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REHEARINGS DENIED.

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in 38, 41-43, 45-47, Pac. This list does not include cases where an opinion has been filed on the denial of the rehearing.)

Askrem v. Squire (Or.) 45 P. 779.

Lyndonville Nat. Bank v. Folsom (N. M.) 38 P. Ayres v. Thomas (Cal.) 47 P. 1013.

233. Bank of British Columbia v. Frese (Cal.) 47 P. McDonough v. Great Northern Ry. Co. (Wash.) 783.

46 P. 334. Barnes v. Cox (Utah) 41 P. 557.

McNeil v. Hansen (Cal.) 46 P. 1065. Beachy v. Ryan (Kan.) 45 P. 970.

Matthews v. Bull (Cal.) 47 P. 773. Booth v. Moody (Or.) 46 P. 881.

Matlock v. Wheeler (Or.) 43 P. 867.

Moody v. Richards (Or.) 45 P. 777.
Carver v. Steele (Cal.) 47 P. 1007.

Morrison v. Rodgers (Cal.) 46 P. 1072.
Chapman v. Neary (Cal.) 46 P. 867.
Clarno v. Grayson (Or.) 46 P. 426.

Nickum v. Danvers (Or.) 42 P. 130. Compton v. Schwabacher Bros. & Co. (Wash.) Noble Mercantile Co. y. Mt. Pleasant Equitable 46 P. 338.

Co-operative Inst. (Utah) 42 P. 869.
Cook v. Bullion-Beck & Champion Min. Co. Norton v. Elwert (Or.) 41 P. 926.

(Utah) 41 P. 557.
Coos Bay, R. & E. R. & Nav. Co. v. Coos Coun- Ogden v. Davis (Cal.) 47 P. 772.
ty (Or.) 47 P. 1101.

Orange County v. Los Angeles County (Cal.) 46 Cornell Úniversity y. Denny Hotel Co. (Wash.) P. 173. 46 Pac. 654.

Osmun v. Winters (Or.) 46 P. 780. Cox v. Alexander (Or.) 46 P. 794.

People v. Knight (Cal.) 47 P. 925. Doerhoefer v. Farrell (Or.) 45 P. 797.

People v. Ritchie (Utah) 42 P. 209. Duffy V. MacMahon (Or.) 47 P. 787.

People v. Tallmadge (Cal.) 46 P. 282.

People v. White (Cal.) 47 P. 771.
Everett y. Los Angeles Consol. Electric Ry. Co. People v. Worthington (Cal.) 46 P. 1061.
(Cal.) 46 P. 889.

Ritzman v. Burnham (Cal.) 46 P. 379.
Ferguson v. Sherman (Cal.) 47 P. 1023.
Fiore r. Ladd (Or.) 46 P. 144.

Salisbury v. Burr (Cal.) 46 P. 270.
First Nat. Bank of Nephi v. Foote (Utah) 42 Sheeley v. Simpson (Kan.) 16 P. 994.
P. 205.

Smith v. Powell (Kan.) 47 P. 992. First Nat. Bank of Santa Ana v. Erreca (Cal.) Southern Oregon Co. v. Coos County (Or.) 47 P. 47 P. 926.

852.

State v. Thompson (Or.) 42 P. 1002. Grant v. Los Angeles & R. R. Co. (Cal.) 47 P. Sykes v. Arne (Cal.) 47 P. 80S. 872.

Tarpey v. Sharp (Utah) 43 P. 104. Heller v. Dyerville Manuf'g Co. (Cal.) 47 P. | Thornton v. Krimbel (Or.) 12 P. 995. 1016.

Tyler v. Cate (Or.) 45 P. 800. Hoffmpire v. Martin (Or.) 45 P. 754.

Wallace, Smuin & Co. v. McLaughlin (Utah) 43 Jones v. Jones (Utab) 41 P. 503.

P. 109.

Wallowa Nat. Bank v. Riley (Or.) 45 P. 766. Kiser v. IIolladay (Or.) 45 P. 759.

Watson s. Buckler (Or.) 41 P. 76).

Wharton, In re (Cal.) 40 P. 172. Leer. Southern Pac. R. Co. (Cal.) 47 P. 932. Williams v. Bergin (Cal.) 47 P. 877. Leedom v. Earls Furniture & Carpet Co. (Utah) Willis v. Holmes (Or.) 42 P. 989. 42 P. 208. 48 P.

(xiv)

PETITION FOR ORDERS.

Petitions for orders to certify to the Supreme Court of Kansas for review have been refused in the following cases in the Court of Appeals:

Atchison, T. & S. F. R. Co. v. Hine, 47 P. 190. Long Island Ins. Co. v. Hall, 46 P. 47.
Atchison, T. & S. F. R. Co. v. Phelps, 46 P. 183.

McCalla v. Daugherty, 46 P. 30.
Beachy v. Ryan, 45 P. 970.

Merrimac River Sav. Bank v. Curry, 46 P. 204. Berry v. Fairmount Town Co., 46 P. 28.

