13 S.D. 86 | S.D. | 1900
At the election held in November, 1899, the plaintiff and defendant were rival candidates for the office of county commissioner in and fo.r the Fifth district of Kingsbury county. At said election there were cast for the plaintiff 176 unquestioned votes, and said votes were duly counted, canvassed, and returned for said plaintiff; and there were cast xor the defendant 193 unquestioned votes, and said votes were duly counted, canvassed, and returned for said defendant; and there were cast 28 votes which were marked by a cross in the circle at the head of the Union Reform party ticket, and a cross in the
The appellant contends that the provisions of Chapter 81, Laws 1899, are mandatory, and that under that law the elector could only mark'one ticket by a cross in the circle at the head of the ticket, and that, if he desired to vote for the plaintiff for county commissioner he could only do so by marking a cross in the circle at the left of the name of said plaintiff; that mak
Chapter 81, of the Laws of 1899, entitled “An act to amend Section 25, Chapter 60, Session Laws of 1897, relating to the manner of preparing ballots,” reads as follows:
“Section 1. * * * On receipt of his ballot the voter shall forthwith, and without leaving the polling place retire alone to one of the booths provided to prepare his ballot. He may prepare his ballot by making a cross in the circle over the head of the ticket he desires to vote, and if he desires to vote for any other candidate on any other ticket on the ballot, he must make a cross in the circle at the left of the candidates name for whom he desires to vote, and in case a voter does not wish to vote a party ticket he need not make a cross in the circle at the head of the ticket, but may make a cross in the circle at the left of the name of the candidate for whom he may wish to vote.
Sec. 2. The judges in recording the votes shall endeavor to record the intention of the voter. Should there be a cross
Section 25, above referred to, as enacted in 1897, before it was amended in 1899, provided that the elector should make a cross before the name of each person for whom he intended to vote. It will be noticed that the section as ameñded restores the former system as it existed prior to 1897, by providing for marking the ballot by making a cross in the circle over the head of the ticket he desires to vote, and, if he desires to vote for any other candidate on any other ticket, he must make a cross in the circle at the left of that candidate’s name, and, if he does not wish to vote any party ticket, he may make a cross in the circle at the left of any candidates’ names for whom he desires to vote on any party ticket, without making a cross in the circle at the head of any ticket. It will be further noticed that the judges, in counting the votes, are required, in case there be a cross in the circle at the head of one ticket, to hold the intention of the voter to be to vote for all*the candidates on that ticket, unless there be a cross in the circle at the left of the name of some candidate on some other ticket on the ballot, in which case the judges shall hold the intention of the voter to be to vote for the candidate before whose name he has placed
Counsel for the respondent contend that the learned circuit judge must have taken the view that the intention of the elector to vote for the judges and also for the county commissioner was clear, but we know of no rule by which the court below or this court can say that such was the intention of the voter. The law declares that, if such was his intention, it should have been expressed by marking a cross in the circle at the head of one ticket, and filling up that ticket by marking a cross in the circle at the left of the name of the candidate intended to be voted for on another party ticket, and so made to constitute a part of his ticket, and this is the only method by which the courts can determine what the intention of the voter was. The method by which the voter may make up his ticket in this state is so simple that we do not deem it necessary to fritter away the provisions of the statute in attempting to seek in some undefined method the intention of the elector. Judges of election and courts should not be required to spend their time in en