28 S.D. 562 | S.D. | 1912
Lead Opinion
This is an election contest contesting the declared result of an election held in the city of Miller, upon the question: “Shall intoxicating liquors be sold at retail?” The canvassing board found that- there were 369 votes cast, of which it returned 186 as cast in favor of the sale, 182 against, and 1 blank. Upon the trial plaintiff offered in evidence all the ballots cast at the election and then rested his case. There was no dispute as to how the several votes had been counted by the canvassing-board, and plaintiff contended that certain ballots counted in
In Napier v. Cornett, (Ky.) 68 S. W. 1076, the court said: “But the court applied the rule laid down in McCrary, Elect. §
Both from reason and the authorities cited, and also in view of our statute requiring the drawing out of any excess ballots in a ballot box — which statute, as was stated by Justice Cooley, is
We believe, in the case at bar, the trial court would have been justified in deducting the illegal vote pro rata, and this rule is the more favorable to- defendants. The trial court has, however, failed to make any finding as to the precinct in which these votes were cast. A glance at the evidence, however, shows that, whichever precinct the votes may have come from, at least one vote must be deducted from the total cast in favor of the question submitted. If, in the absence of findings as to,the votes from the several precincts, we should treat the whole city as one precinct, the'same result would follow.
We thus find that there were 369 votes returned. 186 were canvassed in favor of the question submitted. The canvassing board erred in counting 2 of said votes in favor of the question At least 1 more vote must be deducted from this total owing to the illegal votes cast. Not to exceed 183 legal votes out of a total of 366 legal votes were cast in favor of the question submitted, and ■said question failed to carry.
The judgment of the trial court is reversed, and it is ordered to enter a judgment to- the effect that the question, “Shall intoxicating liquors be sold at retail?” did not receive a majority of the votes cast at the election mentioned in the complaint herein.
Concurrence Opinion
(concurring specially). Assuming that the number of voters of the city should be determined by the number who voted at the election at which the question of selling intoxicating