McKEE v. ADAIR COUNTY ELECTION BOARD

Oklahoma Supreme Court1912-11-26No. No. 2272

36 Okla. 258128 P. 294

Summary · law.co

Holding. The court affirmed the denial of the writ of mandamus, holding that election boards possess quasi-judicial discretion to reject improperly certified election returns and that mandamus is not an appropriate remedy where an adequate alternative remedy exists by quo warranto action.

After losing a county commissioner election in November 1910, the petitioner sought a writ of mandamus to compel the Adair County Election Board to canvass returns from two precincts that the board had rejected because they lacked proper certification. The petitioner argued that if those two precincts were counted, he would have won the election. He contended the election board was merely a ministerial body with no discretion to evaluate the authenticity of election returns.

The court rejected the petition, holding that although election boards ordinarily act in a ministerial capacity, they possess quasi-judicial authority to determine whether documents presented to them as election returns are genuine and properly authenticated. Under this authority, the board lawfully refused to count the uncertified returns. The court also noted the record was insufficient to determine whether precinct officials could have corrected the deficiencies after losing custody of the ballots and other election materials. Additionally, the court determined the petitioner had an adequate alternative remedy through a quo warranto action to contest the opponent's right to the office, making mandamus inappropriate.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an election board acts in a ministerial or quasi-judicial capacity when evaluating election returns
Whether an election board may reject uncertified election returns
Whether mandamus is an appropriate remedy to compel canvassing of election returns
Whether the petitioner had an adequate alternative remedy

Procedural posture

The trial court denied the petitioner's petition for a writ of mandamus to compel the county election board to canvass two disputed precincts, and the petitioner appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Opinion by

BREWER, C.

The petitioner alleges that he was legally elected to the office of county commissioner at the general election held November 8, 1910; that the county election board, in pursuance of law, met at the county seat of Adair county for the purpose of receiving and canvassing the election returns for that county, including the Third commissioner’s district; that the election board refused to canvass the returns from two precincts in said commissioner’s district, because the same were not properly certified and authenticated; that, if the two precincts not canvassed had been counted, petitioner would have received a majority of the votes, and would have been entitled to the certificate of "election; that, by refusing to so canvass and count the said two precincts, petitioner was deprived of the election certificate which was issued to his opponent, who, without counting the two precincts, had a majority of the votes; that the precinct election officials of the two uncounted precincts appeared before the county election board, offered to correct, and properly authenticate the returns from those precincts, which was not permitted. Petitioner further alleges that, the county election board being strictly a ministerial body, it had no discretion, right, or authority in law to pass upon the regularity or legality of any of the election returns. Petitioner further alleges that he has no adequate remedy at law, and prays a peremptory writ of mandamus requiring the members of the election board of Adair county to reassemble in the town of Stilwell on a day certain to be named by the court, and that they be required to permit the precinct election officials to properly certify the two uncounted precincts; that such precincts be then canvassed and counted; that they be required to add the count of the two precincts to that of the other precincts already counted,, and to issue a certificate of election to all candidates, which the new canvass so made should show to have been elected in that county, including petitioner, etc. On the hearing the court refused to issue the writ of mandamus as prayed, and the petitioner appeals.

It has been held in the case of State ex rel. Montgomery v. State Election Board, 29 Okla. 31, 116 Pac. 168, that while ordinarily, in the performance of their duties, canvassing boards are merely ministerial officers, yet they have and may exercise a quasi judicial judgment in determining whether the papers received by them and purporting to be returns are in fact genuine and sufficient for the purpose of their action, and that mandamus will not lie to control their judgment when so exercised. Under the doctrine of that case, the county election board of Adair county had the right to reject the returns from the two precincts because they were not certified to and thus authenticated.

The question of their action in not permitting the precinct election officials to make new returns raises a more serious proposition, and, if the court was advised by the record what the deficiency in the returns consisted of, it might be required to reverse this case. But the record is quite meager on this point. It only appears “that said returns were not properly certified to by said election officials, and were not, therefore, properly authenticated.” This is all that either the pleadings or the agreed statement of facts shows. It is not made to- appear that the irregularities were such that the precinct election officials could at the county seat, and after the poll books, ballot boxes, ballots, certificates, and supplies were out of their hands, have made new returns or corrected the old ones accurately and truthfully. This point is of too much importance and far-reaching in its effects to be decided on so meager and imperfect a record.

“The writ of mandamus is a discretionary writ; and where it does not appear that plaintiff has a clear legal right to the thing demanded, and where his claim thereto is substantially doubtful, the denial thereof is not error. (State ex rel. Shepard v. Crouch, 31 Okla. 206, 120 Pac. 915.)

Besides, the contestant in this case had a speedy and ample remedy by an action in the nature of quo warranto to try the title to this office, as has been pointed out by this court in a number of decisions. Roberts v. Marshall, 33 Okla. 716, 127 Pac. 702; Newhouse v. Alexander, 27 Okla. 46, 110 Pac. 1121, 30 L. R. A. (N. S.) 602, Ann. Cas. 1912B, 674. That the object of this proceeding was to have determined petitioner’s right to the certificate of election, and therefore his right to the office, abundantly appears from the petition and prayer, and he should have proceeded to do so under the statute, as is stated in the cases above cited. The case should be affirmed.

By the Court: It is so ordered.