Turner v. State Election Board , 197 Okla. 153 ( 1946 )

This is an original proceeding filed in this court by John Bunyan Turner seeking a writ of mandamus to require the State Election Board to place his name on the Democratic ballot in the coming primary election as a candidate for Governor.

From the pleadings and oral arguments it appears without serious contradiction that petitioner, on April 22, 1946, filed his notification and declaration of candidacy for Governor with the State Election Board; that on April 27, 1946, Roy J. Turner, who had theretofore and prior to the filing by petitioner filed as a candidate for the same office, filed a protest petition praying that the name of John Bunyan Turner be stricken from the ballot; that on May 1, 1946, Edward M. Box and others filed a protest petition praying that the name of John Bunyan Turner be stricken from the ballot; that on May 14, 1946, the State Election Board convened and called up for hearing the two protest petitions above specified, the protest petition of Roy J. Turner being first called; that when the protest petition of Roy J. Turner was called, petitioner, John Bunyan Turner, as required by law, deposited with the Election Board the sum of $250; that thereupon the petition of Edward M. Box and others was called and the Election Board required an additional deposit of $250 by petitioner, which petitioner refused to make; that petitioner was advised by the Election Board that unless he made such deposit he could not be heard to resist the protest petition of Edward M. Box and others, and that his name would be stricken from the ballot on the protest petition filed by Box. Petitioner thereupon demanded the return of the $250 which he had theretofore deposited in the Roy J. Turner protest, which was by the Election Board denied. In petitioner's brief appears the following:

"Petitioner, on being so ordered that the board would strike his name from the ballot, requested a return of his money, and on refusal, he withdrew."

Petitioner then absented himself from the place of hearing, retiring from the room without indicating whether he would or would not return, returned to his home in a distant part of the state, and apparently abandoned any effort to gain a hearing on the merits of either of the protests before the Election Board. He did not request that the board enter of record the formal order denying him the right to appear and defend said protests; in fact, no such formal or written order appears of record. The State Election Board, after his withdrawal, and after he had absented himself from the hearing, after calling him to appear, proceeded to publicly hear both of said protests on the merits, hearing several witnesses thereon, sustained the same and struck petitioner's name from the ballot, finding that his attempted filing was frivolous, not made in good faith, and was made for the purpose of confusing the voters, and without compliance with 26 O.S. 1941 § 162c[26-162c]. On May 18th he filed in this court his petition for writ of mandamus to compel the Election Board to grant him a hearing on the merits of the protests.

Roy J. Turner has filed in this proceeding a petition in intervention in which he asserts the legality and validity of the action of the State Election Board.

Petitioner contends that the Election Board erroneously construed section 1, chapter 5b, Title 26, Session Laws 1943, p. 91, resulting in arbitrarily denying him a clear legal right to be heard on the merits of said protests. That section provides that if the legality or regularity of a notification and declaration is challenged or objected to on any ground, said objection shall be set forth in a written petition which shall be set for hearing before the Election Board and notice of the date and place of such hearing served upon the candidate against whom the objections are filed. Such petition may be heard without formal pleadings in answer or reply thereto, and the Election Board may summon witnesses and compel their attendance and the production of evidence in a proper case. It further provides that at the time of filing a petition objecting to the candidacy of any cadidate, the petitioners shall deposit with the State Election Board a cash deposit of $250 to defray the expense of the hearing; that should the candidate whose notification and declaration is challenged desire to appear in answer to the challenge or petition in objection, he shall be required, at the time of filing an answer or making his appearance, to make a cash deposit with the Secretary of the Election Board in the same amount as required of the protestant, and that if the protestant is successful at such hearing, his deposit shall be returned to him and the expenses of such hearing paid by the deposit made by the contestee.

The statute contemplates there may be one or more protests, and that a deposit for costs should be made by each person filing a petition of protest, and that upon hearing thereon the various grounds contained in the protest petitions filed shall be heard and determined, at which time the candidate shall make his deposit of $250 in order to defend his candidacy against the protestants. It does not provide for a separate deposit to be made by the candidate for each protest petition so filed against him. It is obvious that under the procedure followed by the State Election Board in this case numerous protests or challenges to the candidacy of a candidate, for each of which he would be required to make a deposit of $250 before he could be heard in opposition thereto, might impose such a financial burden upon a candidate as to force his withdrawal or default at such hearing, thus defeating the purpose of the law to permit any citizen to assert in good faith his right to be a candidate for state office. So used, it would in fact deny such candidate a hearing upon objections to his candidacy to which he would be entitled.

The law is not wholly clear as to the duty of the State Election Board in requiring a deposit when more than one protest is filed against a candidate, and unquestionably the Election Board, in its construction thereof, acted in entire good faith in an endeavor to carry out the correct procedure under its provisions, but such construction, as we have pointed out above, might result in great abuse and in the denial of the plain legal right of a candidate. We do not think the Legislature intended the results which might lead from such construction. No appeal is provided by the statute from the action of the Election Board, and if petitioner had rested his rights solely upon the action of the board in requiring the additional deposit as a condition precedent to hearing the protest against his candidacy, we think the action of the Election Board, even though accompanied by good faith, would have amounted to an arbitrary denial of the clear legal right of petitioner to appear before the board and have a hearing on the merits of said protest.

But petitioner did not stand on said rights. He not only did not require this administrative body to enter its order of record denying him the right to be heard, but it appears from the record and oral arguments herein that he acquiesced in the action of the board by his withdrawal and absenting himself from further proceedings connected with said protest, by his demand for the return of the deposit which he had theretofore made in the Roy J. Turner protest, and by his return to his home in a distant part of the state, evincing his intention wholly to abandon the contest hearing and his candidacy. It thus appears that if the action of the board in this respect was erroneous, he cannot now be permitted to reverse his actions and predicate his right to relief upon the actions of the Election Board in which he has by his acts and conduct acquiesced.

Mandamus is an extraordinary writ granted only when the petitioner has a clear legal right. Petitioner has not shown such right. It therefore follows that he is not entitled to the writ of mandamus.

Writ denied.

GIBSON, C.J., HURST, V.C.J., and OSBORN, BAYLESS, WELCH, CORN, DAVISON, and ARNOLD, JJ., concur. RILEY, J., concurs in result.