This cause is before the court on appeal from the district court of Creek county.
W.F. Pardoe was a Republican nominee, and C.O. Beaver was a Democratic nominee, for the office of judge of the superior court of Creek county, Okla., in the general election held November 4, 1930. After the election was held and vote canvassed, the Democratic nominee, Beaver, was declared elected by the county election board; thereafter W.F. Pardoe filed a pretended contest of said election with the county election board. The election board refused to hear said contest; action was brought in the district court to mandamus said election board to hear and determine said pretended election contest. The district court found for the defendants.
Plaintiff brought the cause here for review.
Defendants in error have filed a motion to dismiss on the ground that the office of superior judge is a state office and that under chapter 63, Session Laws 1927, the county election board is without jurisdiction to hear and determine said contest.
This court, in Chickasha Cotton Oil Co. v. Lamb and Tyner,28 Okla. 275, 114 P. 333, in the 3rd paragraph of the syllabus, said:
"The act of the Legislature approved March 12, 1910 (Laws 1910, c. 47), establishing a county superior court in the city of Clinton, Custer county, does not violate those provisions of section 46, art. 5, of the Constitution, prohibiting the enactment of local or special laws regulating the affairs of counties or cities, creating offices in counties, or regulating the jurisdiction of courts."
The case of State ex rel. West, Attorney General, v. Breckenridge, 34 Okla. 649, 126 P. 806, held the judge of superior court was a state office. Plaintiff in error admits that judge of superior court is a state office.
This being an election contest, the authority to contest this election must be found in the statute; the right to contest an election did not exist at common law.
This court, in Dabney v. Hooker, 121 Okla. 193, 249, P. 381, in the first paragraph of the syllabus, said:
"At common law, there existed no right to contest in the courts the title to the nomination of a political party for public office, and none now exists unless specially provided for by statute."
The Supreme Court of Arizona, in Sorenson v. Superior Court,254 P. 230, in the first paragraph of syllabus, said:
"Election contests can be instituted only where there is express authorization therefor; they being unknown to common law." *Page 83
In the case of Crownover v. Miller, 197 P. 817, the Supreme Court of Nevada, in the 2nd paragraph of syllabus, says:
"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."
The Oklahoma decisions and the decisions of other courts hold that the right to contest an election must be a statutory right and must be found in the statute.
The first paragraph of the syllabus of the majority opinion states in part as follows:
"By the enactment of section 6101, C. O. S. 1921, it was the intention of the Legislature to fix the jurisdiction of the county election board, for the purpose of administering the election laws. * * *"
This is a statement of the intention of the Legislature. There is nothing in section 6101 that authorizes an election contest. To say that it was the intention of the Legislature to authorize an election contest is to ignore the plain provisions of the statutes of Oklahoma, which provide for election contests. The court overlooks the fact that prior to the enactment of chapter 63, Session Laws 1927, jurisdiction to hear and determine contests in general elections was not vested in the county or State Election Board. Prior to the enactment of chapter 63, Session Laws 1927, contests of general elections were had in the district courts. See Moran v. N. Nichols et al., 35 Okla. 283, 129 P. 741, wherein it was held the county election board was without authority to open the envelopes returned by the election officers of any precincts contained in the voted ballots and tally sheets; also see State ex rel. Montgomery v. State Election Board, 29 Okla. 31, 116 P. 168; the provisions for contest at the time section 6101 was enacted were followed in the above cited cases. Chapter 63, Session Laws 1927, provides in part as follows:
"* * * Such contests as to state or district officers shall be filed with the Secretary of the State Election Board. * * *"
This court having heretofore determined that the office of the superior judge is a state office, then, under the provisions of this statute, the contest should be filed with the State Election Board. These provisions are expressed in such plain English words that it would seem the ingenuity of man could not evade them.
This court, in passing on this question in Brown v. Branson,139 Okla. 271, 270 P. 63, in the 2nd and 3rd paragraphs of syllabus, said:
2. "Chapter 63, Session Laws 1927, is a revisory and substituted act covering the entire field of election contests for both primary and general elections and repeals all former statutes on the same subject, including section 6107, C. O. S. 1921."
3. "At common law a candidate for a nomination of a political party for public office has no right of contest. The method prescribed by statute is exclusive."
The majority opinion is directly and diametrically opposed to the case of Brown v. Branson, supra, and cannot be distinguished. The second paragraph of the syllabus of the majority opinion states:
"Under the provisions of chapter 63, Session Laws 1927, the county election board of Creek county has original jurisdiction to hear and determine an election contest involving the office of judge of the superior court of Creek county."
The applicable provisions referred to are not quoted in the majority opinion, and I have examined chapter 63 carefully and I find no such provision. The court should point out the provision of chapter 63, Session Laws 1927, which provides that the county election board of Creek county shall have jurisdiction of the contest of the office of judge of the superior court of Creek county, or of any state office.
The majority opinion cites McCain v. State Election Board,144 Okla. 85, 289 P. 759, as authority for the holding therein. The McCain Case, supra, is not applicable for two reasons: First, it did not involve a judge of the superior court; and, second, it did not in any way involve an election contest. It involved the judge of the court of common pleas, and the question presented was whether or not he should file with the county election board or with the State Election Board his nominating petition.
Contests in general elections, prior to the enactment of chapter 63, Session Laws 1927, were heard in the court and not before the election board. If the theory announced by the majority opinion is correct, that the board with whom a candidate files and that the mere filing with the board gives the board jurisdiction to determine the contest, regardless of where the Legislature may provide that such contest may be determined, then no court would have jurisdiction to interfere in any contest.
I am of the opinion that, under the plain provisions of the statute and the decisions *Page 84 of this court, construing both the question of whether or not a superior judge is a state officer, and the decision of this court holding that chapter 63, Session Laws 1927, is the only applicable statute providing for contest, and that all former statutes relating to contest were repealed, the holding in the majority opinion that section 6101, supra, was the applicable statute is erroneous, and that the county election board of Creek county, under the statutes and decisions of this court, is without jurisdiction to hear such contest of a general election, and that the county election board was without jurisdiction to hear and determine said contest, and that a mandamus would not lie to compel the county election board to hear that which it is without jurisdiction to determine.
For the reasons stated, plaintiff's appeal presents nothing to this court for review and should be dismissed.