(dissenting). I am unable to agree to the majority opinion in the above matter in its entirety. I concur in the majority opinion insofar as it holds that the contestant, Brickell, was not entitled to stop or end the recount of the ballots in the fourteen precincts which he requested be recounted after nine precincts had been counted and contestant found himself two votes in the lead. I think the majority opinion correctly holds that the county election board should continue the recount until all the fourteen precincts challenged in the first instance have been recounted, and that because in the meantime contestee, Kessler, requested a recount in the remaining precincts of the district, he was entitled under the law to have all the remaining precincts recounted, upon compliance with the law with reference to deposit of costs therefor.
On the question of the right of contestant to present evidence before the county election board concerning his allegations of fraud and misconduct as to Precinct No. 29, in Ward 3 of Oklahoma City, I think the majority opinion ignores positive provisions of the statute which give contestant that right.
By section 6123, C.O.S. 1921, enacted in 1908, the right to contest the announced result of a primary election was provided. That is clearly shown by the decision of this court in Dabney v. Hooker, 121 Okla. 193, 249 P. 381, and especially by the concurring opinion of Mr. Justice Branson.
That right was taken away by the enactment of the Act of April 9, 1925, chapter 96, page 145, S. L. 1925. That also was decided in Dabney v. Hooker, supra. Therein the court said:
. . and as the law now stands (September 22, 1926) there is no provision of the statute . of this state authorizing a plenary action for the contest of a primary election; such rights being purely political it could not exist except by some statute authorizing same.”
In 1927, the Legislature enacted Senate Bill No. 324, chapter 63, S. L. of 1927, pages 82 to 86. Section 1 of said act provided:
“Neither the right to a certificate of party nomination, nor the right to certificate of election, shall be considered a property right to any extent whatsoever, unless and until such right’ to such certificate shall be determined and such certificate issued as hereinafter provided.”
Section 2 provided that no certificate of party nomination or certificate of election should be issued by the county election board within a period of ten days following any primary, or general election, within and for said county, and no certificate of nomination, or certificate of election should be issued by the State Election Board until after the expiration of ten days from the date of such primary election as to any party nomination or election to state office, or any other office over which the State Election Board shall have jurisdiction.
Section 3 of said act provided:
“Any candidate for party nomination to’county office may, at any time within ten days from the date of the primary or the general election, file with the County Election Board his or her challenge of the correctness of the announced results of said primary of general election by filing with the County Election Board, whose duty it is to canvass the returns in such race, a verified statement setting forth a state of facts which, if true, would change the result in his or her favor; or setting forth a state of facts showing that fraud has been committed in connection with such nomination or election, or both, which, if sustained, would affect the result of the election and change the same in favor of the contestant.”
Sections 4, 5, and 6 of said act provided for notice and service of notice.
*368Section 7 provided:
“Except as hereinafter otherwise provided, the same procedure shall apply as to the candidates for District or State offices over which the State Election Board has jurisdiction and where provision is herein made for the filing of contest as to county offices, such contest as to State or District offices shall be filed with the Secretary of the State Election Board. And where provision is made for the constructive service on contestee upon the Secretary of the County Election Board, the same shall be upon the Secretary of the State Election Board, and such personal service shall be made by the Sheriff of the county of the residence of such contestee or contestees, and shall have the same force and effect as to State and District offices as herein provided for county offices.”
Section 9 of the act provided that after the completion of service of notice, the county election board, or the State Election Board, as the case may be, shall set the contest for hearing on a day certain, and further provided:
“. . . at which 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, and such decision shall be final and conclusive of all rights involved, unless an appeal shall be taken as hereinafter provided.”
Section 14 of the act provided that in contests for party nominations for district or state offices, or election thereto, where a recount of the votes in any county shall be required, or fraud shall be charged as to any given county, or counties, as to the election proceedings in any such county, or counties, the State Election Board shall have the right and authority to refer such contest to the county election board of each county involved for the purpose of taking all testimony to be submitted and considered in connection with such contests as to such counties respectively, and make and submit findings thereon, in due course, to the State Election Board. (Emphasis mine.)
Section 15 provides:
“All hearings shall be public, and the Chairman and Secretary of such board respectively shall have the right and are hereby authorized and empowered to issue subpoenas for all witnesses to be used at such hearings, to administer oaths, and the clerk of such boards shall make and certify such proceedings and findings with the same force and effect as other records are certified by the custodian thereof.”
It appears that under the 1927 act it was the policy of the law, expressly stated at least three times, that in such contests the parties have the right to offer or submit legal evidence to be considered in connection with such contests.
In 1929 the Legislature enacted House Bill No. 2, providing for a “run-off primary” election. Chapter 241, 1929 S. L., page 303, et seq.
