 37. The payment or promise of money or other valuable consideration for the giving of a vote, no doubt constitutes the offense of bribery, or attempt to bribe, within the meaning of the statute. Can a vote thus obtained, in direct violation of the statute, be considered a val

In many of the states the question raised by this pleading has been before the courts, and passed upon, and, so far as our investigation has gone, in each instance the courts have held that offering to give, courthouse sites, buildings, and other property to the county in consideration of the citizens there of voting to locate the county seat at the town or place making the offer did not violate the bribery statutes of these states, nor contravene their public policy. A few of such cases may be noted as follows: Wells et al. v. Taylor et al., 5 Mont. 202, 3 Pac. 255; Hall, etc., v. Marshall, etc., 80 Ky. 552; Dishon v. Smith, 10 Iowa, 212; State ex rel. Bill v. Elting et al., 29 Kan. 397. The doctrine in the foregoing cases is well stated in the syllabus of the case of Wells et al. V. Taylor et al., supra, by the Supreme Court of Montana, as follows: "The offer of aid or legal vote? If it can, then the very public building if a county seat is changed is in no sense bribery; the building is a benefit to the public, and not to individuals, and the party to be influenced is a whole county." The same condition, however, does not exist in Oklahoma as exists in the states to which reference is made above, for in sec

tion 7, art. 17, of the Constitution, which contains the provisions relating to elections for changing, removing, or relocating of county seats, it is specifically provided that: "Any person or corporation offering money or other thing of value, either directly or indirectly, for the purpose of influencing any voter for or against any competing town in such election, shall be deemed guilty of bribery." By this provision it will be noted that Oklahoma has specifically declared to

be bribery the doing of the things which, in the absence of such statute or constitutional provision, the other states referred to have held did not under their laws constitute bribery.

The question now arises whether or not such a course of conduct will avoid the election, or merely the votes influenced by the offers made. To our minds the latter result, and not the former, would follow. McCrary on Elections (4th Ed.) § 216; State ex rel. Hopkins v. Olin, 23 Wis. 309, 327; Cowan v. Prowse, 93 Ky. 156, 19 S. W. 407, 14 Ky. Law Rep. 273; Carrothers v. Russell, 53 Iowa, 346, 5 N. W. 499, 36 Am. St. Rep. 222;

object of the statute, which is that it shall not be so obtained, is defeated."

From the foregoing it will be noted that the issues are narrowed down to two propositions: First, were the electors without their fault innocently misled or mistake of its committee, and voted for it under the as to the location of Jay, through the fault mistaken belief that it was in fact located fers pleaded made by Jay or its authorized at another place; and, second, were the of committee or agents, and if so, were they made with the intent and for the purpose of influencing the voters to vote for Jay, and in both instances did these matters charged have the effect of changing the result of the election? Thus causes 1 and 2 are eliminat

ed.

Plaintiff may, however, if it desires, amend as to them, and have the usual time to reply to causes 3 and 4, and after the issues are made, the parties may agree upon a referee and suggest his name to the court. If agreement thereon cannot be reached, then the court will appoint, and the evidence may be taken by him. The referee so selected will be required to make his report include both findings of fact and conclusions of law. All concur.

(24 Okl. 704)

CONNER v. TAILOR & LEAVERETT.

(Supreme Court of Oklahoma. July 13, 1909.

On Petition for Rehearing, Sept. 14, 1909.) 1. APPEAL And Error (§ 3*)—JUDGMENT-REVIEW BY WRIT OF ERROR.

State ex rel. Attorney General v. Collier, 72 Mo. 13, 19, 37 Am. Rep. 417. In the case of Cowan v. Prowse, supra, the Supreme Court of Kentucky in the syllabus says: "A vote A judgment rendered in a United States obtained by a bribe is a bad vote, and Court for the Indian Territory prior to the admission of the state into the Union cannot be should, upon proper proof, be rejected by a brought to this court for review by a proceedtribunal trying a case of contest; a judging in error with a petition in error and tranment of conviction for the offense not being necessary in order to exclude the vote." The Supreme Court of Wisconsin, in the

script.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 3.*]

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 101 P.--5

2. APPEAL AND ERROR (§§ 4, 5*)—JudgmenT-| pellate procedure in force in said terriMETHOD OF REVIEW. tory by Act Cong. March 3, 1905, governed such appeal. See, also, Parks v. City of Ada (Okl.) 103 Pac. 607.

