126 Minn. 298 | Minn. | 1914
At an election held in the village of Adrian on the tenth of last March, the question of licensing the sale of intoxicants was submitted to a vote. The village canvassing hoard canvassed the vote and declared that 120 electors had voted in favor of license and 118 against. Within the statutory time contestants instituted this contest wherein the village and four persons, who, it is alleged, unlawfully voted in favor of license, are made contestees. The trial resulted in findings that the four persons named as contestees unlawfully voted at the election and that each one cast a vote in favor of license. The conclusion of law followed, as of course, that no license carried. The village alone appeals from the judgment entered pursuant to the decision.
Several technicalities are urged against a consideration of the merits of the contest. The respondents object to the court passing upon the sufficiency of the evidence to sustain the findings, for the reason that there is no settled case or bill of exception. The point is well taken. But since counsel for appellant asked for leave to take steps to procure a settled case and since it appears that the trial court, for his own use, ordered the official court stenographer to
The appellant insists that the court did not acquire jurisdiction because: (1) The notice of contest was not filed when the court made the order directing the manner and time within which it was to be served; and (2) that the service was void because made by one of the contestants. The notice of contest was filed within the prescribed time and thereby the court obtained jurisdiction. The court’s order, directing the manner and time of service of the notice on the contestees, may be said to have been made when filed.' It was filed simulanteously with the notice. But, whether that be strictly accurate or not, the signing of the order prior to the filing of the notice was a mere irregularity which did not go to the jurisdiction of the court to hear the contest under the present statute. Section 529, G. S. 1913. Such is the trend of the opinions in Whittier v. Village of Farmington, 115 Minn. 182, 131 N. W. 1079, and Walden v. Calef, 119 Minn. 165, 137 N. W. 738.
Under section 336, R. L. 1905, the notice was required to be served in the same manner as a summons in a civil action, but as amended in chapter 59, p. 78, Laws 1911 (section 529, G. S. 1913), this provision was eliminated, and the law now simply provides that the notice shall be served in such manner and within such time as the court may by order direct. In this case the order did not direct by whom the service should be made. The court did not err in overruling the contestees’ motion, made before answering, to dismiss the contest.
Appellant also contends that the contest should have been dismissed when the evidence was all in, because there was no proof that contestants were entitled to contest. It is true that none but a voter who had the right to vote at the election in question could institute this contest, and that the notice which serves as a pleading must show the contestants to be such voters. The notice here does so state. But evidently the sole controversy at the trial related to the right of the four persons, named as contestees, to vote and how they voted.
The contestees, other than the village, were called for cross examination. Upon the issue, that they voted without legal right, they were adverse parties and could be called by contestants for cross examination. A personal right of the contestees was involved. There is no suggestion that they were not properly made parties.
Authority is not wanting to sustain the proposition that, when it is shown that a person voted without right, it is perfectly proper to follow up the inquiry and ascertain how he voted so that the result of- the election may not be affected by his illegal vote. McCrary, Election, § 494. Black v. Pate, 130 Ala. 514, 30 South. 434; State v. Kraft, 18 Ore. 550, 23 Pac. 663, 20 Ore. 28, 23 Pac. 663; Vallier v. Brakke, 7 S. D. 343, 64 N. W. 180; Van Winkle v. Crabtree, 34 Ore. 462, 55 Pac. 831, 56 Pac. 74. None of the contestees, when asked how they voted, raised the objection that the answer might incriminate the witness. The court was not required to inform them of their privilege. Were they appealing no prejudicial error could here be found, and surely appellant cannot insist that they should claim a privilege personal to them either at the trial or on appeal.
The trial court’s finding that the four persons named as contestees voted illegally and that each one voted in favor of license cannot be disturbed by this court. One of these persons was not a citizen. He was born in Norway and came to the United States when a young lad. His father ivas born in Norway and never went further towards becoming naturalized than to declare his intention to become a citizen. The fact that this eontestee had voted, had held office of justice
Judgment affirmed.