145 N.W. 566 | S.D. | 1914
This is an election contest. The question is whether at the annual election held at Madison, S. D., on April 16, 1913, the proposition' of granting permits for the sale of intoxicating liquors at retail was carried or was defeated. At said election there were deposited in the ballot box 826 ballots upon this question. Of these 826, there were 409 in favor of granting such permit, and 400 'against. Sixteen of the ballots were so illegally and improperly marked that they •could not be counted, and one was a blank. The ultimate. question is this: Are those 17 ballots to be considered in determining the number of votei-s “voting on such proposition?”
Our attention is called to page 1023 of the permanent House Journal of 1913, where we find: “Mr. Ruckman moved that House Bill .No. 280 be referred to a committee of one, with instructions to amend as follows: After the word ‘city’ in line 36 of section 1 of the printed bill, insert the ' words ‘voting on such proposition.’ Mr. Patrick moved the previous question, which motion prevailed. The question being on the motion to- amend as made by Mr. Ruck-man, and being put, the motion was lost.” It appears from the Senate Journal that the bill passed the Senate without change. It is therefore claimed that this record -shows that the words “voting on such proposition” were not in the bill as passed.. Our attention is also called to -chapter 167, Laws 1909, which provides for a permanent journal of the two legislative bodies, and contains the following: “And when so compiled, issued, bound and published in book form as journal of the-Senate and journal of the House, with indexes to the. same, and with front page as above set forth such published books shall be and -constitute the original evidence to (be used in -all courts, and shall constitute the original and permanent record of such legislative proceedings, and it shall not hereafter be necessary -to copy or record such .proceedings in any other book or record whatever.” It is therefore claimed that under the prior liquor election law as construed by this court, and under the present law, if the words “voting on such proposition” be omitted, the said 17 votes should he -counted, and that, as 409 is not a majority of 826, the proposition -did not prevail at the election.'
An examination of the House Journal reveals the fact that nowhere therein is there any copy of the 'bill as proposed or as
The bill as it was filed in -the office of the Secretary of State, and as it now appears in the Session Laws, contains the certificate by the secretary of the Senate and by the chief clerk of the House that it was the bill that was passed. That was the bill that was approved by the Governor.- An inspection of it shows that it was correctly printed in the Session Laws.
I11 the case of Narregang v. Brown County, 14 S. D. 357, 85 N. W. 602, this court said: “It is insisted.on the part of the respondents that the act of the Legislature, as enrolled and certified to by the respective officers and approved by the Governor, is conclusive upon the courts, and that it is not competent for the courts to consider any matter found in the journals tending to impeach the validity of the act. * * * We shall not now stop to inquire whether the journals of the two houses, if given full credence, afford sufficient evidence that the provisions of the 'Constitution were not complied with, 'but confine ourselves to the question of whether or not the entries found in the journals can in any case be received by the court to impeach the enrolled bills as certified to by the presiding officers of the two houses and approved by the Governor. * * * We are of the opinion that public .policy, the better reasoning of the decisions, and the great weight of authority support the respondent’s contention. The authorities sustaining the appellant’s view take the position that, as the proceedings provided by the Constitution for the passage of bills are mandatory, it. is the duty of the court, when any bill is claimed to have been passed in violation of any of the mandatory provisions of the Constitution, to examine the journals of the two houses, and, if it finds evidence therein that
Among the mulltitude of citations referred to in that case, we cite the following from Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93: “Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the Legislature, and parol evidence. Such a state of uncertainty in the statute laws of -the land would lead to- mischiefs absolutely intolerable.”
Dor the purposes of the present case we therefore are compelled to hold that chapter 167 of the Laws of 1909 cannot apply to the present inquiry notwithstanding its provisions. We are compelled to hold that the enrolled bill on file in the office of the Secretary of State is conclusive upon us as to the -contents of the legislative enactment known as House Bill No. 280, and which appears in the Laws of 1913 as chapter 254.
