WAGONER COUNTY ELECTION BOARD v. PLUNKETT

Annotate this Case

WAGONER COUNTY ELECTION BOARD v. PLUNKETT
1956 OK 329
305 P.2d 525
Case Number: 37561
Decided: 12/14/1956
Supreme Court of Oklahoma

WAGONER COUNTY ELECTION BOARD AND JOHN W. RUSSELL, APPELLANTS,
v.
WARREN D. PLUNKETT AND TOM PAYNE, JR., APPELLEES.

Syllabus by the Court.

¶0 1. A qualified elector who has no personal interest in a political party's nomination of a candidate for public office, and no greater interest in free, equal and legal elections than other qualified electors in the nominating district, is not a proper party plaintiff in an action to contest the validity of absentee ballots cast in a run-off primary election contest.
2. At common law there existed no right to contest the title to the nomination of a political party to public office in the courts. No such right exists except by statute and no such statute is now in effect in this jurisdiction to authorize a civil action in the nature of quo warranto.
3.

Appeal from the District Court of Wagoner County; Andrew Wilcoxen, Judge.

Actions in the nature of a quo warranto proceeding to contest a run-off primary election. From judgment and orders in favor of plaintiffs, defendants appeal. The judgments and orders are vacated and set aside with directions.

Earl Youree, Wagoner, Green & Green, Sallisaw, for appellants.

Bailey & Pitchford, Okmulgee, Smith & Douglass, Henryetta, for appellees.

PER CURIAM.

¶1 It is alleged in plaintiffs' separate petitions in the District Court of Wagoner county that illegal absentee ballots were cast in the run-off primary election for State Senator held on July 24, 1956, and that such ballots were counted and considered by the Wagoner County Election Board in tabulating their returns. It is sought to change the result of the election by excluding, in these actions, the absentee ballots which are alleged to be illegal and improperly counted by the Wagoner County Election Board. While numerous assignments of error are made it is suggested that we first determine the question of the jurisdiction of the District Court to entertain these actions.

¶2 The facts are that John W. Russell, Jr., and Tom Payne, Jr., were candidates for State Senator from the district comprising Okmulgee and Wagoner counties in the run-off primary election held on July 24, 1956. Russell received a majority of the votes and Tom Payne, Jr., filed application with the State Election Board for a recount of the ballots cast in Wagoner county. The State Election Board referred the matter to the County Election Board for recount pursuant to the provisions of

¶3 On July 30, 1956, and before the results of the recount had been certified to the State Election Board, the two actions involved in this appeal were filed in the District Court of Wagoner county. One action is by Warren D. Plunkett, a Democrat voter in Wagoner county who voted for Tom Payne, Jr. The other action was filed by Tom Payne, Jr., a Democrat voter and candidate residing in Okmulgee county. These petitions separately allege that the County Election Board, and its members, had failed and refused in their recount to properly determine the qualifications of absentee voters and to properly determine whether the absentee voters had complied with statutory requirements in the procurement and voting of absentee ballots.

¶4 The plaintiffs, Plunkett and Payne, further allege in their separate petitions, and pray, that the District Court direct all absentee ballots be brought into court; that plaintiffs be permitted to present evidence to the court regarding the illegality of the absentee ballots; and that the County Election Board and its members be restrained from certifying the results of their recount to the State Election Board, until plaintiffs are permitted to present evidence to the District Court in support of their petitions. They asked the District Court to determine which absentee ballots were legally cast and to count only those which the District Court determines to be valid, or if the District Court should determine that the absentee ballots were tainted with illegality to refuse to count any of them.

¶5 On the day the petitions were filed the District Court restrained the defendant County Election Board and its members from certifying the results of the recount to the State Election Board. Thereafter John W. Russell, Jr., filed an intervention in each of the cases.

¶6 For convenience Warren D. Plunkett and Tom Payne, Jr., will be referred to either by name, or as plaintiffs. The Wagoner County Election Board, and its members, will be referred to as defendants, or by name, and John W. Russell as intervenor.

¶7 Defendants filed answers and contended that the District Court was without jurisdiction to conduct a hearing on the matters set forth in plaintiffs' petitions. The District Court overruled pleas to the jurisdiction, and demurrers, and the cases were consolidated and came on for trial on September 17, 1956.

¶8 The District Court found that persons voted absentee ballots who were not absent from their voting precincts and were not suffering from sickness or disability; that some absentee voters did not sign their affidavits in the presence of the notary public who later completed the affidavits; and that in a few instances a relative, or other person, other than absentee electors either marked the ballot or signed the affidavit. The court found that there was no fraudulent conspiracy to obtain illegal ballots by corrupt or illegal methods; ruled that these cases involve no use of relief fund checks; but did find that there were more than enough absentee ballots cast which failed to comply with the absentee ballot law to change the result of the run-off primary election. The court further found that it was not possible to determine with mathematical certainty the number of ballots so cast but gave no reason why such impossibility existed.

¶9 The District Court refused to recognize any of the absentee ballots voted in Wagoner county, including those admittedly legal, and restrained the County Election Board from including in the official returns to the State Election Board any returns from the absentee ballots box, or any result from the absentee ballots cast in said election. The defendant Board was further ordered to certify a return to the State Election Board without including therein the returns from the absentee ballot box. However, the Board was ordered to stay all proceedings under the judgment pending perfection of an appeal to this court and a determination of the same.

¶10 From the foregoing it is apparent the District Court rejected the recount conducted by the County Election Board and proceeded independently of the Board to try the issues set forth in plaintiff's petitions.

