City of Tecumseh v. City of Shawnee ( 1931 )

I cannot agree with the majority decision.

The self-executing provision of our Constitution governs the conduct of an election held for the relocation of a county seat. That provision is section 7 of art. 17, Constitution of Oklahoma:

"Any person or corporation offering money or other thing of value, either directly or indirectly, for the purpose of influencing any voter for or against any competing town in such election, shall be deemed guilty of bribery."

The terms of the constitutional provision are more extensive than the statutory inhibition against "offering, giving or accepting a bribe, a reward, a benefit, or advantage, or anything of value, present or future, directly or indirectly,intended to influence the vote of the person to whom it isgiven or offered." Section 6214, C. O. S 1921. It will be noted that the Constitution condemns "the purpose of influencing any voter," whereas the statute condemns the purpose to "influence the vote of the person to whom it is given or offered." Under the statute all votes obtained by the giving or offering of anything of value to the electors therefor are to be rejected. City of Blackwell v. City of Newkirk, 31 Okla. 304,121 P. 260, Ann. Cas. 1913E, 441, 232 U.S. 718, 58 L.Ed. 813, 34 Sup. Ct. 479.

By reason of the constitutional provision applying to county seat elections, where "any person" either directly or indirectly 'offers or gives" (certainly the greater includes the lesser) anything of value to influence "any voter" (the object here is personal and animate — not as in the statute, "the vote" moreover the object here is general, not specific as in the statute, "the vote of the person to whom it is given"), the result is bribery.

It will be noted that no penalty or punishment is provided within or elsewhere for violation of the constitutional provision. The result is that such bribery has the effect that follows from the law of the land; that effect is, and always has been from time long prior to the adoption of the Constitution, the nullification of votes so influenced.

"As a general rule an election which is materially influenced by bribery is void. * * * However, an election will not be set aside because of sporadic instances of bribery with which candidates are not connected." 20 C. J. 187.

At common law, "bribery," as defined by Bishop, is "the voluntary giving or receiving of anything of value in corrupt payment for an official act done, or to be done." State v. Meysenburg, 171 Mo. 1, 71 S.W. 229.

Now, by virtue of our Constitution, the giving of money to influence any voter for or against any competing town is bribery. In other words, the payment for the influence of a voter in such an election is bribery.

Advocates of Shawnee deny and defend and urge upon us (successfully as to the majority) that, inasmuch as those hired were "already for Shawnee," there was no changing over from one town to the other in the attitude of the citizens employed, and consequently there was no bribery.

That defense to a bare minority of us is rank sophistry. We illustrate: In the consideration of this case by this court a number of the Justices are inclined as a matter of law to be favorable to Tecumseh. These Justices may be said to be for Tecumseh. Their judgment will incline them to cast their vote for Tecumseh in this decision. They will argue much or little with their associates upon Tecumseh's side of this case. Suppose that surreptitiously the fact of their inclination was ascertained by partisans for Tecumseh and these partisans would raise a fund, offer and pay the same to the minority Justices for influence and extra exertions by way of argument and for research briefs, to be presented to some one of the bare majority of the Justices now inclined, under their liberal view, for Shawnee, so doing in hope of finally securing a quorum of votes of this court and a favorable decision. Suppose that the decision is rendered accordingly, and subsequently the recipients of the fund are called upon in a proceeding brought for that purpose to answer for bribery. They deny and defend — deny that their conduct constituted bribery and defend on the ground that, although they received the money for the exertion of their influence, they were not bribed, for they were not changed over. Query: Would such facts constitute bribery? We think so. Query: Would the votes cast by those so hired to exert their influence be legal? No court would hold affirmatively. This is an extreme analogy, it is true, and not likely to happen, but it is within the principle, and being so it tests the correctness of the rule — it presents it naked and undisguised, free from those softening circumstances which in less strong cases veil its innate deformity, but that at sometime or other, on proper occasion, would produce the most baneful effects on society.

