State ex rel. Bourgeois v. Laizer

Tisrbax, J., delivered the opinion of the court. This is a contest by the relator, Olns M. Bourgeois, against Edwin Laizer for the mayoralty of the town of Waveland, Hancock county; the relator alleges that on the first Tuesday of August, 1898, an election was held in said town at which he and Edwin Laizer were opposing condidates for mayor; that said election was duly held, and that the commissioners of election made a return to the mayor and aldermen of said town stating therein that the relator had received thirty votes, and Edwin Laizer had received thirty-one votes for mayor; that said return was false and fraudulent; and that in fact John Barr, Henry Meggs, and Peter Meggs, who were not qualified voters of said town, had voted for Laizer, and their votes had been so counted for him. That A. Zimmerman, Edmund Bourgeois, Joseph Leon Bourgeois, Alcide Ladner, and Inicien Bourgeois, who were legally qualified and registered voters of said municipality, and who offered to vote in said election, and who, if permitted to do so, would have voted for relator, were fraudulently refused permission to vote by the election commissioners ; that in pursuance of said false and fraudulent return of said election commissioners, the said Edwin Laizer intruded himself into the office of mayor of said town, to which office the relator alleged himself to be entitled if said false and fraudulent votes for Laizer had been rejected. [150] The defendant demurred to the petition; the court sustained the demurrer, and the relator appeals. The two grounds of the demurrer relied on are: (1) The petition does not distinctly show that the relator was elected to said office of mayor. 2. The petition does not show that the relator offered to qualify for said office by taking the oath of office and by giving the required bond. 1. We understand the petition to allege that rejecting the illegal votes counted for Laizer, the relator was elected mayor; that certainly is the fair import of the language of the petition. 2. We do not think it was necessary for relator to have taken the oath of office, and to have given the official bond, or to have offered to do so, on or before the day of the commencement of the term of office, in order to the making of a contest for his right in the premises. The return by the election commissioners of Laizer as being elected to th.e office of mayor made it unnecessary for him to make an effort at qualifying for the office until the wrong of the commissioners was corrected. When his right to the office is determined in his favor, he will be allowed a reasonable time in which to take the official oath qnd give the official bond. If it be true, as is alleged by the relator and as is admitted by the demurrer, that the relator was duly elected to the office of mayor, and that Laizer intruded himself into the office by means of the false and fraudulent returns of the election commissioners, the relator has made a case for relief. Certainly the law cannot permit such misconduct without affording a remedy for the evil. The judgment is reversed, the demurrer is overruled, and the defendant is allowed thirty days to answer after the filing of the mandate in the circuit court. Reversed and remanded.