198 N.W. 821 | S.D. | 1924
This appeal grows out of an election contest in Aurora county. At the November election in 1922, Dunn, the ■plaintiff, and Gamble, the defendant, were opposing candidates for the office of county treasurer. The canvassing board found that defendant had received more votes than plaintiff and declared defendant elected. Plaintiff, claiming- that he had received a greater number of legal votes than defendant, instituted a contest in the circuit court. The matter was referred to and tried by a referee, who, after hearing the evidence and examining the disputed ballots, found that both candidates' had received the same number of legal votes and that a tie existed. Upon motion by defendant the circuit court confirmed the report of the referee and entered judgment for the defendant. The judgment decreed, among other things, that no choice had been made by the voters; that the election certificate that had been issued to1 defendant was void, and that defendant be ousted from the office; that the tie that existed between plaintiff and defendant be decided by lot as provided by section 7317, Code 1919. This direction was carried out by the county auditor, with the result that plaintiff was declared to be elected and he immediately took possession of the office. From this judgment defendant appeals to this court.
The disputed questions are submitted to this court upon
Election contests are informal in their nature and are to be disposed of in a summary manner. Section 7345, Code 1919. They may be tried by a referee. Section 7342, Code 1919. No- motion for a new trial is required (trial courts rule -44), and appeals to this court are governed by special statute. Section 7345, 'Code 19x9.
This brings us to the determination of the number of legal votes cast for the respective parties to this action. Appellant and respondent each took exceptions to- the counting of certain ballots for the other party on the grounds: First, that such ballots bear marks of erasures and are therefore “spoiled ballots” under the provisions of section 7273, Code 1919-. Second, for the reason'that such ballots bear distinguishing marks that enable a voter or a • third party to identify them under the provisions of section 7273, Code 1919, as amended by chapter 222, Laws 1921. Third, on the ground that certain ballots had been marked contrary to the manner provided by section 7264, Code 1919. Fourth, on the ground that certain ballots are marked in the circle at the head of the ticket and also- in the circle before the name of the candidates on the same tickets. Fifth, on the ground that certain ballots are marked in the circle at the head of the ticket and also-in the circle in front of the names of certain candidates on other tickets. Sixth, exception, was taken to the counting of a ballot for plaintiff that had printed across the face thereof the words “official ballot.” These words have the appearance of having been placed on the ballot -by one of the' election judges by mistake while in the act of marking the official ballots preparatory to handing
Under the provisions of section 7265, the judges of election are required to ascertain the intention of the voter, if it can be done, and to count the vote accordingly; but the voter must express his intention in the manner pointed out by the statute (Ward v. Fletcher, 36 S. D. 98, 153 N. W. 962), and where the voter has expressed his intention otherwise than in the manner provided by law the vote should be excluded.
The ballots that were marked in the circle at the head of the ticket and also in the circle before the names of one or more candidates on the same ticket were properly counted. Where a voter makes a cross in the circle at the head of a ticket, he votes for every candidate on that ticket, and to place a cross in
On some ballots a cross was placed in a circle before the names of opposing candidates other than plaintiff and defendant, on different tickets. This does not vitiate the whole ballot. It merely nullifies the vote as to the opposing candidates voted for, and in the absence of other irregularities such ballots were properly counted for plaintiff and defendant respectively.
By excluding the two ballots Exhibit I 8 and A io that were improperly counted for plaintiff, defendant has two more votes than plaintiff and should be declared to -be elected.
The judgment appealed from is reversed.
Note.' — Reported in 198 N. W. 821. See, Headnote (1), American Key-Numbered Digest, Reference, Key-No. 100 (4), 34 Cyc. 861; (2) Elections, Key-Nos. 269, 301, 305(1), 20 C. J. Sec. 270 (1925 Annos.), Sec. 381, Sec. 382 (1925 Annos.); (3) Elections, Key-No. 186 (1), 20 C. J. Sec. 181; (4) Elections, Key-No. 194(9), 20 C. J. Sec. 198; (5) Elections, Key-No. 194(7), 20 C. J. Sec. 199; (6) Elections, Key-No, 180(1), 20 C. J. Sec. 184; (7) Elections, Key-No. 180(5), 20 C. J. Sec. 187; (8) Elections, Key-No. 186 (4), 20 C. J. Sec. 192.
For authorities discussing the question of irregularities in marking ballots, see note in 16 L. R. A. 754.
On validity and construction of law as to marking'official ballots, see note in 47 L. R. A. 80.6.