194 N.W. 844 | S.D. | 1923
The trial court found:
“IV. Upon a canvass of the votes cast at said election the canvassing board found that the total number of names on the poll lists of the several voting precincts in the county at said election was 2,756, and that on the question of changing the county seat from- Oacoma to Kennebec there were' in all 2,733 marked ballots, of which 1,848 were for Kennebec and' 885 for Oacoma. * * *
.“VI. The total number of voters in Lyman county at said election as shown by said poll books was 2,756. The total number of ballots cast on the question of removal of the county seat from, Oacoma to Kennebec was 2,733. Of such ballots the court finds that 19 were cast iby persons whose names were on the poll list and who were not qualified voters, leaving 2,737 as the total number of legal and qualified voters at said election, of which two-thirds is 1,825.”
Our statute, section 7277, Rev. Code 1919, which differs from-the statute in force when those decisions were rendered, provides:
“None but official ballots, voted in accordance with section 7264 shall be counted.”
'Section 7264 is the section which gives directions as to the marking of the ballots. So that if ballots are not marked in accordance with that section they cannot be counted. This means that they cannot be counted for any purpose. They are illegal ballots. If they cannot be counted they surely form, no part of the total number “of the votes at said election.”
Having disposed of the matter thus far, the consideration of the other assigned errors 'becomes immaterial, because whichever way they or any of them are decided will not affect the result. Deduct from the total vote, 2,733, the votes of the 19 disqualified voters, and there remain 2,714. Appellant objects to the striking out of 3 of these which were oast for Oacoma (App. Brief, p. 83). If iwe should 'decide that question favorably to him, the total vote cast should be 2,717, instead of 2,714. The trial 'court in its rulings, deducted 13 illegal ballots, of which appellant does not complain (Resp. Brief, pp. 27, 28, 32), Deducting these from 2,717 leaves 2,702.
Appellant’s other assignments of error affect 62 ballots, including the votes of 7 Indians claimed by appellant not to be qualified electors (App. Brief, p. 71). If we should deduct all of these from' Kennebec’s total of 1,830, the result would he 1,768; but if we did that, we Would also be obliged to deduct the same number from the 2,702 total votes, which would leave 2,640, because if those 62 votes were illegal they should not be counted as votes cast at the election.
Inasmuch as 1,768 is more than two-thirds of 2,640, the consideration of said 62 ballots becomes unnecessary.
The judgment and order denying new trial are affirmed.
Note. — Reported in 194 N. W. 844. See, Headnote (1), American Key-Numbered Digest, 'Counties., Key-No-. -35(2), 15 C. J. Sec. 62; (2) Elections, Key-No. 3-5 (2),. 20 C, J. See. 184; (3) Elections, Key-No. 305(8), 20' C. J. See. 389; (4) Elections, Key-No, 186(1), 20 C. J. Sec. 222.
Authorities discussing the Question of irregularities in marking ballots are collated in note in 47 L. R. A. 808.