¶11 Defendants and Intervenor have appealed and with permission of this court have confined their argument to one proposition: "The District Court had no authority to enjoin the County Election Board of Wagoner county, Oklahoma, from certifying the results of the run-off primary election for State Senator."

 
¶12 Plaintiffs bring their actions as private citizens and electors under certain constitutional guaranties. "Free and equal elections" Art. 3, § 7 [3-7]; "purity of the ballot", Art. 3, § 6 [3-6]; and "there can be no wrong without a remedy," Art. 2, § 6 [2-6]. They assert that in view of these constitutional provisions the courts must take jurisdiction where the Legislature fails to provide an adequate remedy or procedure to implement these constitutional guaranties.

¶13 In order to clearly recognize all of the legal problems raised by plaintiffs' petitions we feel that it will be helpful if we recognize Mr. Plunkett as a citizen and qualified elector in Wagoner county, and Mr. Payne as a qualified elector and candidate for nomination as State Senator by the Democrat party in the senatorial district.

¶14 Assuming, as argued by Mr. Plunkett, that he has a right to have his vote count for all it is worth and not in competition with illegal votes, we are confronted with the question of whether he has a right to bring an action in his own name for the relief demanded. It is recognized that his right is no greater than all those others who voted for Mr. Payne. He has no personal interest in the result of the election, and in our view no greater interest in free and equal elections and the purity of the ballot than other qualified electors in the senatorial district. The result he hopes to achieve by his action is to discard the alleged illegal absentee ballots and ultimately have his candidate declared the nominee of the Democrat party.

¶15 This court has heretofore held in numerous decisions that if the injury is one that particularly affects a person, he has a right to the action, but if it affects the whole community alike their remedy is by proceedings by the state through its appointed agencies. That is, by the county attorney or attorney general. Cheek v. Eye, 96 Okl. 44, 219 P. 833. See also Robison v. Chapman, 158 Okl. 244, 13 P.2d 173; and Frittz v. Thorpe, 149 Okl. 219, 299 P. 884.

¶16 In Garrett v. London, 107 Okl. 72, 229 P. 1074, it was held under Sec. 460, C.O.S. 1921,

"* * * The statutes giving this right of action
were intended to protect the interest of one claiming
the office, but it nowhere appears that it was
intended that an individual should be substituted the
representative of the public at large to prosecute an
action claiming the total invalidity of an election.
The power and right to prosecute such action inheres
in the sovereignty. * * *"

¶17 Our statute,

¶18 In 74 C.J.S., Quo Warranto, § 1b, pages 174-175, it is said:

 
"* * * The ancient writ [of quo warranto] was in
the nature of a writ of right for the king, against
him who claimed or usurped any office, franchise, or
liberty, to inquire by what authority he supported
his claim, in order to determine the right, * * *."

¶19 In 74 C.J.S. Quo Warranto, § 28, page 222, it is said:

"Unless the case is within a statute authorizing
him to do so, * * * a private person cannot bring a
quo warranto action or proceeding in his own name, or
in the name of the state, attorney general, or
prosecuting attorney, independently of the attorney
general or prosecuting attorney; * *."

 
¶21 Since Mr. Plunkett has no personal interest in the nomination, and no greater interest in "free and equal elections" and the "purity of the ballot" than other qualified electors in the district we must conclude that he could not, as an individual, bring an action to contest the validity of the absentee ballots.

¶22 It may properly be argued that Mr. Payne has a pecuniary interest in the nomination and a greater interest in "free and equal elections" and the "purity of the ballot" than other qualified electors in the senatorial district. However it must be recognized that this greater interest results from his candidacy and that his rights as a candidate are governed by other provisions of the statutes.

¶23 In

¶24 In

"The writ of quo warranto and proceedings by
information in the nature of quo warranto, are
abolished and the remedies heretofore obtainable in
those forms may be had by civil action; provided,
that such cause of action may be instituted and
maintained by the contestant for such office at any
time after the issuance of the certificate of
election by the state, county, township, or city
election boards, and before the expiration of thirty
days after such official is inducted into office; * *
* and provided further, that this Act shall not
apply to primary election." (Emphasis supplied.)

 
¶25 The quoted section of the statute was enacted in 1925 as Senate Bill No. 395, S.L. 1925, page 145. Recognizing this section of the statute in 1926 in Dabney v. Hooker, 121 Okl. 193, 249 P. 381, this court held in the first paragraph of the syllabus:

"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 specifically provided for by statute."

¶26 In the body of the opinion, 121 Okl. at page 194, 249 P. at page 382, it was said:

"Is there any authority, statutory or otherwise,
which provides for a contest of this nature? At
common law there existed no right to contest in the
courts the title to the nomination of a political
party for public office. Jarman v. Mason, 102 Okl.
278, 229 P. 459; Lansdon v. State Board, 18 Idaho
596, 111 P. 133; State ex rel. Hatfield v.
Carrington, 194 Iowa 785, 190 N.W. 390; Bradley v.
Board [of State Canvassers], 154 Mich. 274, 117 N.W.
649; State v. Woodruff, 68 N.J.L. 294, 52 A. 294.

"* * * and, as the law now stands, there is no
provision of the statutes 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 virtue of some statute authorizing
the same."

¶27 This court has consistently adhered to the rule announced in the Dabney case for more than thirty years. See Looney v. County Election Board of Seminole County, 145 Okl. 25, 291 P. 554, 71 A.L.R. 420; Brickell v. State Election Board, 203 Okl. 362, 221 P.2d 785, 788. In the body of the opinion in the Brickell case it is said:

"This court is committed to the rule that at common
law there existed no right to contest the title to
the nomination of a political party to public office
in the courts and none now exists unless specifically
provided for by Statute."

