Appeal from Superior Court, Mohave County; Don T. Udall, Judge.
Proceeding by William F. Grounds to contest the election of W. D. Lawe as county supervisor in District No. 3, Mohave County. Judgment for contestee, and contestant appeals.
Crawford & Baker, of Prescott, for appellant.
Charles P. Elmer and Carl D. Hammond, both of Kingman, for appellee.
La Prade, Justice. Stanford, C. J., and Udall, J., concur.
La Prade, Justice.
[67 Ariz. 178] The appellant and the appellee were opposing candidates for the office of County Supervisor in District No. 3, Mohave County, Arizona, at the general election held November 5, 1946. The result of the official canvass was: Appellant Grounds 478 votes; appellee Lawe 489 votes. Appellee Lawe was declared elected by the canvassing board and a certificate of election issued to him. Appellant will hereafter be referred to as contestant and appellee as contestee.
The contestant filed a contest of election which, after an inspection of the ballots cast by voters voting in person and by absentee ballots, proceeded to trial and judgment to the effect that contestant take nothing by his action and declaring contestee to be duly elected to the office in question. The appeal is from this judgment.
The statement of contest of election of contestant challenged the election of contestee upon four grounds: (1) That the contestee was ineligible to the office for the reason that he was not a resident of Supervisorial District No. 3; (2) that the election board of Short Creek Precinct were guilty of malconduct in permitting persons to vote who were not qualified electors of the precinct, and in counting the votes cast by the unqualified electors; (3) that the absentee election board were guilty of malconduct in permitting persons to vote who were not qualified electors of the supervisorial district, and in counting the votes cast by said unqualified electors; and (4) "That by reason of erroneous counting of (and the casting of illegal) votes, in all voting precincts of Supervisorial District No. 3, as aforesaid, the said W. D. Lawe, did not in fact receive the highest number of votes for the office of Supervisor of District No. 3 of the County of Mohave, State of Arizona." (The words in parenthesis were added by permission of the court as a trial amendment.)
As a result of the inspection conducted prior to the trial, the parties stipulated that each received the following number of unquestioned votes: William F. Grounds 461; W. D. Lawe 484. The trial court
found that out of thirty-three questioned ballots fourteen should be counted for Grounds, four for Lawe, and that the remaining fifteen contested ballots should not be counted for either party. At this stage of the proceedings the count was; Grounds 475 votes, Lawe 488.
With reference to the Short Creek Precinct, which was one of the voting [67 Ariz. 179] precincts of the Third Supervisorial District of the County, fifty ballots were cast for the contesting parties, ten of which were counted for Grounds and forty for Lawe. The trial court found that, of these fifty votes cast in Short Creek, fifteen had been cast by persons not qualified to vote in Arizona for the reason that they were residents of the State of Utah, though registered as voters in the Short Creek Precinct. No attempt was made by either party to prove for which of the two candidates these fifteen ballots had been cast. The trial court concluded that the election returns of this particular precinct should be purged of the fifteen illegal votes, and that said votes should be deducted from those received by the contestant and contestee in the same ratio as the total vote of the precinct was cast for the respective parties: Grounds, having received ten votes, being one-fifth of the total vote cast in the precinct, had three votes deducted from his total of ten; Lawe, having received four-fifths of the vote, had a total of twelve votes deducted from his original vote of forty. The count then stood; Grounds 472 votes, Lawe 476 votes.
Contestant in his opening brief, with reference to the absentee ballots, argues at great length that at least seventy-one illegal absentee ballots were cast which if purged even on a pro rata basis would leave the contestant as the legally elected supervisor. This matter will be considered later in the opinion.
The trial court made no findings that any of the absentee ballots were illegal but did specifically find
"That the absentee election board of the County of Mohave was not guilty of mal-conduct in casting, counting, tallying, or tabulating the votes of the absentee and disabled voters of the third Supervisorial district of said Mohave County."
The trial judge, at the close of the case, took the same under advisement, and was requested by counsel to make findings of fact and conclusions of law. After the matters had been submitted on briefs, the judge submitted a written decision indicating what the findings of fact would be, the conclusions of law to be drawn therefrom, and that judgment would go for the contestee. At a hearing to consider objections to the proposed findings of fact submitted by contestant, the latter made inquiry as to why the court had made no findings of fact upon the evidence that had been admitted purporting to show the illegality of at least seventy-one of the absentee ballots cast. There is nothing in the minute entries to indicate what action the trial judge took. There is no minute entry indicating that he ordered that the trial amendment alleging that the contestee did not receive the highest number of votes by reason of "the casting of illegal votes" be stricken or disallowed. [67 Ariz. 180] In any event contestant in his brief says that the trial court "indicated its view that the trial amendment was not broad enough in its scope," whereupon the contestant moved for permission to amend the statement of contest to conform to the proof by adding a paragraph containing additional grounds of contest, which will be specifically considered hereafter. This proffered amendment was denied. The assignments of error may be summarized as follows: That the trial court erred (1) in finding that the contestee was a resident of Supervisorial District No. 3; (2) in refusing to reject the entire vote in Short Creek Precinct; (3) in refusing to reject the irregular and illegal absentee ballots cast, and in refusing to reject the entire absentee ballots; (4) in refusing to permit the amendment offered to conform to the proofs; and (5) in refusing to order judgment for contestant for the reason that the judgment was not supported by the evidence. Appropriate propositions of law were made supporting these several assignments of error. Additional facts will be stated and considered in disposing of the several assignments of error.
The controversy as to contestee's residence arises out of the following fact situation. Mr. Lawe testified that since the year 1925 he had lived continuously in Mohave County Supervisorial District No. 3; that in 1928 or 1929 he acquired a 240-acre ranch in the Wallapai Mountains approximately fifteen miles in a southeasterly direction from the Town of Kingman; that upon purchasing the ranch he, his wife and his daughter moved onto the premises, and have at all times considered it to be their home; that Kingman is his post office address; that during the winters it was necessary for him to move into Kingman in order that his daughter might attend school; that he and his family lived in several rented houses in the East Kingman Precinct, which is one of the precincts making up Supervisorial District No. 3; that his daughter finished eight years of grade school and four years of high school in the Kingman schools; that during summer vacations the family moved back to the ranch; that he spent several days and nights of each week at the ranch looking after his livestock; that in the year 1942 he could not find a place to rent because of the tremendous influx of people into Kingman and the Kingman area occasioned by the war effort, and as a consequence he entered into a contract to purchase a house in the West Kingman Precinct in which he and his family began to live and where they are still living when they are not going back and forth to the ranch home in the mountains. Both Mr. Lawe and his wife testified positively that the ranch was their home (legal domicile), and that they never had any intention of changing their home from the ranch to the town of Kingman; that their residence in Kingman was always temporary though more or less continuous due to the exigencies involving the schooling of the [67 Ariz. 181] daughter; the war effort, in which both he and his wife engaged; and his duties as a member of the Board of Supervisors.
For some years prior to the 1946 election Mr. Lawe had been a member of the Board of Supervisors from the Third Supervisorial District. The clerk of the Board of Supervisors testified that since the year 1941, whenever Mr. Lawe was not in the office of the Board, the only ...