Those softening circumstances about which we speak were long ago considered by this court in a county seat election case wherein it was held that the citizens there received the money "ostensibly for their day's work, but really for their votes." Incorporated Town of Ryan v. Town of Waurika, 29 Okla. 655,119 P. 220.

So, too, this court has previously considered and condemned the "paying to supposed leaders considerable sums of money for their influence and support" in an action between these same parties and upon the same subject-matter. City of Tecumseh v. City of Shawnee, 33 Okla. 494, 126 P. 440.

It is the view of the minority that the decision herein permits the employment of citizens of a county without limit as to the number employed and without limit as to the amount paid each for the exertion of their influence for or against a competing town in such an election. That, we think, was condemned by the highest of mandates and transmitted for our rule and guide by the most solemn of instruments, the Constitution by which we are governed.

"It is not easy to conceive," says the Canadian court (V. Can. Sup. Ct. Rep. 133), "how a much more general and effective system of corruption could be established." Employment of men — 30 in number — by a partisan to guard the peace on election day was there said to be "colorable, or as a cloak for bribery and undue influence," and it was observed, "if 30 men can be so paid, why not more?" So say we, as applied to the instant case. If 140 men, admittedly hired by Shawnee to exert their influence for the one town and against the other, can be lawfully hired for influence in the election, why should not any candidate in the future, if possessed of a fat purse, simply employ the whole electorate or the required majority thereof? Or, better yet, why not auction off the office or coveted honor as spoils, as was once done in New Hampshire?

When it shall be seen that elections are to be simply the measure of the size of the candidate's purses, it will be easier for expectant, hopeful and poverty-stricken citizens to answer affirmatively such inquiries as propounded by Mr. Ingram to these 233 payees, testing whether they were already for the side upon which the inquirer was permitting the money to flow.

Thus, but for the wrongfulness of the act, two-thirds of the electorate could be hired, and when so hired, can we as judges say the merits of the issue in the campaign actuated them in casting their vote, or should we say the employment motivated them? The rule of law is, we cannot know the independent will of electors bribed.

"Those who believe in the perpetuity of government by the people must rest their hopes in the virtue of the people, and unless this vitalizing principle is unshackled in its exercise, such government cannot exist. * * *" Orr v. Kevil, 124 Ky. 720.

"It is, therefore, of highest importance that the courts should scan the conduct of elections with deep interest and jealous care and enforce with vigor the laws provided for discouraging fraud and violence," Id.

" Whenever elections are not free and equal, the democratic principle is dead, and republican form of government will exist only in name. A people may lose their liberty while retaining the name and form of democracy. The freedom of republican Rome was lost in the despotism of the empire, when, by law, it was death even to suggest a return to monarchy." Id.

In the case at bar about $9,000 of the fund in the hands of the Shawnee committee was paid to voters of Pottawatomie county geographically located in almost every precinct of the county. These voters were selected by reason of their leadership and influence. Numerically they were far in excess of the number necessary to change the result of the election. That number was seventy-four and one-third. The calculation follows:

Tecumseh 6,744 votes. Shawnee 13,757 votes. Mutilated ballots 23 -------------- Total votes cast 20,524 2/3 votes required for Shawnee under sec. 6, art. 17, Const. 13,682 2/3.

For authority of this calculation see Inc. Town of Bristow v. Sapulpa, 33 Okla. 484, 126 P. 446.

In Grove v. Haskell, 34 Okla. 707, 104 P. 56, this court cited with approval a Wisconsin case, State ex rel. Hopkins v. Olin, 23 Wis. 309:

"In our form of government, where the administration of public affairs is regulated by the will of the people, or a majority of them, expressed through the ballot box, the free exercise of the elective franchise by the qualified voters is a matter of the highest importance. The safety and perpetuity of our institutions depend upon this. It is, therefore, particularly important that every voter should be free from any pecuniary influence."