¶28 In 18 Am.Jur. Elections - § 272, at page 359, it is said:

"It is a firmly established general rule that the
jurisdiction of courts exercising general equity
powers does not include election contests, unless it
is so provided expressly or impliedly by organic or
statute laws. The reason for this exclusion is that
the questions involved are political and that the
right to public office is not considered as
constituting property in such sense as will warrant
the intervention of equity to protect it. * * *
Accordingly, a court of equity will not restrain
officers on whom devolves the duty of declaring the
result of an election from performing their duty or
enjoin the issuance of a certificate of nomination to
a successful contestee in a primary election
contest."

¶29 It is pointed out in argument that Art. 2, § 6 [2-6], Okl.Const., requires a remedy for every wrong, and in this connection it is argued that the courts must take jurisdiction where the Legislature fails to provide a remedy. The ultimate conclusion from this argument is that the Legislature has not provided an adequate remedy and that the courts must take jurisdiction and create a remedy. In considering this proposition we cannot be unmindful of the fact that the Legislature has provided that the right to a certificate of nomination is not a property right,

¶30 In Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 942, in the body of the opinion this court said:

"* * * The mandate of section 6, art. 2, of the Constitution is:

"`The courts of justice of the state shall be open
to every person, and speedy and certain remedy
afforded for every wrong and for every injury to
person, property, or reputation; and right and
justice shall be administered without sale,
denial, delay, or prejudice.'

"That this was a mandate to the judiciary and was
not intended as a limitation upon the legislative
branch of the government seems clear. Neither do we
think it was intended to preserve a particular remedy
for given causes of action in any certain court of
the state, nor was it intended to deprive the
Legislature of the power to abolish remedies for
future accruing causes of action (where not otherwise
specifically prohibited), or to create new remedies
for other wrongs as in its wisdom it might determine.
Section 36, art. 5, declares that:

"`The authority of the Legislature shall extend to
all rightful subjects of legislation.'"

 
¶31 In State ex rel. Decker v. Stanfield, 34 Okl. 524, 126 P. 239, 241, this court held:

"We think this section of the Constitution [Art. 2,
Sec. 6] must be enforced, but that it must be
enforced in accordance with the law. We do not think
it means that, regardless of the statute, * * *
courts shall proceed in violation of the law."

¶32 We have considered the problem under comparable equitable principles. In 30 C.J.S., Equity, § 105, page 506, it is said: "Equity Will Not Suffer a Wrong to Be without a Remedy." However, the courts have recognized that this right to a remedy is not an absolute right. There are numerous classes of cases where equity will not afford relief. Thompson v. Allen County, 115 U.S. 550, 6 S. Ct. 140, 29 L. Ed. 474; 30 C.J.S., Equity, § 105, page 507.

¶33 We have also considered the question of whether it is the duty of a court of equity to take jurisdiction where, as here, there was not sufficient time for the parties to present their case to the trial court, nor sufficient time for an appeal. The record discloses that on the fourth day of the trial the court in effect directed the plaintiff, Payne, to close his case on the following day. The plaintiff objected and was overruled. On the following day plaintiff again objected to his evidence being curtailed and made an offer of additional proof. Defendants joined in requesting that plaintiff be given time to try to make the proof he offered, but the objection was overruled and the offer of further proof by plaintiff was denied. The court, in effect, required defendants to close their case on September 28th, after consuming three and one-half days in presenting their evidence, and denied their offer of further proof. Plaintiff was denied time to present rebuttal testimony. It is quite evident the trial court felt compelled to make these rulings in order to leave some time for an appeal to this court.

¶34 If it may be assumed that the trial court was under duty to assume jurisdiction then it must necessarily follow, in the absence of statute, that the unsuccessful litigant would have the right to take an appeal. Is it the duty of the trial court to assume jurisdiction when it is apparent that there will be insufficient time to complete an appeal before the date for the next election and where the questions may be rendered moot for lack of time to present the appeal? Is this court authorized to postpone the next election day in order to provide time for an adequate remedy? In 30 C.J.S., Equity, § 16, page 336, it is said:

"A court of equity will not do a useless or vain
thing, and will not require the doing of a vain or
useless thing or the performance of an impossible
act. So, even though the court has jurisdiction, it
will not lend its powers to accomplish a useless
purpose, nor will it grant a decree which does not
confer any real benefit or effect any real relief,
which is impracticable to carry out, which is not
enforceable, or which is nugatory or ineffectual
because compliance therewith is impossible. Courts
also refuse to grant equitable relief where, if
granted, one of the parties may nullify the action so
taken by the exercise of a discretionary right which
* * * the law * * * has conferred on him."

¶35 We hold that Art. 2, § 6 [2-6], Okl. Const., supra, is not intended as a limitation upon the legislative branch of the government where the legislation involved deals with rightful subjects of legislation. Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, supra. We further hold that

¶36 It would be incorrect to assume that a candidate is wholly without any remedy in contesting primary and run-off elections. In

¶37 Although the time for holding the general election has passed, we are of the opinion and hold that the district court had no jurisdiction to try and determine the issues raised by plaintiffs in their separate petitions. It follows that it was the statutory duty of the County Election Board to certify to the State Election Board the returns of the Wagoner county election as reflected by its recount, and to include therein the results of their recount of the absentee ballots.

¶38 The orders and judgments of the district court are reversed and vacated as being void for lack of jurisdiction of the district court to make them.

¶39 JOHNSON, C.J., WILLIAMS, V.C.J. and WELCH, DAVISON, JACKSON and CARLILE, JJ., concur.

¶40 CORN, HALLEY and BLACKBIRD, JJ., dissent.

