125 Minn. 417 | Minn. | 1914
In December, 1912, the city of Duluth adopted a home rule charter which established a commission form of government for that city, and provided for the election of a mayor and four commissioners on the first Tuesday in April, 1913. The charter provided for “preferential” voting and for the following form of ballot:
At the election there were 10 candidates for mayor. No candidate received a majority of the first choice votes, nor of the combined first and second choice votes; and, after adding together all three classes of votes, the canvassing board found that William I. Prince had the highest number and declared him elected. A contest was duly instituted by William E. McEwen, and, as a result thereof, the trial court found that the total number of votes of all three classes cast for McEwen was 3,141, and the total number of such votes cast for Prince was 3,149, and that Prince had received the highest number of votes and had been elected. The contestant made a motion for a new trial which was denied; and judgment was rendered to the effect that Prince had been duly elected as, and is, mayor of said city. The contestant appealed from the judgment and also from the order denying a new trial.
Section 38 of the city charter provides for registering the names of voters and further provides': “No person shall be allowed to vote at any municipal election unless his name be registered as herein provided, except that any qualified voter of the city, whose name does not appear among the registered voters, may, at the time he offers his
Contestant also points out five affidavits as defective, for the reason that no official signature is attached to the jurat thereto. This is true, but it affirmatively appears that each of these affidavits was presented to a judge of election at the time the voter received his ballot, and was in fact sworn to before such judge, who took and thereafter retained the affidavit, but, in the press of business, neglected to affix his signature thereto.
Contestant also points out two affidavits as defective because not subscribed by the voter at the bottom thereof. The affidavit begins with the word, “I,” followed by a blank space in which to insert the name of the voter, and in each of these cases the voter himself wrote his name in this space, as and for his signature, instead of writing it at the bottom of the affidavit. The signature was sufficient.
Contestant also points out one affidavit as defective because, in the blank space left for the insertion of the number of the ward, the wrong number had been inserted, and, in the blank space left for the insertion of the name of the city, the name of the county had been inserted. The affidavit further stated that the voter resided in the precinct in which he offered to vote, at 1107 East Third street. As it showed exactly where the voter resided and this was within the precinct, the affidavit was properly received notwithstanding the above errors.
Contestant urges with much force and ability that the charter provisions in respect to these affidavits are mandatory, and, if the affidavits are not complete and perfect in form and substance, and executed by those technically qualified to execute them, that the votes of those who presented them were illegal and void. This is the position taken by the courts of some states, although under statutes perhaps somewhat different from our own. State v. Trask, 135 Wis. 333, 115 N. W. 823; Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95. But this court has not adopted the strict technical construction of election laws contended for by contestant.
The Constitution secures to every person possessing the qualifications prescribed therein the right to vote, “for all officers that now
The election law of 1861 provided for making a registration list of the names of voters and further provided that “no person shall vote whose name is not upon the said list at the time of opening the polls * * * Provided, if any person offers to vote at such election whose name is not upon said list as aforesaid, and who is by all the judges of said election personally known to have all the qualifications of an elector in said precinct, and entitled to vote at such election, but whose name has been accidentally omitted from the said list, then the name of such person shall be added to the said list, and the said person shall be allowed to vote, but in all such cases an entry shall be made opposite the name of such person of the fact that the said name was inserted in said list after the opening of the polls.” Chapter 15, § 5, p. 98, Laws of 1861. The act further provided that the canvassing board should not “refuse to include any returns in their estimate of votes for any informality in holding any election,
The Duluth charter, in addition to the provisions already cited, provides in section 45 that: “No informalities in conducting municipal elections shall invalidate the same, if they be conducted fairly and in substantial conformity with the requirements of this charter.” The charter discloses no legislative intent to change the rule, followed consistently since the decision of the Taylor case in 1865, that, where an election has been conducted fairly without taint of fraud or bad faith and only qualified voters have voted thereat, failure to comply with the regulations for conducting the election will not invalidate the votes so cast, unless- the ballots were prepared or voted in a manner which the law declared should invalidate them. It is not claimed that, at the election in controversy, any person voted who in fact lacked the requisite qualifications to entitle him to do so; neither is it claimed that any taint of fraud or bad faith is imputable either to the voters, the election officers, the candidates, or to others. Under the charter provisions and the rule established in the Taylor and Edson cases, the irregularities in the affidavits, pointed out by contestant, were not sufficient to invalidate the votes of the persons presenting them and such votes were properly counted.
Contestant also asserts that in three instances a voter had another person mark his ballot without making oath that he was unable to mark it himself, and that he permitted such person to select the candi
There are 68 ballots in which the voting cross-mark is placed opposite the names of two or more of the candidates for mayor in either the “first choice” column or the “second choice” column. It is conceded that these votes cannot be counted as either first or second choice votes, for the reason that the voter attempted to vote for two or more when he could vote for only one; but the contestant contends that, although they cannot be counted in the column in which they are placed, yet as the voter could indicate in the third column as many additional choices as he wished, they should be counted the same as if they had been placed in the third column. He argues that by placing the marks in the first or second column the voter indicated that he preferred the candidates so designated over the candidates whom he designated by marks placed in the third column; and, as they cannot be given effect in the column in which they were placed, they should at least be given the same effect as if they had been placed in the third column. In the section providing how votes shall be counted and canvassed the charter states: “If a ballot contain either first or second choice votes in excess of the number of offices to be filled, no vote in the column showing such excess shall
Two ballots, which contestant claims should have been counted for him but were not so counted, remain for consideration. One of these clearly should be counted for contestant. The first choice upon the other should probably be rejected, for the reason that it cannot be determined with sufficient certainty for whom the voter intended it; the second and additional choices were not for contestant. But if this vote be counted for contestant it would not affect the result.
Both the judgment and the order denying a new trial are affirmed.