137 N.W. 826 | N.D. | 1912
This is an appeal from a judgment of the district court of McLean county in an alleged contest proceeding involving the nomination of a candidate to the office of representative in and for the forty-sixth legislative district. The primary election was held on June 26th and the canvass of the returns was completed on July 15th, showing that contestee received one more vote than the contestant at such primary election.
On July 23d, contestant presented to the district court his affidavit setting forth the fact that he was a candidate at such primary election for nomination to the office of representative, and also setting forth the number of votes received by the candidates thereat according to the official canvass as declared by the county canvassing board. He then states, upon information and belief, that in three designated precincts in such county the ballots on the question of the nomination of representative
The sole question presented for our determination is whether the district court had any jurisdiction in the premises, and this involves a construction of those portions of the primary election law as enacted in chapter 109, Session Laws, 1907, relating to contests of nominations (hereunder.
We are agreed that no such jurisdiction was acquired, for the obvious reason that the alleged contest proceedings were not instituted within ten days -after the completion of the canvass. The portions of such primary election law relative to contests is one of the most vague and indefinite statutes which we have ever been called upon to construe, and the exact intention of the legislature is left largely to inference and conjecture, and we trust that the next legislature will correct and put into intelligent language this portion of said statute to the end that the citizens, as well as the courts, may not be left in doubt as to the legislative will.
Notwithstanding the very crude provisions of such statute it is, we think, reasonably clear that by § 31 of said act it was the legislative intent that such contests should be initiated within ten days after the completion of the canvass. The first sentence in said section is as follows: “Any candidate at a primary election, desiring to contest the nomination of another candidate or candidates for the same office, may proceed
While the statute above quoted uses the words, “may proceed by affidavit,” we think that when such expression is construed in connection with § 17 of the act making § 688 of the Revised Codes applicable, the intention was as we have above stated.
Counsel for contestant and the trial court evidently misconstrued § 31, and were misled by the language therein employed. Among other things it provides: “In case the contestant shall set forth in his affidavit, upon information and belief, that the ballots in any precinct have not been correctly counted, and that he has been prejudiced thereby, the judge shall make an order requiring the custodian of such ballots to appear before him at such time and place, and abide the further order of the court. At the time and place stated, the ballot boxes shall be opened and the ballots recounted in the presence of the court. If it should be found that a mistake has been made in counting such ballots, then the contestant shall be permitted, upon application, to amend his affidavit of contest by including such additional facts therein.” As we construe this language, the intention merely was to enable the contestant to have a recount in court of the ballots in any precincts, upon a showing by affidavit upon information and belief that such ballots have been incorrectly counted to his prejudice. Counsel and the trial court erroneously-construed this as prescribing a method of contesting a nomination where the sole ground of the contest is an incorrect counting of the ballots, whereas, as we construe the language, the evident legislative intent was to provide a method whereby in a regularly pending contest the contestant may procure a recount of the ballots. In other words, it is merely a provisional remedy afforded the contestant in his contest proceedings, but in order to invoke such remedy he must first have pending a contest in due form. He can no more invoke such remedy without a pending-contest than a plaintiff can have an attachment issued without a pending-action.
The affidavit mentioned in § 31, which may be made on information and belief to be used as a foundation for procuring a recount of the ballots, is not the same as the contest affidavit previously mentioned therein, although on a superficial reading of this section such a conclusion is apt to be deduced, owing to the peculiar phraseology of the statute. The fourth sentence of this section, however, effectually refutes such a conclusion. It provides that if on such recount of ballots it is found that a mistake was made in counting them, “the contestant shall be permitted, upon application, to amend his affidavit of contest by including such additional facts therein.” The affidavit used as a basis for procuring a recount has, after such recount, fulfilled its mission, and there is no necessity for its amendment, but not so as to the contest affidavit. The legislature evidently contemplated that the latter should be couched in positive averments. Hence, the recognized necessity of an amendment thereof after the facts are discovered. Why should the “additional facts” disclosed by a recount of the ballots be included in the affidavit used as a basis for procuring such recount ?
But contestant’s contention inevitably leads to the conclusion that a mistake in counting the ballots is the only ground of contest provided for by the statute. This is not correct, for if so, many provisions found therein would be utterly meaningless. We must, of course, if possible, so construe the law as to harmonize and give effect to all its provisions, but we cannot do this if we adopt contestant’s construction thereof.
Bor the foregoing reasons, the contestee’s objection to the jurisdiction of the court should have been sustained.
Judgment reversed and the proceedings will be dismissed.