¶41 The court acknowledges the aid of the amicus curiae brief of Hardin Ballard, attorney, Purcell, Oklahoma, former Senator and author of Senate Bill No. 139, S.L. 1931, pp. 97, 101,

DAVISON, Justice (specially concurring).

¶1 I fully agree with the majority opinion. I feel, however, that I should elaborate on the right of the Legislature to provide for proper election laws and then to discuss the provisions of the laws promulgated by that body.

¶2 With reference to elections the Oklahoma Constitution specifically provides (Emphasis ours):

Art. 3, § 4 [3-4]: "The Legislature shall enact laws
creating an election board, * * * and shall provide
the time and manner of holding and conducting all
elections; * * *".

Art. 3, § 5 [3-5]: "The Legislature shall enact laws
providing for a mandatory primary system, which
shall provide for a nomination of all candidates in
all elections for State, District, County, and
municipal officers, for all political parties,
including United States Senators; * * *."

Art. 3, § 6 [3-6]: "In all elections by the people the
vote shall be by ballot and the Legislature shall
provide the kind of ticket or ballot to be used and
make all such other regulations as may be necessary
to detect and punish fraud, and preserve the purity
of the ballot; * * *".

¶3 These provisions of the Constitution make it perfectly plain that it is the Legislature that has the power to make laws to preserve the purity of the ballot.

¶4 The only statutory law now in effect with reference to a run-off primary election contest, or recount, is

¶5 Prior to 1925 a defeated candidate had two remedies for contesting an election. His first remedy was a recount of the ballots. If he lost the primary election on recount he had a remedy by an action in quo warranto to try title to the nomination. Whitaker v. State ex rel. Pierce, 1916, 58 Okl. 672, 160 P. 890.

¶6 In 1925 the right to contest a primary election by quo warranto was abolished by the Legislature. Senate Bill No. 395, S.L. 1925, page 145. That provision of the law is still in effect and is found in Title

¶7 In Dabney v. Hooker, 121 Okl. 193, 249 P. 381, in a civil action in the district court of Oklahoma County, to try title to the nomination for Attorney General, this court recognized that the old remedy of quo warranto in primary elections had been abolished in 1925 and held in the first paragraph of the syllabus as follows:

"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 specifically provided for by statute."

 
¶8 In the body of the opinion it was said:

"Is there any authority, statutory or otherwise,
which provides for a contest of this nature? At
common law there existed no right to contest in the
courts the title to the nomination of a political
party for public office. Jarman v. Mason, 102 Okl.
278, 229 P. 459; Landsdon v. State Board, 18 Idaho
596, 111 P. 133; State ex rel. Hatfield v.
Carrington, 194 Iowa 785, 190 N.W. 390; Bradley v.
Board [of State Canvassers], 154 Mich. 274, 117 N.W.
649; State v. Woodruff, 68 N.J.L. 294, 52 A. 294. * * *

"* * * and, as the law now stands, there is no
provision of the statutes 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 virtue of some statute authorizing
the same.

"The argument is advanced that to safeguard against
fraud and corruption in primary elections a civil
action should be allowed by this court to contest
such elections. With this we do not agree. This is
not a legislative but a judicial body. We are
concerned only with the law as adopted by the
lawmakers. It is apparent that the Legislature, at
the time of the passage of the amendatory act of
April 9, 1925, intended to abolish the plenary action
for contest of primary elections when they provided
`* * * that this act shall not apply to primary
election.' At the time of the passage of said act,
the Legislature * * * knew that it was inherently
impossible to try by civil action a contest of a
primary election between the date of such primary
election and the general election, and for that
reason, no doubt, limited the defeated candidate in a
primary election to a summary proceeding by recount
and mandamus to complete such recount as provided by
statute. * * * They may have realized that it would
be practically impossible for a defeated candidate in
a primary election to institute an action to contest
a primary election, try the same in the district
court, and under the rules of procedure, grant the
defeated party in such suit the right to appeal in
the time intervening between the primary election and
the general election. They also had knowledge, no
doubt, that under our system of jurisprudence the
question would become moot after the general
election. * * *

"It has also been argued that a defeated candidate,
who makes charges of fraud and corruption, should at
least have an opportunity to establish the same by
proof. Be that as it may there is no statutory law
authorizing a contest of a primary election such as
was instituted in the district court of Oklahoma
county."

¶9 The rule of law established in the Dabney and Jarman cases was followed in Looney v. County Election Board of Seminole County, 145 Okl. 25, 291 P. 554, 71 A.L.R. 420.

 
¶10 In 1931, the Legislature passed Senate Bill 139, now

"* * * 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. 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."

¶11 These statutory provisions were quoted and relied upon in plaintiff-in-error's brief, and no contention was raised in defendant-in-error's brief as to the constitutionality of either of said statutes or any part thereof.

¶12 The Legislature realizing that for a court to try a primary contest was, as pointed out in Dabney v. Hooker, supra, impractical, provided a procedure it thought would adequately protect the rights of all candidates. The recount contest provision provided that the recount should be conducted before the election board sitting in conjunction with the district judge. The Legislature no doubt thought such a remedy would fully and adequately protect the legal rights of all candidates. As a general rule, at least, the wisdom of the Legislature in this respect has been justified. For example in 1950 there were 471,773 ballots cast for the two gubernatorial candidates in the run-off primary. A state wide recount was granted covering all precinct votes and absentee ballots before the 77 different county election boards sitting in conjunction with a district judge which resulted in a net change of only 49 votes. This result spoke highly of the honesty, integrity, efficiency and impartiality of election boards throughout the 77 counties of the State. This recount was completed without delay. Had courts been permitted to assume jurisdiction after the recount it would have been possible that litigation might have been commenced in each of the 77 counties of the State. Such a situation, considering time necessary to complete the litigation in each county, and the time necessary for appeal and determination of the appeals in this court could have resulted in the name of neither candidate being placed on the general election ballot. Such would have created a chaotic condition. Such situations were no doubt foreseen by the Legislature causing the adoption of Sec. 391, supra.

