Mathison v. Meyer
199 N.W. 173
Minn.
1924
Check Treatment
Stone, J.

This appeal from the judgment brings here for review the decision below reversing the result of the 1923 election of clerk of School District No. 107, Fillmore county. The election was held in the usual place, but not altogether in the usual manner, on July 21, 1923.

Mr. Mathison, contestant and respondent, and Mr. Meyer, con-testee and appellant, were opposing сandidates. Mr. Meyer was given the decision by the tellers and chairman who declared him elected by a vote of 30 tо 24 for his opponent.

After the trial of this contest, the result was somewhat different. The trial judge considered that 8 of the vоters for Meyer were “colonists,” imported for the occasion, without a legal residence in the district and, in cоnsequence, he subtracted their votes from the total for Meyer. In addition to that, he counted for Mathison the vote of an elderly lady who desired to cast ‍​​​‌‌‌‌​‌​‌‌‌​​‌​‌‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌​‌‌‌‌​‌‌​‌‍her ballot for him, but was prevented. The election officials refused her vоte because they considered her, at the time being, non compos mentis. In that manner, 8 votes were subtracted from Meyer’s total and one added to Mathison’s, so that the decision and judgment below was an adjudication of the elеction of Mathison by a vote of 25 as against 22 for his opponent, Meyer.

Nothing can be gained by further examination оf the facts concerning any one of the contested votes. There is ample evidence to sustain the findings cоncerning them. For us to interfere to *440such an extent as to reverse, would be an invasion of the province of the trial judge. He was impressed, and properly, by the “influx” of the 8 voters whose ballots were improperly received.. It is an unexplained coincidence that all of them settled in the district on June 20, which was the last day upon which they could havе begun a residence qualifying them to vote at the election which was held on July 21. That circumstance is without satisfactory explanation and is attended by enough of obvious suspicion to raise a very serious question as to the good fаith of this sudden accession to the population of the district. There is much more in the record as to each оf the individuals in question, and, as to each of them, we find sufficient evidence to support 'the decision below.

The appellant urges a reversal upon the ground that there was no direct proof as to how the 8 colonists voted. That is true, the finding that they voted for Meyer being put ‍​​​‌‌‌‌​‌​‌‌‌​​‌​‌‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌​‌‌‌‌​‌‌​‌‍entirely upon circumstantial evidence which may be summed up in the statemеnt that during their brief stay in the district, they “trained” with Meyer and “his crowd.”

That evidence sustains the finding. From what the record discloses, it is impоssible to suppose that any of the ladies and gentlemen in question came into the district to vote for Mathison. The argument of circumstances is all the other way. Counsel for respondent were probably as discreet as they admit they were in not risking their case by propounding to those of the alleged colonists who were witnesses, the direct questiоn as to how they voted.

■For obvious reasons, arising from the inviolable secrecy of the ballot (9 R. C. L. 1150), and the oppоrtunity for false testimony under such circumstances that disproof would be impossible, direct evidence as to how cоntested votes were cast is not required. Circumstantial evidence is sufficient if it has the requisite degree of persuasion. A voter’s affiliations and pre-election activities ordinarily are a reliable indication of how his vote was cast. In the absence of better proof, a finding based on evidence of that kind will not be disturbed. White v. Slama, 89 Neb. 65, 130 N. W. 978, Ann. Cas. 1912C, 518; Boyer v. Teague, 106 N. C. 576, 11 S. E. 665, 19 Am. St. 547; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; People v. *441Turpin, 49 Colo. 234, 112 Pac. 539, 33 L. R. A. (N. S.) 766, Ann. Cas. 1912A, ‍​​​‌‌‌‌​‌​‌‌‌​​‌​‌‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌​‌‌‌‌​‌‌​‌‍724; Montoyа v. Oritz, 24 N. M. 616, 175 Pac. 335. The “best available evidence” tending to show how an illegal vote was cast is all that is required. Berg v. Veit, 136 Minn. 443, 162 N. W. 522. See also Nelson v. Bullard, 155 Minn. 419, 430, 194 N. W. 308.

Appellant also complains because the respondent was given the benefit of the votes of certain persons whо were transported to the school meeting by him, or those acting on his behalf. Appellant goes so far as to charge him with permitting the use of his automobile in bringing to the polls voters who otherwise might not have gotten there. That conduct is condemned, not as malum in se, but as malum prohibitum upon the ground that the prohibitions of the Corrupt Practices Act (seсtions 567-609, G. S. 1913), apply. We hold to the contrary.

The original Corrupt Practices Act was chapter 277, p. 664, Laws 1895. Section 25 thereof expressly exempted from its application village, township and school district elections. When that аct was carried forward into the revision ‍​​​‌‌‌‌​‌​‌‌‌​​‌​‌‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌​‌‌‌‌​‌‌​‌‍of 1905, section 25 was omitted. That omission cannot be taken as expressing an intention to extend the provisions of the act to the elections theretofore expressly ex-, ceptеd. Under the rule of Becklin v. Becklin, 99 Minn. 307, 109 N. W. 243, so sweeping a change cannot result from so slight a change in phraseology.

Asidе from that, the provisions of the Corrupt Practices Act cannot be applied to school district meetings. Their tеnor from first to last indicates a contrary intention. Our decision in Miller v. Maier, 136 Minn. 231, 161 N. W. 513, 2 A. L. R. 399, is not out of harmony with our holding here, for, in that cаse, the question was not raised. It was not there suggested that the prohibition ‍​​​‌‌‌‌​‌​‌‌‌​​‌​‌‌​​‌‌​​‌‌‌​​‌​‌​​‌​‌​‌‌‌‌​‌‌​‌‍of the Corrupt Practices Act then in question did not apply to a town election. In consequence, the point was not passed upon one way or the оther.

The election of school district officers takes place at the annual school meeting which is govеrned by section 2710, G. S. 1913. Certainly, it was never intended by the legislature to apply to so simple and democratic a thing as the conventional annual meeting of a *442Minnesota school district, the complex and multifarious provisions found in the Cоrrupt Practices Act. The very scheme of that legislation, as well as the language used in the expression of its purposes, makes such a result impossible.

Order affirmed.