Missouri Pac. Ry. Co. v. Brown, 47 P. 553. Blush v. State, 46 P. 185. Bradford v. Larkin, 45 P. 69.

National Bank of Paola v. Hampson, 45 P.

970. Casner v. Crawford, 46 P. 41.

National Mortgage & Debenture Co. y. Lash, 47 City of Kansas City v. Fagan, 46 P. 1009.

P. 518. City of Kansas City v. Hescher, 46 P. 1005. New England Trust Co. v. Nash, 46 P. 987. Dodge v. Girard Fire & Marine Ins. Co., 46 P. Phænix Ins. Co. of Brooklyn v. Arnoldy, 47 P. 1115.

178. Dodge v. Hamburg-Bremen Fire Ins. Co., 46 P. Putnam v. Hutchison, 45 P. 931.

25. Dudley v. Barney, 46 P. 178.

Reese v. Platt, 44 P. 31. Edgerton v. O'Neill, 46 P. 206.

Schnitzler v. Green, 47 P. 990.

Shockey v. Akey. 47 P. 562. Frazer v. Barry, 45 P 724.

State v. Blunk, 46 P. 998.

State v. City of Neodesha, 45 P. 122. Greer v. Payne, 46 P. 190.

State v. Schwartz, 46 P. 1116. Hale v. Aldaffer, 47 P. 320.

Union Pac. Ry. Co. v. Mills, 47 P. 623. Hayner v. Trott, 46 P. 37.

Wilmer v. Borer, 46 P. 181. Kansas & C. P. Ry. Co. v. Phipps, 45 P. 926.

48 P.

(IV) †

THE

PACIFIC REPORTER.

VOLUME 48.

party's candidate for sheriff. Held that, the electors having voted for two candidates for sheriff, their intention could not be determined, and as to sheriff the ballots could not be counted.

Appeal from district court, Gallatin county; F. K. Armstrong, Judge.

Quo warranto on the relation of W. Randolph Brooks to determine the right of William J. Fransham to the office of sheriff of Gallatin county. From a judgment in favor of defendant, relator appeals. Reversed.

T. J. Walsh, for appellant. Luce & Luce, for respondent.

(19 Mont, 273) STATE ex rel. BROOKS v. FRANSHAM. (Supreme Court of Montana. March 8, 1897.) ELECTION-COXTEST-REMEDIES-PETITION --- PUB

LICATION OF NOMINATIONS-ERRORS IN OFFICIAL BALLOT PROCEEDINGS TO CCRE - NEGLECT – ESTOPPEL-WILL OF LEGAL ELECTORS Cox. TROLLING EFFECT-MARKS ON BALLOTS-INTENTION OF ELECTORS.

1. Where two statutes, enacted at the same session of the legislature, provide remedies for the same cause of action, both should be given effect, if possible.

2. Únder Code Civ. Proc. $ 1414, which provides that a person claiming to be entitled to a public office unlawfully held by another may bring an action therefor in the name of the state, and sections 2010 et seq., which provide that any elector may contest the right of any person declared to have been elected to any office in a county, town, or city, the remedy of quo warranto is concurrent with the right to institute an election contest.

3. The nominations of an organized existing political party cannot be made by the petitions of the individual electors. State v. Rotwitt (Mont.) 46 Pac. 370, followed.

4. Pol. Code, $ 1318, requires the county clerk, at least 10 days before an election, to publish in a newspaper within the county the nominations to office, certified to him as required by law. Section 1322 authorizes proceedings by an elector to cure clerical errors, and the erroneous insertions of names of persons as candidates who are not in fact entitled to be so regarded. Held, that an elector who, after notice given by publication under section 1318, neg. lects to avail himself of the remedy provided by section 1322 to correct an error of the clerk in the preparation of the official ballot, cannot complain of it after the election.

5. The mere fact that the local district judge was a candidate for re-election, and thus disqualified from sitting in proceedings to correct errors in the official ballot, does not justify proceedings after the election, based on errors in the official ballot which could have been corrected by an application to another judge.

6. Where electors vote the official ballots supplied to them by the judges of election, their legally expressed will cannot be overthrown, where they are not at fault, by the fact that the public officer who prepared the ballots in some way neglected his duty.

7. At a general election the official ballots set out the lists of candidates'in columns headed by their respective party names.

There was a circle at the top of each column, and a cross marked in it meant a straight party vote. А mixed ticket was voted by marking a cross at the left of each candidate voted for. The party nominations were all complete. Ballots were cast having a cross in the circle at the head of one column, indicating a straight party vote, but bearing also a cross at the left of another