¶13 The confusion in the present case has resulted from the legality or illegality of only absentee ballots. Perhaps the Legislature in enacting the "Absentee Ballot Law" was too liberal in allowing a legal voter to vote an absentee ballot, or too liberal in the procedure leading up to the casting of such a ballot. If this be so the Legislature, no doubt, will make more rigid requirements for legal voters desiring to vote such a ballot.

¶14 This court has consistently adhered to the rule announced in the cases cited herein, supra, for a period of thirty years. I think it is the only workable rule. In any event, as the instant case demonstrates, it would be manifestly impossible for this court to rule on a multiplicity of election appeals in time to adjudicate the matters before the run-off and general elections.

WILLIAMS, Vice Chief Justice (concurring specially).

¶1 Although I could not agree with the former majority opinion herein, I feel it my duty to concur in the present one. In my view, the court now in effect holds that Mr. Payne was entitled to present his case to the Wagoner County Election Board sitting in conjunction with the District Judge upon occasion of the recount proceedings. That body and judge had the authority and duty to determine the legality of ballots duly challenged.

¶2 True, the people of Oklahoma have said in our Constitution, Art. II, § 6: "The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; * * *." Note absence of reference to political rights.

¶3 And further, Art. III, § 6: "* * * (T)he Legislature shall * * * make all such other regulations as may be necessary to detect and punish fraud, and preserve the purity of the ballot; * * *."

¶4 And, Art. III, § 7: "The election shall be free and equal * * *."

¶5 But they have also said, Art. III, § 4: "The Legislature * * * shall provide the time and manner of holding and conducting all elections; * * *." (Emphasis added.)

¶6 We are not here called upon to decide the constitutionality of

¶7 I believe he was entitled in his recount proceeding to assert the alleged illegality of certain absentee ballots, notwithstanding the decision of this court in Brickell v. State Election Board, 203 Okl. 362, 221 P.2d 785.

¶8 After denial of such right by the Board and District Judge, in aid of securing that relief he would have been entitled to the issuance by this court of proper writ under our authority of superintending control. Const. Art. VII, § 2; Looney v. County Election Board of Seminole County, 146 Okl. 207, 293 P. 1056.

¶9 I therefore concur specially in the majority opinion.

WELCH, Justice (specially concurring).

¶1 In concurring the fact should be emphasized that in the case there was 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

"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."

¶2 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, and such decision shall be 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."

¶3 Thus, in addition to

 
¶4 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 ballots 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.

¶5 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.

¶6 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.

¶7 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 [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.

¶8 In support of the majority opinion construction of the applicable laws, it should be 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.

¶9 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.

¶10 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.

¶11 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.

¶12 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.

¶13 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 were illegal for the reasons observed and set out by the trial court, then surely the recount hearing would have developed such illegalities.

¶14 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.

BLACKBIRD, Justice (dissenting).

¶1 I cannot agree with the majority opinion. It infers, without quoting directly the allegations of the plaintiff, Plunkett, that said plaintiff based his cause of action, as a qualified voter of Wagoner County, upon the claim that unless the defendant, Wagoner County Election Board, was restrained, or enjoined, from certifying to its previous tabulation of votes for State Senator in the primary election involved; and the evidence of illegal voting heard by the Court; and the votes, found to be illegal, decreed to be null and void and prohibited from being counted, then his, and other legal votes, cast for Candidate Payne would be cancelled and nullified by illegal ones cast for Candidate Russell. Plainly his position that his constitutional right, and that of other qualified voters who voted for Payne, to a free and equal election, under Art. III, § 7, of the Oklahoma Constitution was violated - if illegal votes cast for Russell were given equal weight and value with theirs - is not a claim of the "total invalidity" of an election (referred to in the majority's quotation from Garrett v. London, 107 Okl. 72, 229 P. 1074; nor is it the traditional and ordinary basis (or cause of action) for a candidate's proceeding for a recount. Nor is it the usual basis for an action to try title to an office. Certainly the constitutional right Plunkett asserts is not one that is peculiar, and exclusive, to him, but neither does he claim any interest in the office involved. (As far as his petition shows, he is not an aspirant to any office.) The emphasized portion of my last statement is the crux of the distinction between this case and Garrett v. London, supra, on which the majority relies for its holding (first syllabus) that "A qualified elector * * * is not a proper party plaintiff * * *" in the present action. A reading of the complete opinion in Garrett v. London, supra, will show beyond doubt, that it is not analogous to the present case, either in facts or in principles of law applied therein. The difference in the two cases is briefly indicated by the following excerpts which include that portion out of whose context, the majority's quotation was extracted. At page 74 of 107 Okl., at page 1076 of 229 P., reads in part, as follows:

"* * * it is claimed that a number of qualified
voters were illegally prevented from casting their
ballots; that these electors, if permitted to vote,
would have voted for plaintiff; that these votes so
offered, would have been sufficient to overcome
defendant's majority, and cause plaintiff to have
sufficient votes to entitle him to the nomination.
* * *" (Emphasis ours.)