Section 6 of that act provided that any candidate in any general primary election may challenge the announced and posted results thereof by filing with the county election board whose duty it is to canvass the election returns of and in said county, a verified petition setting forth a detailed statement, in separately numbered paragraphs, of each error or alteration complained of, which allegations, if true, will show that petitioner for recount had a majority of all the votes cast for said nomination, or show that no candidate received such a majority, and that the petitioner had received the highest or next highest vote for said nomination.
Said section 6 also provided that any candidate in a run-off primary election may challenge the correctness of the announced and posted result thereof by filing with the proper county election board a similar statement. Said section provides for notice and hearing, etc., and further provides:
*369“The secretary of the county election board is hereby authorized to issue subpoenas for witnesses for such hearing, same to be immediately served or attempted to be served, by the sheriff and his salaried deputies in the manner provided by law for the service of subpoenas in civil actions in the district court, ...”
That Act also provided, in effect, that the parties to a primary election, or run-off primary election contest, could produce evidence concerning the matters charged in said contest.
In 1931, the Legislature enacted Senate Bill No. 139, chapter 29, article 3, S. L. 1931, amending a number of sections of the statutes of Oklahoma relating to elections. Section 8 of chapter 29, S. L. 1931, amended section 1, chapter 63, S. L. 1927. That section became and now is section 391, Title 26, O. S. 1941. It is now in force and has been since its enactment in 1931. Said section provides that the right to a certificate of party nomination shall not be considered a property right to any extent whatever unless and until such right to such certificate shall be determined and such certificate issued as herein provided. It then provides that no certificate of party nomination shall be issued by the county election board before Thursday noon following any primary election, and no certificate of party nomination shall be issued by the State Election Board before Saturday noon next following such primary election. It then provides that:
“Any candidate for party nomination to a county office may, at any time before noon Thursday next following the primary election, file with the Secretary of the County Election Board his or her challenge of the correctness of the announced results of said primary election by filing with the Secretary of the County Election Board whose duty it is to canvass the returns in such a race, a written application requesting a recount of the ballots as to one or more precincts in such county, and where such application is accompanied by a cash deposit of not less than $250.00 for each county. It shall be the duty of said election board to order said recount and proceed with the same as herein provided.”
Said section then, among other matters, provides for notice and service of notice upon the contestee or contestees, and further provides:
“Except as hereinafter otherwise provided, the same procedure shall apply as to the candidates for district or state offices over which the State Election Board has jurisdiction, and where provisions (sic) is herein made for the filing of contest as to county offices, such contest as to State or district offices shall be filed with the Secretary of the State Election Board before Saturday noon next following said primary election.”
It then provides for constructive notice on the contestant, or contestee and further provides:
“Upon the completion of service as aforesaid, the county election board in case of a contest for county office, and the State Election Board, in case of a contest for State or district office, shall set such contest down for a day certain for hearing, same not to be moré than twenty-four hours from the time of the completion of such service, 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 in and for said county, or in case of the disqualification or inability of such judge to act, of a judge of the District Court of some other district, assigned by the Chief Justice of the Supreme Court for that purpose, that (sic) attend, and in conjunction with said County Election Board, to conduct such recount. It shall be the duty of such District Court and of the judge thereof to hear evidence as to whether the ballots have been preserved in the manner and by the officers prescribed by the Statute, and as to whether they are the identical ballots cast by the voters, and that while in said custody they have not been exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with and the judgment of *370said court upon such questions shall be final and conclusive.”
It then provides:'
“As to those ballots only that said court shall determine have been so preserved and are the identical ballots cast by the voters and have not been exposed to the reach of unauthorized persons so as to afford a reasonable opportunity of their having been changed or tampered with, the county election board, at said time, and without further notice shall proceed to recount such ballots.”
And:
“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, and such decision shall be final and conclusive of all rights involved.” (Emphasis mine.)
Later in said section it is provided:
“Provided, that in contest for party nomination for district or State offices, where a recount of votes in any county shall be required, the State Election Board shall have the right and authority to refer such contest to the county election board of such county involved, for the purpose of taking all testimony to be submitted and considered in connection with such contest as to such counties respectively and to make and submit findings thereon without delay to the State Election Board, . . .”
And:
“All hearings shall be public, and the chairman and secretary of such board respectively shall have the right and are hereby authorized and empowered to issue subpoenas for all witnesses to be used at such hearings, to administer oaths, and the Secretary of such boards shall make and certify such proceedings and findings with the same force and effect as other records are certified by the custodians thereof.”
It is thus made clear that in such election contests the county election board, in conjunction with the district court, shall first hear evidence as to whether the ballots have been preserved in the manner and by the officers prescribed by the statute and as to whether they are the identical ballots cast by the voters, and that while in said custody they have not been exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been tampered with. It then provides that as to those ballots only that said court shall determine have been properly preserved and are the identical ballots cast by the voters, the county election board at such time and without further notice shall proceed to recount such ballots. It then says that:
“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.”
