BOZARTH v. COUNTY ELECTION BD.

BOZARTH v. COUNTY ELECTION BD.
1930 OK 358
291 P. 804
144 Okla. 206
Case Number: 21626
Decided: 09/09/1930
Supreme Court of Oklahoma

BOZARTH
v.
COUNTY ELECTION BOARD of OKMULGEE COUNTY et al.

Syllabus

¶0 1. Elections--Run-Off Primary Law.
The primary election held in the state of Oklahoma on the 12th day of August, 1930, and all the proceedings for the nomination of candidates thereat and the tabulation and certification of the results thereof are governed by the provisions of chapter 241, Session Laws of 1929, otherwise known as the run-off primary law.
2. Same--Conclusiveness of Returns by Precinct Officials--Procedure for Recount by County Election Board--Conclusiveness of Certificate by County Board.
Under the provisions of chapter 241, Session Laws of 1929, the ballots cast at a primary election are to be counted by the official counters of the precinct, who shall "make and sign a statement giving the names of the persons voted for, the office for which each sought the nomination, and the number of votes received by each, fully certifying the results of such elections; such certificate shall become a part of the official returns of such elections." The returns of the election made by the precinct officials are prima facie evidence of the correctness of the precinct vote and are conclusive evidence thereof in the absence of a verified petition challenging the correctness of the announced and posted results filed with the county election board in the form and manner and within the time provided by the act. If such a verified petition in the form provided is filed in the manner and within the time provided, requesting a recount of the ballots, it is the duty of the county election board to inspect and count the ballots from the precincts questioned by the petitioner, after having determined from the evidence offered at a hearing that the ballots "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with," and the certificate of the county election board of the result of the election as shown by its determination after such hearing and a recount of the ballots, if such is had, shall be conclusive evidence of the results of the primary election in the county.
3. Same--County Election Board upon Recount not Authorized to Determine Qualifications of Voters or How Any Voter Voted.
The county election board has only such authority in election contests or petitions for recount to correct errors as is contained in chapter 241, Session Laws of 1929. There is nothing therein that authorizes the county election board to determine the qualifications of voters who voted at the election or how any voter voted at the election.
4. Same--Right to Recount--Burden upon Contestant to Show Identity and Proper Custody of Ballots.
Under the provisions of chapter 241, Session Laws of 1929, an election contestant is given the right to a recount of the ballots cast in any precinct upon the filing of a verified petition in the manner and form and within the time therein specified, but before a recount of the said ballots may be had, there must be a showing by evidence that the ballots "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with." The burden of making such showing is upon the election contestant. In the absence of such a showing the prima facie case made by the returns of the precinct election officers must prevail.
5. Same--"Ballots Questioned" -- Statute Construed.
"The ballots questioned," as used in section 6, ch. 241, Session Laws of 1929, means all of the ballots from each of the precincts questioned by the petitioner in his verified petition.
6. Same--Petition for Recount Held Sufficient.
Petition for recount of ballots examined and held sufficiently definite and certain and in conformity with the requirements of chapter 241, Session Laws of 1929.
7. Same--Invalidity of Recount Proceeding by County Board Without Determination from Evidence as to Identity and Proper Custody of Ballots.
Where a county election board proceeds to open the ballot boxes and count the ballots therein without a determination from evidence that the ballots "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with," the result thereof cannot be considered to defeat the prima facie case made out by the returns of the precinct election officers, there being nothing to show that the ballots cast at the election and counted by the precinct counters were the ballots counted by the county election board.
8. Same--Election Results not Affected by Delay in Returns from Precinct.
The fact that precinct election officials failed to make the returns of the election to the county election board within the time provided by chapter 241, Session Laws of 1929, does not defeat the election held at that precinct, and where such returns are made to the county election board before the county election board has completed its canvass of the results of the election, the returns of the precinct must be considered by the county election board, notwithstanding they were not received by that board within the time provided by the statute.
9. Same--Precinct Returns not Invalidated by Fact That Only Three Counters Served.
The fact that only three official counters were appointed and acted in a precinct and that the returns from that precinct to the county election board were signed by only three official counters, when section 6144, C. O. S. 1921, provides for four official counters, does not defeat the election held at that precinct, and where the returns from that precinct are otherwise correct and it is not shown by evidence that the failure to have four official counters at the precinct and to have the precinct returns signed by four official counters materially affects the returns from that precinct, the action of the three precinct election counters is valid and the returns made by the three official counters must be considered by the county election board in determining the result of the election.
10. Same--Board's Determination Without Hearing as to Identity and Proper Custody of Ballots Held Unauthorized Application of Judicial Force and Subject to Supervision of Supreme Court.
In determining whether the ballots "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with," whether there has been an error in the tabulation of the returns or whether there has been alteration of the tabulation of the returns, the county election board acts in a judicial capacity. In that capacity it is subject to the supervision of this court under the provision of section 2, art. 7, of the Constitution of Oklahoma. If the county election board attempts to determine whether the ballots "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with," without a hearing on those questions, it assumes to act in contravention of and in excess of its authority, and its action is an unauthorized application of judicial force.
11. Same--Unauthorized Action of Board in Determination as to Voter's Qualifications and How They Voted.
The county election board, on a petition under the provisions of section 6, ch. 241, Session Laws of 1929, has no authority to determine that ballots cast at said election were cast by persons not authorized to vote, or to determine how such persons voted. Where a county election board attempts to determine those questions it is acting without authority of law.
12. Same--Action of Board in Recounting After Proper Showing Held Ministerial and not Subject to Control by Court.
The action of the county election board, in proceeding to recount ballots after a proper showing therefor has been made, is ministerial in its nature and its action will not be controlled by this court.

Original proceeding for writ of prohibition by Mark L. Bozarth against the County Election Board of Okmulgee County and members thereof. Writ granted.

Charles A. Dickson and W. A. Barnett, for petitioner.
Respondent in person.

ANDREWS, J.

¶1 This is an original proceeding in this court for a writ of prohibition against the county election board of Okmulgee county and the members thereof from proceeding with the recount of the ballots cast for district judge at the runoff primary in Okmulgee county on August 12, 1930.

¶2 No question is raised as to the sufficiency of the petition for a recount of the ballots.

¶3 The issues of law presented herein are identical with those presented in Case No. 21575, Joseph C. Looney, Petitioner, v. County Election Board of Seminole County, Respondent (this day decided), 145 Okla. , except that there is one additional contention made herein, which is that in precinct 17 only three official counters were used and the returns therefrom were signed by only three official counters, when it is contended that under section 6144, C. O. S. 1921, four official counters were required.

¶4 We think that the law announced in the Looney Case is applicable to the issues presented herein and that a writ similar to the one therein issued should be issued herein Neither section 6144, supra, nor any other provision of our statute provides that the use of three official counters in place of four official counters will void an election. We think that that was a mere irregularity.

¶5 It is, therefore, ordered that the county election board of Okmulgee county, Okla., and each and all of the members thereof, be, and they are, prohibited from recounting any of the ballots cast at the primary election held in Okmulgee county on the 12th day of August, 1930, until such time as it shall be made to appear to that board that the ballots sought to be recounted "had been preserved in the manner and by the officers prescribed by the statute, and that they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with;" that they, and each of them, be, and they are, prohibited from determining the qualifications of any voter who voted at said election, and that they, and each of them, be and they are, prohibited from determining how any voter voting at said election voted thereat.

¶6 It is further ordered that in all other particulars the petition for writ of prohibition be, and it is, denied.