Territory of Oklahoma Ex Rel. Ray v. Jacobs

'Opinion of tbe court by

Burwell, J.:

This is an action commenced in this .court by the Territory of 'Oklahoma on the relation of Eob-*ert J. Eay against D. A. Jacobs, as city clerk, and Charles Smith and others, who compose the city council of the city of Lawton, to compel the defendants to canvass the returns of •a certain election held in that city on the first Tuesday in April, 1902, at which it is claimed all of the officers of the city were voted for and elected, and the petition alleges that the defendants refused to canvass such returns. The relator, Mr. Eay, was a candidate at the election referred to, for the office of mayor, and it is alleged that he received the highest number of votes of any candidate, and that he was elected to that office. The answer of the defendant sets up as a defense new matter, which is not denied by the relator, and we will therefore treat it as true, and this will enable us to dispose of the case. A portion of the answer alleges:

“That the official ballots of said election were not prepared as by law provided, in that they contained the names •of candidates for the following offices of said city, none of which were to be filled at said election, to-wit: The offices -of mayor, city treasurer, city clerk, city marshal, street commissioner, police judge, city attorney, treasurer of the school board, city assessor, and also two members of school board and 'two members of city council for each ward; and the law provides for only one member of the council and one member of tbe school board to be elected irom each ward at such election..

“Defendants further allege that on the general official' ballot for city officers also appeared the names of candidates-for school officers, contrary to law; that, notwithstanding-.only one member of the city council and one member of the-school board from each ward were to be elected at said election, each political party nominated two candidates for each-office, to-wit: member of the school board and city councilman ; and that if defendants are compelled by the order of this court to canvass the returns of said election as to such offices they will be compelled to discriminate between two candidates in each ward for each of said offices, or else to certify to the election of two different persons for each of said offices-in said ward.”

In the case of Wright v. Jacobs, decided at the> present term of this court, and reported in this volume it was held that the mayor, city clerk, city treasurer, city marshal, street commissioner, police judge,, city attorney, treasurer of' the school board and one councilman and one member of the school board from each ward should hold their respective offices until the spring election of 1903. Therefore the ballot was irregular; but as too whether this would make the election void it is not necessary to decide, as the only returns that could legally be canvassed are' the returns of the election pertaining to the votes cast for the candidates for the positions of one councilman and one member of the school board from each ward, whose terms under the statute expired in the spring of 1902; but even if Mr. Ray could maintain .this action for them, which has been decided in the negative, the petition and the answer also-fail to disclose who these various candidates were, and, although the ballots were not void by reason of' other names- being illegally placed upon them, the court is not sufficiently informed from the pleadings to issue a mandate for the canvass of the returns of election as to these officers who-should have been elected at the annual election in the spring-of 1902.. The term of the present mayor will not expire until, the spring of 1903.

The writ will be denied at the cost of the plaintiff.

Beauchamp, J., absent; all the other Justices concurring.