262 N.W. 80 | S.D. | 1935
Lead Opinion
As disclosed in the opinion of Roberts J., the principal issue to be determined in this case is whether our statutory provisions relating to registration of voters are mandatory or directory. The opinion holds that that portion of section *555 7082 (Rev. Code 1919), which provides that "no vote shall be received at any election in the state if the name of the person offering the vote be not on such registry list unless such person shall furnish to the judges of election his affidavit," etc., is mandatory, and that a failure to comply therewith renders the vote cast illegal, and refrains from passing upon the broad contention of the respondent that all provisions of the registry law are mandatory.
[1, 2] As disclosed in the opinion of Judge Roberts, the holdings are in conflict upon the question of whether statutes similar to our registry statutes are mandatory or directory. It is impossible for us to reconcile these conflicting decisions, and no useful purpose would be served in an attempt to differentiate between statutes held to be mandatory and those held to be directory. Montana originally took the position that similar statutes were mandatory. See Price v. Lush,
In this case it is conceded that all of these 22 voters were legal voters except for the failure of their names to appear upon the registration lists, or to substantially comply with the statute in furnishing affidavits, etc. It follows from what we have said above that, in our opinion the illegality of these 22 votes was not established.
While, perhaps, not material because of our holding that our registry laws are directory only when it is sought to invalidate a vote because of noncompliance therewith, nevertheless we wish to concur in the opinion of Judge Roberts so far as it relates to the rule announced in the case of Briggs v. Ghrist,
[3] Respondent insists further that certain contested ballots were erroneously counted by the trial court in favor of the appellant. We refer first to a group of seven ballots, each of which contained in the squares before some candidate's name, other than appellant or respondent, a diagonal line. In some of the ballots the line extended from one corner of the square across the square to the other corner; while in other ballots the line extended only partially across the square. Respondent insists that the court erred in counting these ballots because such ballots were identified ballots within the meaning of section 7273, R.C. 1919, as amended by chapter 222, Laws of 1921. A careful examination of the questioned ballots discloses that there was no uniformity in the marking. No two of the ballots contained the mark in the square before the same candidate's name. From an examination of the ballots it quite readily appears that the marks were placed there by inadvertence or mistake, without any intention whatsoever of placing upon the ballot an identifying mark. It would indeed be difficult, if not impossible, for any one to identify any one of these seven ballots from the marks as we have observed them. This court in the case of Naramore v. Sprague,
[4] We are satisfied that, applying the above rule to these seven ballots in question, the trial court did not err in counting these ballots as votes for appellant. It is further alleged that the court committed error in counting other ballots for respondent. We have carefully examined all of the ballots, and we are satisfied that, if there were error in the counting of any of these other ballots it was not prejudicial to the respondent for the reason that in each instance ballots of the same nature and of an equal number *558
or more were counted by the court for respondent over appellant's objection. People ex rel Bledsoe v. Campbell,
We are of the opinion, therefor that the decision of the trial court must be reversed. We are satisfied that no prejudicial error has been shown in the trial court's reception or rejection of ballots. It being our opinion that the illegality of the 22 ballots was not established by proof of noncompliance with the registry laws, the count of the trial court showing a majority of 2 in favor of appellant must stand.
The judgment and order appealed from are reversed, with directions to enter judgment in favor of appellant.
WARREN, P.J., and CAMPBELL, J., concur.
POLLEY and ROBERTS, JJ., dissent.
Dissenting Opinion
Plaintiff, Milton Cameron, and defendant, Dana Babcock, were opposing candidates for the office of state's attorney of Roberts county at the 1934 general election. The canvassing board determined that each candidate had received an equal number of votes. A recount board appointed by the circuit court declared defendant Babcock elected by a majority of 2 votes. This proceeding was then instituted in the circuit court to contest the validity of such determination. Upon the trial of the cause the ballots cast at the election were counted by the court from which it determined that 2,977 votes had been cast for defendant, and 2,957 for plaintiff, and thereupon rendered judgment for defendant. From such judgment plaintiff has appealed.
It was found by the trial court that 22 persons who voted for Cameron were not duly registered, and did not produce affidavits as required by law in proof of their right to vote. There was no fraud or misconduct, and it is admitted that these persons were otherwise qualified voters in their respective precincts. The inquiry presented is whether the absence of their names from the registry lists rendered their votes illegal.
The statutes of this state provide that there shall be had biennially a registration of the qualified electors of the state; that the auditor of every city and the clerk of every incorporated town for each election precinct within a municipal corporation, the clerk *559 of every organized township and the county auditor for each precinct in that portion of the county not organized into civil townships shall make a registry of all of the electors residing therein; that it is the duty of such officer to enter in such lists the names of all persons residing in the precinct whose names appear in the poll list kept in the precinct at the last preceding election if they shall be known to, or can be ascertained by, such officer to be qualified electors of the precinct; that the officer shall enter therein in addition to the names on the poll lists the names of other persons who are well known to him to be electors in the precinct or shall be proved to be electors upon the sworn affidavit of the person applying or upon affidavit of some elector whose name has already been placed upon the poll list; and that any person residing in and entitled to vote in an election precinct is entitled to be heard by the registration officer at any time after October first next preceding the day of election and until the time the registration lists shall have been completed and certified to the judges of the election with reference to corrections or additions to the registry. Sections 7076, 7077, 7079, 7081, Rev. Code 1919, and chapter 144, Laws 1931. By section 7082 it is provided: "No vote shall be received at any election in the state if the name of the person offering the vote be not on such registry list unless such person shall furnish to the judges of election his affidavit, stating that he is an inhabitant of the precinct, giving his place of residence, the time he has resided therein and the reason why he was not registered; and also shall prove, by the affidavit of two registered electors, that they know such person to be an inhabitant of the precinct, giving his place of residence and the length of time he has resided therein."
