I do not agree that the petition filed before the county election board of Pawnee county by intervener was sufficient to invoke the jurisdiction of that board. The majority opinion in an attempt to distinguish this case from the case of Looney v. County Election Board of Hughes County et al., 145 Okla. 23,291 P. 565.
"The Hughes County Case dealt with the contest in the general primary election. We are here considering a run-off primary election. The statute here under consideration is somewhat different. It provides. * * *" *Page 152
In the Hughes County Case, supra, there were two candidates for district judge. The one receiving the highest number of votes would be nominated. That election was held on July 29, 1930. In the case at bar there were two candidates for Justice of the Supreme Court in the run-off primary held August 12th. The law as applied in the Hughes County Case should be applied in this case, and in my opinion the two cases cannot be distinguished.
Statutory proceedings authorizing the contest of elections are summary in their nature, and he who contests the right of another for the nomination should be able with certainty to plead a state of facts which, if true, would entitle him to the nomination.
The petition filed before the Pawnee county election board by intervener failed to state facts sufficient to invoke the jurisdiction of that board and give it authority to enter upon a hearing, which hearing has for its purpose the impeachment of the returns made by each and all of the precinct election officials in Pawnee county, Okla.
The statute in question reads as follows:
"Any candidate in a run-off primary election may challenge the correctness of the announced and posted results thereof by filing with the county election board, whose duty it is to canvass the election returns of said county, a verified petition setting forth a detailed statement, in separately numbered paragraphs, of each error or alteration complained of, which allegations as to a county office or as to an office for which not more than the electors of one county are entitled to vote, if true, would change the result in his favor, and which allegations as to a state office or as to an office for which the electors of more than one county are entitled to vote, will, when taken in conjunction with the vote cast in the other counties, change the result in his favor."
According to the holding of this court and other courts, before intervener is entitled to a hearing he must comply with the statute, and jurisdictional facts must appear upon the face of his petition for a recount. Could it be seriously contended that intervener would be entitled to a recount if the returns from the district involved had shown that he received a majority of all the votes cast in the district? Or that if all errors complained of in the petition filed had been given him, he still would not have sufficient votes to entitle him to the nomination? The Statute says, "that, if true, * * * will, when taken in conjunction with the vote cast in the other counties, change the result in his favor."
The word "conjunction" Webst. Dict. defines: A state of being conjoined, united or associated. If the word "conjunction" means joined or united, taken in its ordinary meaning as used, then the words "taken in conjunction with the vote cast in the other counties" mean, added to or joined with the vote cast in the other counties, will change the result in favor of intervener.
The United States Circuit Court of Appeals of the Fifth Circuit in Hume v. United States, 118 Fed. 689, in construing the word "conjunction," said:
"And the indictment goes further than to say that Guynes was acting for himself. It adds, 'and in conjunction with A. Effron and * * * W.J. Hume.' It is urged by counsel that it is 'difficult to determine' just what is meant. But we must take it that the word 'conjunction' was used with its ordinary meaning, — the state of being conjoined, united, or associated'; 'union, association, league.' Webst. Dict. Placing that meaning on the word, it seems clear that the grand jury charged that Guynes, in posting the letters, was acting for himsef in union with the other defendants who concocted the scheme to defraud."
How could the election board of Pawnee county determine the alleged errors in the petition when joined with the vote cast in the other counties when the petition did not state the vote cast in Pawnee county or the vote cast in any other county for intervener or his opponent? The petition is defective in that it does not plead a detailed statement of the errors or alterations complained of. It does not plead the vote cast either for intervener or his opponent in Pawnee county or in the district. It names but one county and that is Pawnee county. The election board could not take the vote cast and the errors complained of in the petition and consider them in conjunction with the vote cast in the other counties when the vote cast in the other counties was not stated in the petition.
There is nothing contained in said petition which will give the county election board jurisdiction to hear and determine the same. Mere conclusions of fact, that if certain corrections were made in the announced and posted result, intervener would then receive a majority of the votes cast, does not plead facts, is not a detailed statement as required by the statute in the instant case, and is insufficient on its face. At page 150, infra, the majority opinion says: *Page 153
"If the Legislature had intended that the petition should contain an allegation as to the vote in the other counties, it would probably have provided that the allegations of the petition must be such that, if true, they would change the result of the election. The act does not so provide. The act provides that the allegations of the petition, when taken in conjunction with the vote cast in the other counties, will change the result."
I think the act of the Legislature is comprehensive, and while it does not contain a copy of the petition to be filed, it does make distinct requirements and necessary allegations that should be made before the board has jurisdiction to order a recount.
