10 S.D. 450 | S.D. | 1898
Lead Opinion
This case was decided at the April term, 1897, of this court, and is reported in 10 S. D. 90, 72 N. W. 101. Upon petition a rehearing was granted, and the case was re-argued at the present term of this court.
• The appellant claimed in his petition for a rehearing, and now contends, that the court fell into an error in holding that the allegations of the complaint as to plaintiff’s eligibility were not denied. We are not satisfied that the court committed any error in assuming from the pleadings that the qualifications of plaintiff were not denied, but, conceding such to be the fact, it would not affect the decision in this case, as we are of the opinion that when a contest is instituted by one who was a candidate for the office, he will be presumed to be eligible to hold [¡he office for ydiiph he was nominated, and to which he claims
The appellant further contends that the court erred in holding thar certain pencil marks and crosses found upon two of the ballots counted by the court for the respondent were not identifying marks that rendered the ballot invalid. We are satisfied that we went too far in holding that the one ballot referred to in the opinion was invalid, and in holding that “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.” This we now hold was not a correct interpretation of the law applicable to the identification of ballots. Upon more mature consideration we held in McMahon v. Polk, 10 S. D. 296, 73 N. W. 77, that “the legislature never intended ro disfranchise a legal voter, who, in substantially complying with the mandatory requirements of the law, has, without an eyil purpose, but by accident or inadvertence, made a blot or
Dissenting Opinion
(dissenting). Being firmly convinced that appellant’s objection to the introduction of any evidence under the notice of contest was well taken, I now adhere to the views expressed in my former dissenting opinion (Church v. Walker, 10 S. D. 90, 72 N. W. 101), and still think the case should be reversed.