When plaintiff rested his case, it appeared that he had a majority of 2 votes. Recognizing the rule that, where illegal votes are cast, the candidate who undertakes to purge the ballots of these votes must show for whom they voted defendant established that 22 unregistered voters cast their votes for plaintiff. Three of these unregistered voters, attempting to comply with the registry law, presented affidavits stating that they were citizens of the United States, that they had resided in the United States for 5 years, in the state 1 year, in the county 90 days, and 30 days in the election precinct. They presented no corroborating affidavits. Eight *560 of the 22 unregistered voters deposited their ballots without submitting proof. They appear to have voted in good faith and without knowledge that their names were not on the registry list. The other alleged illegal votes were rejected by reason of some defect in the proof submitted.
It is the contention of the defendant that the registry law was enacted for the purpose of preserving the integrity of elections; that this law which authorizes electors to examine the registry lists and propose corrections during the process of registry imposes a responsibility upon electors to comply strictly with its conditions and go to the polls prepared to answer its requirements that its purpose may be fully accomplished. Similar statutory provisions have been held to be mandatory, and votes cast in disregard of their provisions declared illegal. Fitzmaurice v. Willis,
We need not determine the broad contention of defendant. It appears from the evidence that three unregistered electors presented insufficient affidavits upon which they were permitted to vote. Section 7082, Rev. Code 1919, not only requires that an unregistered voter furnish his own affidavit stating that he is an inhabitant of the precinct, giving his place of residence the time he has resided in the precinct and the reason why he has not registered but also requires that he establish such facts by the affidavit of two registered electors. The affidavits furnished did not substantially comply with these requirements. State ex rel O'Neill v. Trask,
The terms of the statute are explicit, declare in imperative terms that the ballot of an unregistered voter shall not be received unless the required proof has been furnished, and fix penalties for swearing to statements in an affidavit furnished by an unregistered voter which are knowingly false. We do not believe that it was the intention of the Legislature that these provisions may be wholly ignored, and this court should not judicially repeal by construction this statute because it may inexpediently impose such a duty upon an unregistered voter. As stated in the opinion of this court in Jacobs v. Pyle,
Plaintiff contends that 74 other votes appearing from the evidence submitted by defendant to have been illegally cast should have been deducted from the total number of votes received by defendant. He relies upon the case of Briggs v. Ghrist,
This court quotes in support of this rule from Napier v. Cornett, 68 S.W. 1076, 1077, 24 Ky. Law Rep. 576: "But the court applied the rule laid down in McCrary, Elect. § 495, in purging the returns of the illegal votes shown to have been thus cast, but as to which the testimony did not show for whom they were cast, by deducting them proportionately from both candidates, according to the entire vote returned for each. * * * After full consideration we have concluded that the rule laid down in McCrary is unsafe, and is not applicable to a case like this, where it is not shown to be impossible, by the use of due diligence, to show for whom the illegal votes were cast; and that is the only class of cases to which McCrary holds that rule should be applied. He says: `Let it be understood that we are here referring to a case where it is found to be impossible by the use of due diligence to show for whom the illegal votes were cast. If in any given case it be shown that the proof was within the reach of the party whose duty it was to produce it, and that he neglected to produce it, then he may well be held answerable for his own neglect; and because it was his duty to show for whom the illegal votes were cast, and because he might, by the use of reasonable diligence, have made this showing, it may very properly be said that he should himself suffer the loss occasioned by deducting them from his own vote.' The presumption is in favor of the regularity and authenticity of the returns. The burden is upon the contestant to overcome that presumption. * * * We concur with Judge McCrary that `the ordinary principle which requires the party holding the affirmative to prove the facts, and all the facts, necessary to make out his case, is the better rule, and that it will in all cases be safer to follow it.' The contestant had the burden, and that burden was only partially sustained by showing that illegal votes were cast. In order to make out his case, he must show for whom they were cast."
The Kentucky court had before it a ruling of the trial court deducting illegal votes proportionately from both candidates according to the entire vote returned for each when it did not appear that the candidate was unable to show for whom the illegal votes were cast. In the case of Childress v. Pinson, 100 S.W. 278, 282, 30 Ky. Law Rep. 767, after discussing its holding in Napier v. Cornett, supra, the court concluded: "It would, indeed, be a most *563 unwise and ruinous policy and unsound principle of law to require that, where a litigant alleged that illegal votes had been cast, if he failed to show that they had been cast against him, it would be presumed they had been cast for him. If this were the law, a litigant would be practically precluded from charging that illegal votes had been cast, for, if he knew in advance that if he failed to substantiate the charge it would work to his own injury, he could not afford to make such a charge, except in those cases in which he knew with positive certainty that he could establish the allegation. The proper rule — the fair and just rule — is that, where a fraudulent vote is shown to have been cast, it should be charged against the one for whom it is cast, if this can be established, and if it cannot be established, then it should not be charged to any one."
Under some circumstances, failure of the party having the burden of proof may give rise to such inference that the illegal votes were cast in his favor and justify a deduction of the illegal votes from the total number cast for him. If it appeared that they voted by reason of anything done by or for him, it might be inferred that he received such votes. We do not feel that the record in this case warrants the application of the rule which plaintiff seeks to invoke.
POLLEY, J., concurs.
