Guice v. McGehee | Cases | Westlaw

Both sides have filed suggestions of error. For the appellant it is suggested that we ought to render judgment here. We do not think this is well taken, in view of the facts brought to the attention of the court; it being alleged in a motion that the appellant had married and permanently moved from the state. In our opinion, it was not proper to raise this question by motion, but only by plea in bar of the appeal. If the appellant is in fact disqualified from holding the office, she should not maintain the suit in this case, being a contest between claimants to office and not a proceeding by the state to remove from office.

The appellee suggests that the court erred in holding that certain absent ballots were illegal, because no application for such ballots was made by the voter prior to the election, and stating that the only evidence to support that finding of fact is a statement by the registrar of the county, “not any application blanks for absent voter ballots were printed, distributed, or used in the election.” This statement is contained in an exhibit which was to be filed in the case, and which, in the argument of the case, was stated to be missing from the record, and was by agreement of counsel thereafter to be filed. No point was made in the agreement as to what the exhibit should contain. We presume that the exhibit contained what the original record consisted of. It appears that counsel contends that the clerk was only to furnish the list of absentee ballots and not the envelopes and the applications which were required to be used in the voting of absentee ballots. The absentee ballot law requires the application to be made to the clerk in the circuit court, and affidavit made, and the application and ballot to be placed in an envelope and taken by the voter before an officer, and there voted according to statute, and the application and the signature on the envelope to be used in comparing the signature of the voter by the manager at the election. We think the ballots, as used in this connection, mean, not only the printed ticket with the names of the candidates thereon, but the entire machinery necessary to make it a ballot. Furthermore, it was incumbent upon the appellee to show that the ballots were legal ballots, and, as we held in the opinion, the statute must be strictly followed, and the *434 ballots must be applied for in the manner provided in the statute. It took this showing to have the absentee ballots counted, and no harm could come to the appellee by the holding in the opinion that no applications were made for the ballots as required by law, as there was nothing to show that such application was in fact made.

It is further contended by the appellee that the contest here involved was not authorized by law, because it was an election to fill a vacancy in office, and that the court did not have jurisdiction of the subject–matter because the law did not authorize such a contest. We do not think this distinction can be made between a regular election and a special election. The contestants for office are as much interested in securing an office at a special election as at a regular election, and are entitled to have a fair and regular election, and a fair count, and a proper return.