And at page 76 of 107 Okl., at page 1078 of 229 P., from which the majority's quotation is taken, it is said:

"Here again, the title to the office was claimed
by the party who began the action. We are cited to no
case within this jurisdiction, where a person not
claiming title to the office or some peculiar
interest therein has been permitted in his own name
to prosecute an action to oust the encumbent of the
office. The statutes giving this right of action were
intended to protect the interest of one claiming the
office; but it nowhere appears that it was intended
that an individual should be substituted [for] the
representative of the public at large to prosecute an
action claiming the total invalidity of an
election." (Emphasis ours.)

¶2 Nor does the majority opinion's reference to actions in the nature of quo warranto and statutes concerning them, such as Tit.

"The right to vote in this state is granted, and
the qualifications of voters are prescribed in our
Constitution, article 2, § 1 [2-1]. The status of the
voter, if we must call it that, is established by
the constitution, and not by legislative
enactment. The legislature has prescribed certain
regulations by the registration laws, which must be
followed before the voter having the constitutional
qualifications can exercise his franchise. But
registration is not an element which determines the
status of a voter; he may be a qualified voter,
though unable to vote in a particular election
because improperly registered. [Citing cases.]"

In State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041, 1046, 35 L.R.A., N.S., 356, the court said:

"So the right to vote is one reserved by the people
to members of a class and as so reserved, guaranteed
by the declaration of rights and by section 1, art.
3, of the Constitution. It has an element other than
that of mere privilege. It is guaranteed both by the
Bill of Rights, and the exclusive instrument of
voting power contained in Section 1, art. 3, of the
Constitution, and by the fundamentally declared
purpose of government; and the express and implied
inhibitions of class legislation, as well. Such
declared purpose and the declaration of rights, so
far as they go, and the equality clauses, -
constitute inhibitions of legislative interference by
implication, and with quite as much efficiency as
would express limitations, as this court has often
held. [Citing cases.]

"Thus is given the right to vote a dignity not less
than any other of many fundamental rights."

In State v. Staten, 46 Tenn. 233, it was held:

"The elective franchise is a right which the law
protects and enforces, as jealously as it does
property in chattels or lands. It matters not by what
name it is designated - the right to vote, the
elective franchise, or privilege of the elective
franchise - the person, who, under the Constitution
and laws of the State, is entitled to it, has a
property in it, which the law maintains and
vindicates as vigorously as it does any right of any
kind, which men may have and enjoy."

The next question is: Of what does this right, guaranteed by our Constitution, consist? The answer is found in Ladd v. Holmes, 40 Or. 167, 66 P. 714, 91 Am.St. Rep. 457, one of the most cited and followed cases on this subject. There the court said, 66 P. at page 718:

"Article 2, § 1 [2-1], provides that all elections shall
be free and equal. To be free means that a voter
shall be left in the untrammeled exercise, whether by
civil or military authority, of his right or
privilege. * * * The word `equal' has a different
signification. Every elector has the right to have
his vote count for all it is worth, in proportion
to the whole number of qualified electors desiring to
exercise their privilege. Now, if persons not
legitimately entitled to vote are permitted to do so,
the legal voter is denied his adequate, proportionate
share of influence, and the result is that the
election, as to him, is unequal; that is, he is
denied the equal influence to which he is entitled
with all other qualified electors. [Citing cases.] So
that the term `free' and `equal,' used as they are,
correlatively, signify that the elections shall not
only be open and untrammeled to all persons endowed
with the elective franchise, but shall be closed to
all not in the enjoyment of such privilege under the
constitution." (Emphasis ours.)

See also People ex rel. Lindstrand v. Emmerson, 333 Ill. 606, 165 N.E. 217, 62 A.L.R. 912, and Littlejohn v. People, 52 Colo. 217, 121 P. 159, 161, Ann.Cas. 1913D, 610. Among the jurisdictions in which the above-quoted Oregon case has been cited and quoted with approval, is our own. The view that our constitutional guarantee of "free and equal" elections means that no impediment or restraint of any character, either direct or indirect, shall be placed upon the voter, obtained the approval of this Court in Richardson v. Gregg, 144 Okl. 102, 290 P. 190, 193, citing Ex parte Wilson, 7 Okl.Cr. 610, 125 P. 739.

¶3 Granting, but not conceding, that the principal question involved in the ordinary election contest is a political one, and that the so-called "right" to public office sought to be enforced therein is not such a "property right" as a court of equity will enforce (as the authorities quoted in the majority opinion indicate) the right Plunkett asserted, and the questions affecting it, whose determination he sought in the present action, was not such a right, or question. And, it was no insurmountable obstacle to the trial court's assumption of jurisdiction, that no statute exists specifically authorizing such an action. While it is true that Art. III, § 6, supra, directs that the Legislature, among other things, "make all such other regulations as may be necessary to * * * preserve the purity of the ballot * * *", and said section, in so far as it contemplated that the Legislature enact laws to carry out its provisions, cannot be said to be self-executing, 16 C.J.S., Constitutional Law, § 53, Plunkett's right to have his vote given all the weight and value a legal vote was entitled to, under the "free and equal" provision, sec. 7, supra, is not a right which needs defining by statute to make it enforcible, as plainly shown by the foregoing authorities. It is a fundamental right, guaranteed by the Constitution to all qualified voters; and, as such, needs no statute to define either it, or an injury to it. In addition to the foregoing authorities, see 11 Am.Jur., Constitutional Law, §§ 73-76, inclusive. If said section not be construed as self-executing, then the Legislature, by its non-action, could emasculate it. Ibid, sec. 75. But, the courts in upholding causes of action based on said right, have, in effect, held to the contrary. And, said right is just as alive and effectual in a primary election, as when involved in a general election. In the fourth syllabus of Craig v. Bond, 160 Okl. 34, 15 P.2d 1014, 1015, this court reiterated the following syllabus from Dove v. Oglesby, 114 Okl. 144, 244 P. 798:

"`Under our scheme or plan for holding elections
and exercising the right of suffrage as provided in
article 3 of the Constitution, primary elections are
made a component element of the right of suffrage.
They are made a necessary prerequisite to a general
or final election, and the free exercise of the right
of suffrage is, just as necessary in primary
elections as in general elections, and hence, the
provisions in section 7, art. 3 of the Constitution
apply in primary elections the same as in general
elections.'"

