(specially concurring).
In concurring the. fact should be emphasized that in the case there tyas.no issue of fraud; the only issues, as, pointed out in the majority opinion, dealt with the. legality of absentee ballots; that is, as to legal voters of Wagoner County, fully entitled to vote in this election, making good faith effort to vote by absentee ballot, the question was whether they made sufficient compliance with the technical statutory requirements to have their absentee ballots counted. Those issues could’have been considered and determined in -the. recount hearing conducted by the District- Judge in conjunction with the Election Board pursuant to 26 O.S.1951 §■ 391. That section, after reciting requirements as to service of notice, provides that the rehearing contest shall -be set down
“for'a.’ day certain for hearing, same not to be more than twenty-four hours from the time’of the completion of such service,”
and
“the said hearing shall be held in the court room of the District Court and it shall be the duty of a judge of said court * * * that he attend, and in conjunction with said County Election Board, to conduct such recount.”
And in that section it is further provided:
“At said hearing, the parties in interest may, without further pleading, offer such legal evidence in support of and in opposition to such contest as they may have to offer, and upon the completion of such hearing, the election board shall render its decision, *536and such decision shall he final and conclusive of all rights involved. No continuance shall ever be granted for- such hearing for any purpose, and no appeal to or review by the court shall ever be taken or had from any final decision of the proper board so had governing any primary election. * * *
“It is the intention and purpose of this Act to prevent appeals or reviews of any kind or character and no court shall have jurisdiction of or authority to issue any enjoinder, proceeding mandamus or process to inquire into review or control the action of any election board pertaining to primary elections.”
Thus, in addition to 12 O.S.1951 § 1531 quoted in the majority opinion, we have the above quoted statutory provisions against judicial review of recount hearings or judicial interference therewith.
These absentee ballots in Wagoner County were not originally counted by the election board on election day as provided by the statute, but it was specifically ordered and directed, in advance, by the district court of Wagoner county that the election board hold these ballots over and delay such original counting until the following day and then to count the absentee ballots in the presence and under the supervision of the district judge. These absentee ballots were counted on the day after the election, and with the presence of watchers or challengers by both of the parties to this controversy. Thereafter there was a recount in conjunction with the district judge, requested and granted under the statute. This might well indicate that in the counting and recounting of these absentee ballots, with the presence of watchers and challengers by both parties, each “Absentee Ballot” and “Affidavit of Absent Elector” was separately scrutinized and checked for decision as to the legality or illegality of the individual ballot, thus determining with mathematical certainty the number of legal bállots and the number of illegal ballots, a determination which the trial court found it impossible to make in the trial of this civil action which began more than a month and a half later.
If it be conceded that in the trial of this case the trial court found some illegal absentee ballots, then it must also be conceded that the court, in casting out all of the 711 absentee ballots which were counted, discarded some wholly legal absentee ballots, since it was never contended by any one that all the absentee ballots were illegal ballots; but the trouble there is that the findings and judgment do not disclose how many illegal ballots the court found. It is-true that the trial court announced the general conclusion that there were enough illegal ballots to change the result of the election, but that conclusion cannot be checked with the findings of fact because-the trial court did not find or ascertain the-exact number of illegal ballots discovered,, stating that it was not possible to do so>. though stating no reason why such impossibility existed.
There is a primary presumption that all ballots cast are legal. No court should be authorized to discard all absentee ballots; tendered by over seven hundred legal voters of the county merely upon the general view or general conclusion above stated'. That could result in doing too much violence to the individual right to vote, without any effective way -to check or to test the general conclusion, for lack of specific findings.
The controlling question in this case is whether the District Judge and the District Court had jurisdiction to follow the procedure and to undertake the actions engaged' in by the processes of these civil actions. We agree with the majority opinion that this question must be answered in the negative. Under our Constitution, Art. 5,- § 30, the State Senate is the final judge of its-own membership, -but this appeal must be decided by this Court, and since its determination is governed by State Laws we must follow them.
Tn support of the majority opinion construction of the applicable laws, it should! *537be emphasized that this case demonstrates the fact that in the case of primary elections, there is neither -time for a full and complete trial of the case in the trial court, (as we observe here), nor time for proper presentation and determination of the cause on appeal, in time to print names on future ballots.
Our attention is drawn to the fact in this case that on account of the orderly processes of court procedure, with due hearings and presentations, and fair consideration, there could not be sufficient time to conclude litigation by next election time, so neither name went on the ballot for lack of any certification from the County Election Board. There was no such certification because the trial court thought it necessary and "proper to enjoin and prohibit it by the two orders referred to in the majority opinion. While the orders were both invalid for lack of jurisdiction, they effectively prevented full completion of the recount hearing and prevented any certification or the placing of either name on the ballot.
It should be further pointed out that while the trial court found it impossible to determine the exact number of legal and illegal absentee ballots, perhaps for lack of time in the civil action trial which commenced after the middle of September, yet the number of legal and illegal absentee ballots could have, been determined with mathematical certainty in the recount hearing commenced promptly and conducted with dispatch as provided and required by Sec. 391, supra. The sole and avowed purpose of that section is to make that determination with exact mathematical certainty.
Thus, as pointed out in the majority opinion, there was not a lack of remedy to the candidate here, as to the absentee ballots here involved.
The stated general findings of fact by the trial court set up a situation which demonstrates the lack of any need for judicial interference in these civil actions with the recount hearing provided by statute, and in that way such findings offer support for the plan and purpose legislatively intended and offer support for the majority opinion’s construction of the statutes.
We cannot check the record and decide for or against evidential support of those findings, since the lack of trial court jurisdiction controls disposition here, but assuming, as the trial court found, that several hundred of these 711 absentee ballots weré illegal for the reasons observed and set out by the trial court', then surely the recount hearing would have developed such illegalities.
With the facts as above assumed, it is hardly possible that the Judge and the Election Board working together in the recount hearing could have failed to observe, at least in large part, those same illegalities which the Judge himself observed in the civil action hearings, if the recount hearing had been permitted to continue to its normal conclusion with final decision and certification of result. Substantially less than two hundred illegal votes showing up in the recount hearing among the 711 absentee ballots originally counted would have been sufficient to change the election result from Russell to Payne, and in my view the recount should not have been interfered with by court order, but such hearing should have been allowed to continue to final conclusion and certification of result in the manner planned and provided for by the applicable legislative enactments, to the end of arriving at the fair and true and final election result with dispatch, as contemplated by the law, and as desired by all.