It is clear in my mind that this means that at the time of recount hearing or proceedings, the parties in interest may without further pleadings offer such legal evidence in support of or in opposition to such contest as they may have, and that this includes evidence of fraud either upon the part of any voter or voters, or on the part of the county election board or officials, which would tend to support the contest, or which would tend to oppose it. It was held in Coe v. State Election Board, 203 Okla. 356, 221 P. 2d 774, that said section 391 applies to both general and run-off primary elections.
As to fraud, the rule is stated in 18 Am. Jur., Elections, sec. 229, as follows:
“Although fraud upon the part of an individual voter vitiates his ballot, it does not invalidate the returns where the election officers were not parties to the improper acts, for in such a case the returns are accepted and purged of the illegal votes. Even in case of irregularity due to fraud of election officers or others it does not necessarily follow that the election is vitiated or that the votes from a precinct should be rejected, for to estab*371lish a fixed rule of this sort would result on occasion in the disfranchisement of numbers of honest voters. In accordance with the general rule already stated, however, the vote of an entire district will be rejected where fraud is practiced therein to such an extent that the true legal result of the election cannot reasonably be determined.”
It is alleged in the petition of contestant that as to Precinct 29, Ward 3, which lies partly within and partly outside of the city of Oklahoma City, those voters residing within said precinct and outside of the city of Oklahoma City were entitled to vote for party nominations for justice of the peace in the district outside of said city; that the county election board, or whoever prepared the county ballots, printed on said ballots for voters in said precinct outside the city limits, not only the names of candidates for justice of the peace, but also the names of the candidates for representative of the State Legislature for the 5th District of Oklahoma county, which included the names of contestant and contestee; that their names were also printed on the legal ballots of state candidates so that the voters residing in said precinct outside the city of Oklahoma City were afforded the opportunity to vote twice for the democratic candidates for nomination for such representative. It is alleged that eight of said ballots were so used and voted by voters residing outside the city of Oklahoma City in the race for said nomination for representative. At the oral argument it was admitted that seven of such ballots were so used and voted as shown by the ballot stub books. It is asserted, however, that one ballot stub book was missing, but it is not clear whether that was a stub book of the outlying part of said precinct or a stub book for the regular ballots of the precinct as a whole. The printing and furnishing said spurious and unauthorized ballots, if true, was a legal fraud perpetrated, not by the individual voters but by the officer, or officers, who prepared the ballots. If this is true, the election inspector and judges participated in such fraud by distributing or issuing such spurious ballots to the voters residing in the outlying part of said precinct.
However, that of itself would not be sufficient to change the result of said election, since the recount showed that contestee received sixteen more votes than contestant. However, the evidence might show that the missing ballot stub book was for ballots issued to the voters in said outlying part of said precinct.
It is further alleged, under oath, that the contestee, Kessler, while said primary election was progressing, entered the polling place, or room, where said election was being held in said precinct No. 29, and there personally solicited votes, talked with voters, offered them cigars and assisted the firm and infirm voters in marking their ballots; that he remained in said room for some time and refused to leave until a policeman was called to remove him. This is denied, under oath, by contestee and cannot, of course, be proven except by introduction of evidence. If it be true, contestee is guilty of direct violation of the election laws. Whatever the combined effect of the issuance of the unauthorized ballots above referred to, and the unlawful conduct of contestee in entering the polling room and soliciting votes therein, if it be true that he did so, can only be determined by full hearing before the county election board and district court and on an opportunity being given to the parties to present such legal evidence as they may have concerning said matter. If upon a full hearing it be found by the county election board and district court that by reason of the unlawful distribution of duplicate ballots, and the -conduct of the contestee, the true legal result of the election cannot be determined, then the vote of the entire precinct should be rejected under the rule stated under 18 Am. Jur., supra.
*372Contestant alleges that he appeared before the county election board and the district judge and requested that he be allowed to present evidence and, in fact, offered evidence to prove such facts, and in support of his allegation as to irregularities of the board and the alleged misconduct of the contestee, and that the board and the court denied his offer and request.
The majority opinion herein, as I view it, denies contestant the right to be heard and present his evidence before the proper tribunal set up by statute for the purpose, in violation of the statute itself. It entirely overlooks the statute which clearly gives contestant the right to present evidence before the county election board in support of his contest.
I think this court should issue an order requiring the county election board and district court to permit contestant to present evidence in support of his allegations and consider the same, and make such findings of fact as the evidence warrants, and the State Election Board should be prohibited from issuing the certificate of nomination until after such hearing has been afforded and the facts determined, or if this may not be properly done, then I think this court should refer this matter to a referee to hear the evidence and make findings of fact thereon, to the end that this court may itself determine the facts and enter its judgment' accordingly.
For the reasons stated, I respectfully dissent.