In this connection, see also People ex rel. Breckon v. Board of Election Com'rs of Chicago, 221 Ill. 9, 77 N.E. 321, 323, Ann. Cas. 562. After quoting extensively from Ladd v. Holmes, supra, the Court in the Wilson case, supra, said:

"The election provisions of the Constitution and
the mandatory primary election law were intended for
the protection of the party, and of the citizen in
his rights as a member of a political party, and
guarantee to him the right to express, through his
ballot, at a primary election his wish as to the
conduct of the affairs of his own party, and his
preference in the selection of the candidates for
office within his party. If this was not so, an
elector participating in a primary election would be
powerless, and without any method or means of
protecting this right conferred upon him by the
Constitution and law."

Our Constitution, in its Art. III, § 6, by use of the word "shall" enjoins upon the Legislature the mandatory duty, see State ex rel. Ogden v. Hunt, (Okl.) 286 P.2d 1088, of making "all such * * * regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot; * * *." In its Art. II, § 6, said document says:

"The courts of justice of the State shall be open
to every person, and speedy and certain remedy
afforded for every wrong * * *."

In its Art. VII, § 10, said document invests district courts with "original jurisdiction in all cases, civil and criminal, except where exclusive jurisdiction is by this Constitution, or by law, conferred on some other court * * *". Note that the last cited article and section says "some other court", and does not make the vesting of jurisdiction in an election board, an exception to the matters over which the district courts are therein given jurisdiction. There is nothing about the prescriptions in Art. III, §§ 4, 5, and 6 (describing what the Legislature "shall" do with reference to holding elections) which relieves that body from discharging its duty under the last portion of section 6, supra, to "preserve the purity of the ballot", and to protect qualified electors' right of suffrage in "free and equal" elections, under Art. III, § 7, supra. Nor do the cited portions of Arts. II and III relieve the district courts of our state of the duty enjoined upon them by Art. II, § 6, to afford a remedy for every wrong; or that divests said courts of the power to do so, vested in them by Art. VII, § 10, of jurisdiction in all cases except those wherein jurisdiction has been "conferred upon some other court * * *". In this connection, I find no fault in the construction placed on § 6, Art. II, supra, by Adams v. Iten Biscuit Co., 63 Okl. 52, 162 P. 938, 942, (cited in the majority) that it is a "mandate to the judiciary and was not intended as a limitation upon the" Legislature. But that answers no question in this case. Here, the Legislature, as all must recognize, has not attempted to exceed such "limitation" in any way; unless Tit.

"Neither do we think it (Art. II, sec. 6) was
intended to prevent a particular remedy for given
causes of action in certain courts of the state, nor
was it intended to deprive the Legislature of the
power to abolish remedies for future accruing causes
of action (where not otherwise specifically
prohibited), or to create new remedies for other
wrongs as in its wisdom it might determine."

I can agree with that view, but I say that if, by sec. 391, supra, the Legislature intended to give anyone a remedy for a wrong such as Plunkett asserted in this case, then such remedy must be complete, and include the right to a judicial review, or it takes from such a complainant thereunder, a constitutional right which is "otherwise prohibited", i.e., by the due process clause of the Oklahoma Constitution, Art. II, § 7. In this connection see State v. Staten, and, 18 Am.Jur., Sec. 44, supra. The Workmen's Compensation Act,

¶4 In its statement of the facts, the majority opinion purports to describe certain findings of the trial court with reference to the manner in which the absentee ballots, and the affidavits therefor, were executed and cast and filled out; and it mentions said court's finding that there was no fraudulent conspiracy to secure illegal votes. These are matters correctly pertaining only to the merits of the case, and have no place in an opinion on the preliminary question of the trial court's jurisdiction to try the case. However, since the majority opinion mentions them, I think it appropriate to set forth just what the trial court's findings were, on these matters. I therefore quote them verbatim as follows:

"IX.

"Several hundred of the absentee ballots cast in
Wagoner County, Oklahoma, in the Senatorial Run-Off
Primary election of July 24, 1956, were cast under
onr or more of the following circumstances:

"1. Application was not made by the elector either
in person or by mail to the Secretary of the County
Election Board, or done so by an agent authorized by
law.

"2. Persons voted by absentee ballot who were not
absent from the County and Election precinct where
they reside on election day, and who had no intention
of being so absent at the time the application was
made, and who were not suffering from any sickness or
physical disability.

"3. Persons voted absentee ballots for a variety of
reasons of personal convenience such as, "busy
plowing," "fishing", "no baby sitter", "wished to
avoid the hot sun", "went to another part of the
county to work for a candidate on election day", "had
sick people at home they couldn't leave", or voted
"because spouse was away and voted absentee."

 
"4. Persons who were incapacitated by sickness or
physical disability were issued absentee ballots well
in advance of the date of the election, without
designating an agent in writing to procure the same
election day.

"5. The absentee elector did not make and subscribe
to an affidavit before any notary public or officer
or person authorized to administer oaths.

"6. The absentee elector cast a ballot not only for
himself but for other members of the family.