In the former case between these parties it was held: Widespread corruption materially affecting an election, such as an offer of a courthouse and jail building for a period of ten years with only a nominal rent as an inducement to voters; an expenditure of a large sum of money without record or account, showing the portion legitimately and illegitimately expended, and actual bribing of a large number of voters in different parts of the county; the corruption of election officers so that the result of the election is inextricably in doubt and the will of the uncorrupted voters of the county cannot be ascertained — will make void such an election. City of Tecumseh v. City of Shawnee, supra.

I conclude, therefore, that the wrongful use or offer of money to influence voters for or against a county seat contestant, when "so extensive and general throughout the county that it is impracticable, if not impossible, to ascertain the extent thereof, will invalidate such an election.

The purpose of the constitutional restriction was to make such county seat elections a spontaneous expression on the part of voters, whereas by statute no such purpose exists. Section 6119, C. O. S. 1921, et seq., provides the amount of money that can be expended by certain candidates for party nominations. Thereby it is contemplated that in such elections money to a limited amount may be properly expended. Such provisions for primary elections have nothing to do with county seat elections, but by contrast show the purpose of the constitutional provision, which exists to prevent determination of the location of a county seat based upon monetary consideration flowing to the electorate participating.

When the constitutional provision heretofore quoted was adopted, no doubt the framers of the instrument had in mind just such a situation as here appears, otherwise they would not have declared the doing of certain things bribery which in the absence of such a provision would not constitute that offense. Grove v. Haskell, supra.

My view is that the accounting in this case at bar is no better than it was in the former case between Shawnee and Tecumseh, in this, that, for example, payment in such amounts as $25 or $150 in currency to a voter, noted only on a pocket memo, without mention as to date or for what purpose, is in my estimate not much of an accounting. After all, an accounting of a wrongful act does not purge it.

The record establishes the following facts which I set forth as examples of the situation before us:

Approximately 195 names of voters who received money are contained upon a list introduced as exhibit No. 1. Exhibit No. 5 contains another such list. Testimony shows others received payments from the fund.

Mr. Ingram testified that all these persons whose names are shown by exhibit No. 1 were employed and paid "to work for Shawnee and to try to influence voters in its behalf" (R. 19). But he testified further: "Every man I paid any money to told me before I talked to him on the point — I pinned him down on that question — if he was for Shawnee, and they all told me they were, and this — any that was not, I did not hire them." (R. 31.)

Hereinafter is set out some of the testimony in narrative form for the purpose of showing the exact circumstances under which payments were made.

Mr. Scarbrough testified (R. 84) he lived at Tribbey, worked for Shawnee, received $50 from Mr. Ingram for that purpose. He was for Shawnee anyway, spent $20 to hire a car for Shawnee, bought groceries out of the other $30.

Mr. Atchley testified (R. 311) that he lived three miles west of Wanette, lived there seven years, had lived around Wanette 21 years, worked for Shawnee, made arrangements with Mr. Hawk and Mr. Ingram. "A. Well, I offered them my services if they would pay my expenses. They paid me $120. I expect I worked about 15 or 18 days and then longer in piece days. Was paid $5 a day to poll and find out how the people felt about the election. Q. And you were also to use your influence in any way you could reasonably to get votes for Shawnee. That is right, isn't it? A. Yes, sir; if they wanted to, that is right, yes. Q. Well, you talked to persons and you argued Shawnee's case to them, didn't you? A. I think so."

Green Perkins testified (R. 327) he lived at Asher, talked for Shawnee, made arrangements with Mr. Hawk of the committee. "I told him I thought possibly by some of us working we could change a few votes. They gave me $25 to work until the election, from September 8th to December 17th. I talked to people I thought was doubtful." Electioneered with them for Shawnee, tried to persuade them to vote for Shawnee. Got the money from Joe Ingram. Was always for Shawnee.

Mr. Hawk testified (R. 117): Identified exhibit 5 as containing disbursements made by him for Shawnee. He paid out in cash $580.50 to workers for Shawnee; paid King and Trokey $30 to work in Romulus and Moore townships under these arrangements: "Well, go into a community and work for the interest of the campaign which we had on and if necessary hire a man with his car, and hire a man to go out and investigate the individuals and see whether they were for Shawnee or Tecumseh," and to haul voters to the polls. Paid Willis $10 (R. 122); "wanted Mr. Willis to come in so we could check out"; sent him to Burnett township to check the precincts electioneering — he lived there.