48 P.-1

HUNT, J. This is an appeal from a judgment of the district court of Gallatin county adjudging that the relator take nothing by reason of his action, and that the respondent recover his costs. The complaint alleges that the relator, Brooks, at the general election in November, 1896, was the Democratic candidate for sheriff of Gallatin county, and that the defendant, Fransham, was the Republic can candidate, having been regularly nominated by the Republican county convention of Gallatin county. Relator further alleges that on November 11, 1896, the board of canvassers of Gallatin county declared and certified that Fransham had received 1,080 votes for sheriff, and that Brooks had received 1,034 votes, whereupon Fransham was declared elected and a certificate issued to him. Relator, Brooks, then avers that the Silver Republican party has existed in Montana at all times since September 9, 1896, and by its convention had nominated candidates for electors for president and vice president of the United States, for representative in congress, and various state officers for the state of Montana, and had published its principles, but that no convention of said party was ever held in Gallatin county to nominate candidates for county offices or for any purpose. It is also alleged that the principles advocated by the Silver Republican party were much more popular in Gallatin county than the principles of the Republican party, and that subsequent to the adjournment of the Republican county convention for Gallatin county the various candidates of the Republican party for the various county of.

fices, to avail themselves of the advantages print and circulate the official ballots for the arising from the popularity of the Silver Re- ensuing election, to be held on November 3, publican party, “and with the view to repre- 1896, with no names appearing thereon under sent themselves and have themselves repre- the heading of the Silver Republican party, sented to the electors of the said county of or with the group of candidates of said parGallatin as the candidates of the said Silver ty, except those of such persons as had been Republican party, caused to be circulated nominated by it for presidential electors, rep. among the electors of the said county of resentative in congress, and state officers. Gallatin certain lists, headed with a recital, The relator avers that in accordance with in substance, to the effect that the said indi- the advice of the county attorney the county viduals so theretofore nominated by the clerk caused to be printed on October 23d a county convention of the Republican party large number of sample official ballots for of the said county of Gallatin were thereby, said county, on which there appeared no by the electors signing the same lists, nom- names of candidates of the Silver Republican inated as the candidates of the said Silver party except for electors for president and Republican party for members of the state vice president, member of congress, and state legislature and the various county offices, officers; but that, disregarding the advice so each individual so nominated being nominat- given, the county clerk later, on the same ed for the same office for which he had been day, at the instigation of said alleged nomtheretofore nominated by the said Republic inees of the Silver Republican party for councan convention; that the said lists so circu- ty offices, ceased to print the ballots in form lated were signed by the number of electors as aforesaid, and caused to be printed, and of said county requisite to make nominations thereafter to be distributed among the varifor the said oflices by electors acting inde- ous precincts of the county, official ballots pendently of the convention, and that, hay- on which all of the candidates of said Repubing been so signed, the said lists were as one lican party appeared under the head of the document filed in the office of the county re- Republican party, and also under the headcorder of the said county of Gallatin; and ing of the Silver Republican party, and that that relator avers that, save and except as such ballots, and no others, were used at all aforesaid, none of the said individuals, nor of the precincts of Gallatin county. The reany other person, was ever nominated by lator avers that one W. L. Holloway apthe said Silver Republican party as candi- peared as the Republican candidate for judge dates for any county office for the said coun- of the Ninth judicial district, and that one ty of Gallatin." And relator further avers F. K. Armstrong was at the time judge of that immediately prior to October 23, 1896, said district court, and was also at that time the supreme court of the state bad pending the Democratic candidate for re-election; before it several cases, in which the validity that Holloway's name appeared in the lists of other nominations made in other counties hereinbefore referred to, purporting to have of the state as the candidates of the Silver been nominated as the candidate of the SilRepublican party for county and district of- ver Republican party for judge, and that his fices was challenged, which said nominations name appeared upon said official ballots unwere made in the same manner as just set der the heading of the Silver Republican forth concerning the alleged nomination of party, by reason of which facts the said F. candidates of said Silver Republican party K. Armstrong was disqualified from hearing for county offices in Gallatin county; that is, any proceedings that might have been by the independent action of electors signing brought to obtain redress for the unlawful lists headed with a recital, in substance, to acts of the county clerk in printing and disthe effect that they thereby nominated cer- tributing the said ballots; that the relator tain persons named as the candidates of the and others, who were candidates of the DemSilver Republican party. It is averred that ocratic party, on learning on October 23, on October 23, 1896, the supreme court of 1896, the purpose of the county clerk in this state handed down its decisions affecting the matter of printing the official ballots of nominations attempted to be made in the Gallatin county, intended to apply to the manner hereinbefore set forth, and that supreme court to have the county clerk enthereupon the county attorney of Gallatin joined from printing or distributing any officounty advised the county clerk of that cial ballots for Gallatin county with any county of the decisions of the supreme court, names appearing thereon as the candidates and that the lists filed with him were invalid of the Silver Republican party for county as nomination certificates, and that the can- offices for Gallatin county, when they learndidates therein named were not entitled to ed the fact that the supreme court had deappear upon the official ballot of Gallatin clared on that day that it would hear no county, except as candidates of the Republic more cases touching the validity of nominacan party, and that he should not print the tions or regularity of ballots for the ensuing ballots with the names of any persons there- election, The relator then avers that at on as the candidates of the Silver Republican the election more than 200 ballots were cast party for county offices of said county; that in the various precincts of Gallatin county thereupon, on October 23, 1896, the county in which the voter designated his choice of clerk declared to relator his intention to candidates by marking a cross in the circle

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