10 S.D. 90 | S.D. | 1897
Lead Opinion
This was an election contest, wherein the plaintiff claimed he was duly elected county judge of Lyman county, but that, by a mistake in counting the vote, the canvassers declared the defendant elected, and issued to him a certificate of election. Judgment for the plaintiff and the defendant appeals.
Upon calling the first witness on the part of the plaintiff, the defendant objected to the introduction of any evidence under the notice of contest, upon the ground, among others, that “the notice of contest does not state facts sufficient to constitute a cause of action, and because the court has no jurisdiction to try the case, for the reason that the notice of contest fails to allege that plaintiff is eligible to the office of county judge of said county, and fails to state that plaintiff is a citizen of the United States, or that he is twenty-five years of age, or that he had resided in the state of South Dakota for one year preced
There are no allegations in said notice as to plaintiff’s qualifications, other than those found in paragraphs 1 and 5 of the notice, which are as follows: “(1) That the plaintiff is an elector of said county, and was a candidate regularly and duly nominated * * * in convention assembled for the office of county judge, at said election, * * * and that the defendant wTas the only opposing candidate for said position or office.” “(5) The plaintiff alleges that he received a majority of the legal votes cast at said election for the office of county judge of said county, and was duly elected to said office; and he further alleges that, if said errors and mistakes were corrected, it would clearly appear that he was elected.” It is contended by the appellant that as the contest was brought by the respondent in his own name, to establish his title to the office, he must
This brings us to the merits. There were a number of ballots challenged by the respective parties at the trial, and the original ballots were very properly annexed to and made a part of the bill of exceptions. As the respondent served an additional abstract, in which he denies that the ballots in controversy contained the markings stated by appellant in his original abstract, we are required by our rales to examine the original bill of exceptions, to determine which abstract is correct. On the canvass by the county board of canvassers, that board determined that the defendant received 98 votes; and the plaintiff 95 votes, and the certificate of election was accordingly issued to the defendant. On the trial the learned circuit court held that the judges of election erroneously counted three votes for the defendant which should have been counted for the plaintiff, and concluded that the plaintiff received a majority of the votes polled at the election, and was therefore legally elected. These three votes were apparently counted for the defendant by the judges of election for the reason that a cross was made to the left of the name of the defendant, notwithstanding the fact that the tickets on which the plaintiff was a candidate were properly marked by a cross in the circle at the head of the tickets, and plaintiff’s name was not erased. The action of the judges was in direct conflict with the statute and two decisions of this court. Laws 1895, Chap. 85, § 3; Vallier v. Brakke 7 S. D. 343, 64 N. W. 180; McKittrick v. Pardee, 8 S. D. 39, 65 N. W. 23. In these cases the court held that, when a ticket has a cross in the circle at the head thereof, every name op
The objection made by the appellant to one of the ballots that, though plainly marked by a cross in the circle at the head thereof, there was also a cross outside the circle, but at the head of the same ticket, should have been sustained. The cross outside the circle seems to have been made intentionally with a pencil, while the cross in the circle was made with the official stamp. If the cross outside the circle was made by mistake, the elector should have procured another ballot. On failure to do so the judges of election should have presumed it was made as an identifying mark, and should have declined to count the ballot for any candidate. Parmley v. Healy, 7 S. D. 401, 64 N. W. 186; Zeis v. Passwater (Ind. Sup.) 41 N. E. 796; Parker v. Orr (Ill. Sup.) Id. 10 2; Sego v. Stoddard (Ind. Sup.) 36 N. E. 204. The effect of the imperfect cross made to the right of the name of Henry E. Mayhew, can didate "for state auditor, is a matter of some doubt. But, though made intentionally, it may have been made for the purpose of indicating a purpose to vote for J. H. Kipp for state auditor, but without accomplishing that purpose. Hence we are of the opinion that this ballot was properly counted.
Appellant further contends that a number of ballots should have been rejected, and not counted for the reason that they were blotted, and thereby so marked that they might be identified. But while there are several ballots somewhat defaced by ink blots, we do not discover anything to indicate that the blotting was intentional, or made with the purpose of marking the ballots, but, on the contrary, the blotting seems to have been the result of accident, caused mainly by the use of exceedingly poor paper for the official ballots (common printing paper). Looking, therefore, at the ballots themselves, no court would be justified in holding that the blots and marks upon the ballots were intentionally made for the purpose of idem
This disposes of all the ballots claimed to have marks upon them except two, upon which the names of one or more of the candidates, not the plaintiff or defendant, were written in with ink upon a different ticket; but as one was counted for the defendant, and one for the plaintiff, and thé result was not affected, we do not deem it necessary to pass upon this question at this time.
The appellant further contends that the booths in the Second precint, where the election was held, were not properly arranged, and that the voter did not have secured to him the proper privacy in marking and depositing his ballot; and the appellant alleges in his answer that frauds were perpetrated at that precinct. But, as there was no motion for a new trial, the evidence in the case is not before this court for review. Gade v. Collins 8 S. D. 322, 66 N. W. 466. We musttherefore presume in favor of the judgment, that the allegations of the answer were not supported by the evidence. The ballots objected to were properly before us by the bill of exceptions, as the interpretation or instruction to be given the markings upon them presents a question of law for the court, and not a question of fact for the jury. LeClaire v. Wells (S. D.) 64 N. W. 519. Finding no error in the record, the judgment of the court below is affirmed.
Dissenting Opinion
(dissenting). Under Sections 1489 and 1491 of the Compiled Laws, none but a candidate or person claiming the right to hold an office can institute an election contest in his own name, and upon his own motion, and this court has