Simpson v. Rimes

Atkinson, J.

(After stating the foregoing facts.) In the quo warranto proceeding the issue was whether the plaintiffs or defendants had the right to the office. The defendants were in office, and the plaintiffs undertook to show a superior right. The defendants were declared elected by the managers. The plaintiffs predicated their claim to the office on the same election, and on the judgment of the ordinary which declared a result in their favor, which was different from that declared by the election managers. In so doing it was insisted that the declaration by the election managers to the effect that the defendants were elected was set aside, and that the judgment of the court of ordinary declaring the plaintiffs to have been elected was conclusive and entitled them to the office. The defendants contended that the ordinary exceeded his power in counting for the plaintiffs votes which were never cast, and basing his judgment thereon, and consequently that the judg *824 ment, in so far that it declared the plaintiffs elected, was void. If the judgment was void, it could not affect the result of the election as declared by the managers. In passing on election contests the ordinary is not clothed with the powers of a court of general jurisdiction, but is limited to the powers expressly conferred upon him by the statute. It is declared in the Civil Code, § 125: "Whenever any contest arises over an election of any constable, municipal officers, or other officers not hereinbefore provided for, the same shall be filed with, heard and determined by the ordinary of the county wherein such contest may arise, under the same rules and regulations as to the mode of procedure as prescribed in contests where commission is issued by the Governor.” This authorizes contests of elections of the character now under consideration to be heard and determined by the ordinary, and, without stating at length the rules or regulations as to the procedure to be employed, provides for the application of those which are prescribed in contests "where commission is issued by the Governor.” These are to be found in the Civil Code, §§ 121-123. In the last section it is declared: "Illegal votes, by the method aforesaid, and otherwise, may be proven by both parties, and if such are proven on both sides, one shall stand against another, and he is elected who has the greatest number of legal votes. All are considered legal not proven to be illegal.” This authorizes the ordinary to inquire into the legality of votes cast on both sides and decide on the legality thereof. But the law declares that "he is elected who has the greatest number of legal votes.” There is no provision whatever for the ordinary to enter into a general consideration of supposed equitable rights or other rights of contestants, and base his decision upon assumptions of how voters would have voted had they been permitted to vote. The judgment of the ordinary shows upon its face, and it is a part of the judgment, that in order to hold that the contestants were elected it was necessary to count as voting for the contestants votes which were never in fact east; thereby showing its invalidity. The judgment of the ordinary being void on its face, the judge erred in giving it effect and ousting the defendants from office.

Judgment reversed.

All the Justices concur.