In the ease of State ex rel. Clark v. Stakke, 22 S. D. 228, 117 N. W. 129, construing section 2856, Pol. Code, as amended by Laws 1903, the court held that the words “majority of the voters of such city” required a majority of the qualified voters of the city as shown by the aggregate number of votes cast at the election for the different candidates for office. Construing the same section of the statute, this court in the case of Treat v. Morris, 25 S. D. 615, 127 N. W. 554, held that: “Ballots not counted by reason of defective marking will not reduce the majority required to authorize the sale. Where it is shown that some one voted who was not a legal voter, that would reduce the majority to be overcome; but, where a qualified elector has lost his vote by reason of' the improper marking of -his ballot, no such result would follow, but the majority required would remain the same.” Construing the same statute, this court, in Briggs v. Ghrist, 28 S. D. 562, 134 N. W. 321, held that, for -the purpose of determining the number of legal voters, votes cast by illegal voters should be excluded from the total, but that illegally marked ballots should be counted.
AAVth these -three decisions this court as at present constituted does not take issue. Were the questions therein decided still open and undecided, we should arrive at the same result.
But the question now presented is entirely different. The
In State ex rel. Hocknell v. Roper, 47 Neb. 417, 66 N. W. 539, upon rehearing, the decision in that case as reported in 46 Neb. 724, 61 N. W. 753, was reversed, and it was held that defective ballots should not be counted in determining whether three-fifths of all the votes cast were in favor of a certain county seat.
In the case of Murdoch v. Strange, 99 Md. 89, 57 Atl. 628, 3 Ann. Cas. 66, the court, in considering the effect of a “blank ballot,” said: “To denominate such a paper a ballot would seem to miscall it. It is in fact nothing"; it cannot be expressive of any intention; no rule or method of interpretation can relieve it of its dumbness. It no more indicates a preference for one of the candidates than for another.”
In People v. Town of Sausalito, 106 Cal. 500, 39 Pac. 937, the question at issue was whether a town had -become legally incorporated. The court said: “According to this statement, there was certainly a majority for incorporation. It is -clear that the seven -ballots without any marks to indicate the elector’s wish ‘in any particular’ were not votes in any sense. They were mere blanks, and were not to be counted or considered for any purpose.”
In Hicks v. Krigbaum, 13 Ariz. 237, 108 Pac. 482, the court did not find it necessary to determine whether illegal votes and- votes which were unintelligible or marked in such mannei as to subject them to rejection should be included in the aggregate, and considered as “votes cast,” but did determine that blank ballots should not be -considered as “votes cast.”
In City of Inglewood v. Kew, 132 Pac. 780, the District Court of Appeals of the Second District of California interpreted the phrases “voting for a proposition,” and “voting against a proposition.” The decision in that case is so applicable to the
Our election statute (section 1929, Pol. Code) provides as follows: '“In the canvass of the vote any ballot which is not endorsed as provided in this article, by the official stamp, shall be void and shall not be counted; and any ballot or parts of a
This section has been interpreted in many cases beginning with the case of Vallier v. Brakke, 7 S. D. 344, 64 N. W. 180, and it has been uniformly ‘held that void ballots should not be counted.
it is our conclusion, therefore, that, in determining the number of voters “voting on such proposition,” only legal ballots should ¡be counted, and that therefore the question, “Shall intoxicating liquors be sold at retail in the city of Madison,” did receive a, majority of the votes -cast upon such proposition at the election, held on April 15, 1913. If this were a question involving the right of two persons to- office, or if it were a question as to whether bonds of -a city had or had not carried, or even if it were a county seat contest, we are entirely clear that there would be no question as to what our decision should be in interpreting the phrase “voting on such .proposition.” Because it involves the question of the ¡sale of intoxicating liquors is no reason why we should depart from the rules of -construction applicable to other cases. The same rule should be followed in the one -case as in the other.
The judgment of the trial -co-urt is reversed, and the cause remanded, with directions to - proceed in accordance with the views herein expressed.