Newton v. Newell

26 Minn. 529 | Minn. | 1880

Berry, J.

This is a contest for the office of sheriff of Dakota county, carried on under the provisions of sections 32 and 52 of the general election law, Gen. St. 1878, c. 1.

1. Section 32 provides that an appeal may be taken to the district court from the decision of the board of county canvassers, by entering notice thereof with the clerk of said, court within twenty days from the day of election; and section 52, that the contestant shall, within twenty days after the votes have been canvassed, cause a notice, specifying the points on which the election will, be contested, to be served on the person whose election he intends to contest. The appeal is perfected by the entry of notice thereof with the clerk. The statute does not require that the notice to be served on the contestee shall contain any statement that an appeal has been taken. Such statement is therefore wholly unnecessary. The district court acquires jurisdiction of the contest by the entry of notice with its clerk.

2. Section 52 further provides that all matters relating to such contest “shall be heard and tried by the district court of the proper county, in the manner that civil actions are tried by the court.” This clearly gives the district court jurisdiction to try such contests without a jury. This disposes of the preliminary points made by the counsel for contestee, and brings us to the merits.

’ 3. The application of a few general rules, deducible from the statute and general doctrines of law, will, we think, properly dispose of the case.

Section 19 of the election law declares “if a ballot is found to contain a greater number of names for any one office than the number of persons required to fill the said office, the said ballot shall be considered void as to all the names designated to fill such office, but no further.” This is peremptory.

Whenever the fact of .the excess of names exists, the ballot is, pro tanto, void, and cannot be counted. The statute leaves no room for any speculation or conjecture as to the intention of the voter. As respects the office thus voted for, the ballot must be rejected. The six ballots for sheriff upon •which the name of either Newell or Wing was printed, but not in any way obliterated, and the name of Newton written, were, therefore, improperly counted for Newton, and must be deducted from his total vote as found by the court.

4. The ballots cast at an election may, in a proceeding óf this nature, as in quo warranto, and information in the nature thereof, be resorted to for the purpose of disputing the returns of the board of canvassers, and of investigating and ascertaining the actual state of the vote. But to entitle them to be used for these purposes, it must affirmatively appear that they have, in the language of section 18 of the election law, been “carefully preserved.” They must have been so carefully preserved as to place their identity beyond any reasonable doubt. If they have been so carelessly cared for as readily to afford frequent or continued opportunity to interested parties, or the friends of interested parties, to tamper with them and alter them, or add to or take from their number, unless all reasonable doubts as to their integrity are removed by an affirmative showing, the ballots are not entitled to be resorted to for the purposes mentioned. ' The ballots from. Empire, and the second and third wards of Hastings, were, in our opinion, too carelessly kept to entitle them, within these rules, to be received in evidence, or considered by the court below, in this contest.. The former were, therefore, properly rejected by the court, and the two latter improperly received.

5. With reference to the name by which a candidate may be sufficiently designated, we regard the following rules to be correct: If, for a certain office, there is but one person running of a given name, say the name of Frank E. Newell, a ballot for “Newell” simply, without any Christian name or initial thereof, will pass, and should be counted for Frank E. Newell; and so should a ballot for Frank Newell, or F. E. Newell, or F. Newell. So, if to designate tlie person voted for, letters are used which do not properly spell the name “Newell,” but do spell a word which is idem sonans, this should be counted. All these should be counted, for the reason that they designate the person intended to be voted for with reasonable certainty. But unless the ballot is of one of these kinds, or of equivalent certainty, (as it possibly may be, though we do not now perceive how,) it should be rejected. Therefore, a ballot for “Nall,” or “Null,” or “Neden,” or “W. Null,” should not be counted for Newell. Neither should a ballot for “New,” or “Newt,” or “Newto,” or “Newn,” or “Neto,” be counted for a candidate of the name of Newton. “Nuton” and “Newten” may, however, be properly counted for such candidate.

What would be the effect of proof before the district court that a candidate for an office was commonly known by some abbreviation of his surname, as well as by his full surname,, and whether, upon such proof, a vote by such abbreviation could properly be counted for such candidate, are questions which have not been discussed in this case, and which we are not now called upon to decide. Certainly, such proof .would not be admissible before a board of town or county . canvassers.

Applying these rules to the findings-of the court below in this case, we reach the folio wine result:

Newell received Newton received

In Burnsville, 50 votes. 8 votes.

Castle Bock, - 20 66

Douglas, 77 51

Eagan, - 80 19

Eureka, 51 79

Empire, - 130 140

Greenvale, 41 67

Hampton, - 84 70

Blastings — ■

1st ward, 104 50

2d ward, - 94 167

3d ward, 88 197

4th ward, - 28 49

Inver Grove, 69 24

Lakeville, - 101 91

Lebanon, 30 13

Marshall, - 59 29

Mendota, 56 19

Nininger, - 23 40

Randolph, ' 10 30

Bavenna, - 37 23

Bosemount, 66 89

Vermillion, - 92 40

Seiota, : . 13 29

Waterford, 8 59

West St. Paul, 53 26

Total, 1,465 1,475

The contestant is therefore elected by a majority of ten votes.

The order denying the contestee’s motion for a new trial, and the judgment, are accordingly affirmed;

Note. A motion for reargument of this case was denied, October 19, 1880.