A judgment rendered in a United States Court for the Indian Territory prior to the admission of the state into the Union can be reviewed by this court only on appeal or writ of error sued out and taken and prosecuted pursuant to Act Cong. March 3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208).

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. §§ 4, 5.*]

(Syllabus by the Court.)

Error from the United States Court for the Southern District of the Indian Territory, at Ada; J. D. Dickerson, Judge.

Action by Tailor & Leaverett against F. L. Conner. Judgment for plaintiffs, and defendant brings error. Petition in error dis

missed.

J. W. Hocker, for plaintiff in error. B. Thompson, for defendants in error.

It follows that as a citation and writ of er

or duly returned to this court is indispensable to vest this court with jurisdiction in this cause, and as said petition in error with transcript attached and summons in error brought nothing to this court which we can review, this appeal must be dismissed, and it is so ordered. All the Justices concur.

On Petition for Rehearing.

After the foregoing opinion was handed down, to wit, on August 26, 1909, there was filed in this court in this cause the writ of error sued out and filed in the trial court October 8, 1907, and a petition for rehearing, J. attached to which is a waiver of issuance of summons in error dated December 5, 1907, alleged to have been filed in this court, with TURNER, J. This is a suit on a contract averment, in effect, that plaintiff in error, for boring a well brought originally in the being in doubt which way to proceed, had commissioners' court by defendants in er- sought to bring this case here both by proror, plaintiffs below, against plaintiff in er- ceeding in error with petition in error and ror, defendant below, which on appeal and transcript and by writ of error pursuant to trial anew in the United States Court for the federal appellate procedure in force in the Indian Territory, Southern District, at the Indian Territory by Act Cong. March Ada, resulted in a verdict in favor of plain-3, 1905, c. 1479, § 12, 33 Stat. 1081 (U. S. tiffs and against defendant, upon which final judgment was rendered and entered on October 2, 1907. On the same day motions for a new trial and in arrest of judgment were filed and overruled, an appeal prayed and granted, and later supersedeas bond was filed by defendant and approved by the court. Thereafter, at the same term, defendant as plaintiff in error filed his petition for a writ of error, which said writ was on October 22, 1907, allowed by the Honorable J. D. Dickerson, trial judge, and the same was issued and filed in the office of the clerk of said court. No citation issued and no return was made to said writ. On February 24, 1908, plaintiff in error filed in this court his petition in error with a transcript of the record of the trial court, which was duly served on defendants in error. Although the cause has been submitted by both sides on briefs, we cannot entertain jurisdiction of the appeal for the reason that the judgment of the lower court cannot be reviewed by this court under said procedure by peti- | tion in error. In Kelley et al. v. McCombs et al. (recently decided by this court, but not yet officially reported) 102 Pac. 186, it was in effect held that a judgment rendered in a suit in equity in one of the United States Courts in the Indian Territory prior to the admission of the state into the Union could be brought to this court after that time only by appeal, and that the federal apFor other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Comp. St. Supp. 1907, p. 208), and that this
case is properly here under said act. We
do not think so for the reason that, as noth-
ing was done during the life of said writ
and pursuant thereto to lodge the transcript
in this court, it became functus officio after
the time for making return thereunder had
passed, and its subsequent filing in this
court amounted to nothing. This was, in
effect, the ground upon which the court dis-
missed the appeal in Castro v. U. S., 3 Wall
46, 18 L. Ed. 163, and Villabolos v. U. S.,
6 How. 81, 12 L. Ed. 352, speaking of which
the court in Mussina v. Cavazos et al., 6
Wall. 355, 18 L. Ed. 810, said: "The ground
of that decision, and also of the case of
Villabolos v. U. S., 6 How. 81, 12 L. Ed. 352,
which preceded it, is the general principle
that all writs which have not been served,
and under which nothing has been done ex-
pire on the day to which they were made
returnable. They no longer confer any au-
thority. An attempt to act under them is a
nullity, and new writs are necessary, if the
party wishes to proceed.
In these
cases the appeals were dismissed because
no returns of the transcripts to this court
were made until by analogy to the writ of
error the time for making such returns had
passed; and the writs, if writs had been
issued, would have become functus officio."
The petition for rehearing is denied. All
the Justices concur.

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