"7. Some person other than the absentee elector
either marked the ballot or signed the affidavit, or
the elector handed his ballot to an agent unsealed.

"X.

"There were more than enough absentee ballots cast
without complying with the statutory requirements to
change the result of the Senatorial Run-Off Primary
Election of July 24, 1956, between the Plaintiff and
Intervenor, but it is not possible to determine with
mathmatical certainty the number of ballots so
cast.

"XI.

"The evidence shows a concerted campaign on the
part of numbers of persons interested in the
re-election of Senator John W. Russell to secure
absentee ballots in his behalf. The weight of the
evidence does not indicate that these persons were
conspiring to secure fraudulent or illegal votes by
corrupt or illegal methods, but it is equally clear
that ignorance, carelessness, and a desire to get
as many as possible, for their candidate, caused
them to violate in wholesale fashion the provisions
of the Oklahoma Statutes. Among both agents who
supplied applications and voters who voted absentee
ballots personal convenience was the only test of the
right to cast such ballots." (Emphasis ours.)

Among the trial court's conclusions of law was the following:

"When there are widespread and flagrant violations
of the mandatory provisions of the absentee balloting
laws on the part of hundreds of voters in a run-off
primary election, and the ballots so cast are illegal
ballots and it is not possible to accurately
separate the legal from the illegal and determine
within any narrow margin the true vote for each
candidate, the Court may reject the ballot returns
from the entire absentee ballot box and should do
so." (Emphasis ours.)

The majority opinion does not discuss the validity of such a conclusion in the present case, under the rule dealt with in the Annotations at 155 A.L.R. 677, at pages 682, et seq.; and, of course, that is not called for, if the trial court had no jurisdiction of the case.

¶5 However, I think said court did have jurisdiction. In my opinion, the Legislature, by its enactment of Tit.

"The general rule is that an unconstitutional
statute, though having the form and name of law, is
in reality no law, but is wholly void, and in legal
contemplation is as inoperative as if it had never
been passed. It imposes no duties, confers no rights,
bestows no power or authority on anyone, affords no
protection and justifies no acts performed under it."
- Town of Medford ex rel. Fuss v. Early, 194 Okl.
566, 153 P.2d 633, 634.

I think the majority opinion should have affirmed the trial court's jurisdiction, and then (and only then), it would have been proper and just to have considered the record, and the substantive law applicable to the evidence, and to have determined therein whether the trial court had adjudged this case correctly on its merits.

¶6 In his "specially concurring" opinion, Justice Williams says he believes Payne "was entitled in his recount proceedings to assert the alleged illegality of certain absentee ballots, notwithstanding the decision of this court in" the Brickell case. This individual view is the only apparent basis for said opinion's preceding representation that: "Plaintiff Payne apparently abandoned his remedy under that provision of law * * *". If, by the indefinite term "certain absentee ballots", Justice Williams is referring to the absentee ballots that appeared on their face to be valid, but were not (under the provisions of the Absentee Ballot Law) then his statement concerns a matter which Payne, as well as the Wagoner County Election Board, knew could not be inquired into under the unequivocal statement of our views on the subject in the Brickell case. And, I reiterate that the Wagoner County Election Board did not attempt to inquire into, or rule upon, the validity of those ballots. If the majority of this court is now of the opinion that, under the proper interpretation of Section 391, supra, the Election Board could, and should, have received evidence and ruled upon such matters, then it should overrule the incorrect pronouncement made in the Brickell case, and clarify "the extent and scope" of such recounts which, the majority opinion expressly, and the Williams' opinion tacitly admit "is not entirely clear * * *".

¶7 If there had occurred in this case, what Justice Williams says could have occurred, and, after the Election Board's decision, Payne, as suggested by Justice Williams, had applied to this court for the "proper writ", then he would have been confronted (as he was in this case) by Section 391's unconstitutional prohibition against court review. This points up the unreal position, revealed in both the majority opinion and the Williams' opinion, that the constitutionality of said section is not an issue in this case. As hereinbefore mentioned, the trial court specifically held that in so far as said section purported to provide plaintiffs a remedy, to the exclusion of court jurisdiction, it was unconstitutional and void. How can this court correctly reverse said judgment and determine that said section did provide them a remedy, despite its provision excluding court review, without determining the constitutionality of said provision? To state the question, is to answer it - in the negative! I have hereinbefore shown that said section is unconstitutional. Neither the majority, nor any of the specially concurring opinions, directly question or answer, what I have said about its unconstitutionality. They merely say that that is not an issue, or that said section furnishes a remedy.

¶8 It is obvious from an examination of the other special concurring opinions filed in this case, that certain matters referred to therein, other than those I have mentioned, if pertinent at all, would be so, only upon consideration of the case on its merits. Nothing said therein gives the majority opinion any support of substance on the question of jurisdiction. The "time element", or considerations of expediency, furnish no valid ground for denying litigants' fundamental rights. See State ex rel. McGrael v. Phelps, supra. As the majority opinion undertakes no decision on the merits of the case, the individual views expressed in the "concurring" opinions, warrant no further attention.

¶9 In accord with the views herein expressed, I dissent.

HALLEY, Justice (dissenting).

¶1 I concur in the views expressed by Mr. Justice Blackbird and only wish to add a word to what has been said by him. The majority opinion confesses weakness that does not exist under our Constitution. In my opinion the evidence is overwhelming, and the trial court found, that there were enough illegal absentee votes cast in Wagoner County to change the result of the primary election and when voided Payne would have had a majority. No Legislature has the right to take away from this Court the right to correct wrongs when they occur regardless of the area of the life in which they may arise. We are clothed with the power under our Constitution to see that all elections are conducted fairly. I dissent.