The statute in question, section 6, supra, reads in part as follows:
"Any candidate in a run-off primary election may challenge the correctness of the announced and posted result thereof by filing with the county election board, whose duty it is to canvass the election returns of said county, a verified petition setting forth a detailed statement, in separately numbered paragraphs, of each error or alteration complained of. * * *"
I am at a loss to understand how a candidate in a run-off primary election may challenge the correctness of the announced and posted results thereof in a petition filed by intervener which does not state the announced and posted result of the election in a single county in the district. Can it be said that the petition filed by intervener, which did not contain therein the announced and posted results of a single precinct or a single county in the district, was sufficient to challenge the announced and posted result? What announced and posted result is challenged by the petition which fails to plead a single announced and posted result? The mere belief of the intervener that if the votes were recounted the result would show a majority for him does not supply the radical omissions in the petition for a recount, and when the statute is so invoked the party seeking its benefits must bring himself within its spirit and its letter.
The rule that should be applied in this case is stated in the following cases:
In the case of Looney v. County Election Board of Hughes County et al., 145 Okla. 25, 201 P. 565, the Supreme Court of Oklahoma in the first and second paragraphs of the syllabus says:
"1. The verified petition provided by section 6, ch. 241, Session Laws of 1929, must set forth a detailed statement in separately numbered paragraphs of each error or alteration complained of, and the allegations thereof must show that, if true, the petitioner received the majority of all votes cast for said nomination, or show that no candidate received such a majority, and that the petitioner received either the highest or the next highest vote cast for said nomination.
"2. Section 6, ch. 241, Session Laws of 1920, provides for a verified petition and what the 'allegations thereof' shall show. The 'allegations thereof,' as used in that section, refer to allegations of fact and not conclusions of law or fact. The showing required by that section must be by a statement of facts, from which, if true, will appear that the petitioner received the majority of all votes cast for said nomination, or show that no candidate received such a majority, and that the petitioner received either the highest or the next highest vote cast for said nomination."
The Supreme Court of Oklahoma Territory in the case of Roberson v. Hubler, 11 Okla. 297, 67 P. 477, in the third paragraph of the syllabus said:
"A petition which shows that the number of ballots cast for plaintiff, which were wrongfully rejected as mutilated ballots, when added to the number of ballots counted for the plaintiff, only make a tie between the plaintiff and the defendant, in the absence of an allegation that the commissioners did not determine by lot which should be elected, as provided in section 63 of the election law of 1899, fails to state a cause of action, and a demurrer directed thereto on that ground should be sustained."
In the case of Robertson et al. v. Board of County Com'rs of Grant County, 14 Okla. 407, 79 P. 97, the Supreme Court of Oklahoma in the second paragraph of the syllabus said:
"A petition in an action to contest an election which alleges generally that the judges and clerks of election permitted a certain number of illegal votes to be cast in favor of a certain town for county seat, and that without such illegal votes the plaintiffs' candidate would have been elected and setting out the number of votes which the petitioner claims each candidate legally received, and which, if correct would give to the petitioners' candidate a majority of all of the legal votes cast, is not sufficient to state a cause of action. The pleader must set out the facts from which the court can say, as a matter of law, that the votes were illegal, and that without such illegal votes the result of the election would have been in favor of plaintiffs' candidate."
In the case of Crownover v. Miller, 197 P. 817, the Supreme Court of Nevada said: *Page 154
"Statutory proceedings regarding election contests * * * are special and summary in their nature, and generally a strict observance of the statute, so far as regards the steps necessary to give jurisdiction, is required, and the jurisdictional facts must appear on the face of the proceedings."
In the case of Borders v. Williams, 57 N.E. 527, the Supreme Court of Indiana in the first paragraph of the syllabus said:
"Under Burns' Rev. St. 1894, paragraphs 6312, 6314, providing for the contest of elections on certain grounds, and requiring the contester to present a written statement specifying the grounds of contest, an averment as a ground of contest that contestor received more votes than the contestee is insufficient, as tantamount to a general averment that the judgment of the county board of canvassers was erroneous."
In the case of Batterton v. Fuller, 60 N.W. 1071, the Supreme Court of South Dakota in the first paragraph of the syllabus said:
"To authorize a candidate or person to institute an election contest in his own name under the provisions of section 1489, Comp. Laws, such candidate or person must state such facts in his notice of contest as would prima facie entitle him to the office, and he must also therein claim a right to the office himself."
In the case of Whitney v. Blackburn, 21 P. 874, the Supreme Court of Oregon in the sixth paragraph of the syllabus said:
"While it is the duty of courts to disregard mere technical rules or defects, and to liberally construe the statute of contested elections, that the rights of the people may be preserved, and that no protection may be afforded to fraud, yet he who undertakes to contest the right of another to an office to which such other has been declared elected, by a tribunal authorized by the people, ought to have some well-defined 'cause,' and to be able to state it with sufficient certainty as to notify and inform the other party of the substance of the facts upon which he relies to defeat his title and to authorize the court to make the inquiry."
The authorities cited herein state the rule that I believe should be followed.