Tom C. Waldrep (R. 127) disbursed funds in cash to 15 or 20 people, and received $2, 600 from the fund — retained $1,000 as attorney fee — disbursed $1,600 to 15 or 20 people to work for Shawnee, to electioneer for Shawnee. Spent $700 or $800 to redistrict the county, which he testified is a duty imposed upon the county.

M.O. Banks (R. 142) lived southwest of Tecumseh, worked for Shawnee, made arrangements with Mr. Hawks, received $50, $55. "I was just working, of course, seeing that different parties." "I worked at polls and saw voters there." "Just using my influence as far as I could." Was for Shawnee all of the time.

J.M. Strapp (R. 162) lived nine miles west of Tecumseh, voted in Brenton No. 1, for Shawnee, made arrangements with Ingram and Hawks, received $25 to work for Shawnee — electioneering — got $50 in all.

O.P. Ellis (R. 182) lives at Shawnee, disbursed $1,250 of the fund, hired people to poll districts and to drive cars. "Q. Did you file any statement of who you expended the money to? A. No, sir." But kept notebook.

J.W. Shoemaker (R. 193): R.J. Shoemaker is his brother, Henry Shoemaker is his son, "Me and my brother together received $75 from Mr. Ingram." Worked for Shawnee, used the money for his own purposes — used some of it driving his car around distributing bills.

R.J. Shoemaker got $75, with his brother, used part of it for Shawnee and "part for what I needed."

Grant Ratford lived at Asher (R. 212), voted for Shawnee, worked for Shawnee — received $10. The committee paid it — drove a car.

A.F. Kappas (R. 274) lived 20 miles southwest of Shawnee — got $10 from Shawnee through Mr. Hawks "to go around and see what people thought of it," to work for Shawnee; "what I didn't spend on the car I have still got." Voted for Shawnee.

On p. 14 of defendant's brief appears the following:

"We challenge the record to show that a single voter voted for Shawnee or Tecumseh, by reason of any improper or undue influence, or the unlawful or illegal expenditure of a single dime, or through the influence of any improper motive, or by the use of whisky or other intoxicating liquors."

One of the attorneys whose name appears on the brief wherein the challenge is made is shown by the record to have paid a voter $50 in check as a refund of attorney's fee to go home and get out of the campaign, when before payment the voter was "in sympathy with Tecumseh." That voter voted in Bales township. The voter testifying as to the attorney: "He writ a check for $50." "There was nothing said about me working for Shawnee; no, sir." "There was something said about getting out of the campaign and not working for Tecumseh."

The law provides:

"Bribery of a voter has been defined to be the offering or giving to him of a valuable consideration, either for his vote, or for his forebearance to vote at all." 20 C. J. 187,

The challenger is an attorney capable of drawing the proper conclusion based upon this record.

A typical example of the testimony of voters who received money is as follows (R. 69): Eliza Evans: Lives at Shawnee, was at Maud on day of election, chief of police there, received $150 from Mr. Waldrep to use his influence at Maud for Shawnee. Didn't do much of anything. Prior to the time such arrangements were made with Mr. Waldrep the witness hadn't made up his mind who he was for in the election and doesn't remember which town he voted for at the election. Cross-examination: "Q. This did not have anything to do with your vote or your action in the election, did it? A. It didn't change my vote any."

Bert B. Harmon testified that he lived five miles southwest of Tribbey. Mr. Ingram paid him $25 three or four days before the election at Shawnee headquarters. "Q. Who were you for in the county seat election when the fight first started? A. Well, really at first a little bit in sympathy with Tecumseh, but then I never did declare myself for Tecumseh. Q. Who did you vote for when you voted there that day? A. I voted for Shawnee." On the day of the election this witness drove his car and hauled voters. Cross-examination: "Q. You were for Shawnee before you made the arrangement with Mr. Ingram? A. Oh, yes, yes."

Our Constitution, by section 7, art. 3, provides in part: "The election shall be free and equal."

A similar provision is contained in the Constitutions of California, Colorado, Delaware, Georgia, Illinois, Oregon, Pennsylvania, and in some form in nearly every other state Constitution, the principle having been brought to this country from England. (English Bill of Rights, art. 8). Atwater v. Hossett, 27 Okla. 292, 111 P. 802; City of Pond Creek v. Haskell, 21 Okla. 711, 97 P. 338.

It is essential to the very idea of election that it should be free, hence it is understood that, independent of positive provisions against bribery, whenever a return of an election is "in consequence of an undue influence acquired by that means," the election is void. "The person who gave his vote under such influence being to be considered as if he had not voted at all." State ex rel. Newell v. Purdy, 36 Wis. 213.

In State ex rel. Bell v. Conness (Wis.) 82 N.W. 288, one party paid through a foreman certain persons, who voted, for their loss of time in going to the polls; that court said:

"To permit such an election to, stand requires us to shut our eyes to and excuse practices that ought always to receive the severest condemnation."

Justice Brewer of Kansas well said, in the county seat election case of State v. Elting, 29 Kan. 397:

"The great danger which now lies in the path of free institutions is the use of money in elections, the scope of this healthful doctrine (a vote in consideration of money or value given to a third party is void) should in no manner be limited or abridged by the courts."

And it was further said therein by that eminent jurist:

"When a candidate gives an elector personally money or property, there is a direct attempt to influence his vote by pecuniary considerations. The expectation is that such vote will be controlled, not by the elector's judgment of the fitness of the candidate for the office, but by the pecuniary benefit he has received. In other words, it is money and not judgment which directs the ballot; and so the election turns not on considerations of fitness or public good, but of private gain. Let such be tolerated, and elections will be governed simply by the measure of the size of the candidate's purses. * * * That which is wrong when done directly, is equally wrong when done indirectly."

In the case of Honaker v. Board of Education, 42 W. Va. 170, 32 L. R. A. 413, where a member of a school board received compensation for attending a meeting from a person who was interested in action taken at the meeting, but under strict admonition that the money paid was not to influence the member's vote, but merely to compensate such member for loss of time at the member's store, it was held that the payment amounted to unlawful influence, having the effect of bribery, so as to annul action taken by the aid of such member.

It is a matter of common knowledge that democracies act in groups under the inspiration and direction of leaders. From the dawn of history it is apparent that such is the case, and probabilities are that the future will continue the fact. Political ideas may germinate in the hearts and minds of those composing the great masses, but they come to fruition when leaders give them concrete form. Democracy advances by a process of accretion, but occasionally great leaders arise, having a mystical insight into the purposes, hopes, and aspirations of the people, such as Jefferson or Lincoln, and democracy goes forward by great leaps and bounds, supported by the franchises of a free people. Are we to say an election is free when the leaders are hired for their exertion and expression which motivate the electorate? Or. indeed, are these leaders themselves free when hired and paid to influence others? We think not. State of Wis. ex rel. LaFollette v. Kohler, 69 A. L. R. 348. To influence leaders by the use of money to work for Shawnee is within the constitutional inhibition and just as much to be condemned as the outright purchase of such a leader's vote.

The principle being that such a guardian of the public welfare can not serve two masters at the same time, I conclude, therefore, that under the evidence the campaign committee of Shawnee violated the provisions of section 7, art. 17, Constitution of Oklahoma, by giving money for the purpose of influencing voters of Pottawatomie county for Shawnee and against Tecumseh in said election to the extent that their acts and conduct amounted to unlawful influence and had the effect of bribery; that the use of funds as shown by the evidence did corrupt the electorate to the extent that said election should be held void.

CULLISON and SWINDALL, JJ., and KERR, Special Justice, concur.

Note. — See tinder (5) 4 R. C. L. p. 177; 9 R. C. L. p. 1179.