90 N.W. 483 | N.D. | 1903
This is an election contest. J. W. Perry, the contestant and appellant, and James Plackney, contestee and respondent, were opposing candidates for the office of county auditor of Eddy county at the November 6, 1900, election. The canvass of the official precinct returns by the county canvassing board showed that James Hackney had received 388 votes for said office, and that the contestant had received 346 votes, or a majority for the contestee of 42 votes. In pursuance of such canvass, a cerifícate of election was issued to the contestee, whereupon the contestant initiated this contest under the provisions of article 12, c. 8, Pol. Code, being § § 563-575, Rev. Codes, inclusive. The contestant, in his notice of contest, challenges only one precinct, viz., Cheyenne precinct. It is his contention that the vote of this entire precinct should he thrown out because of certain irregularities, which we shall hereafter refer to. Excluding the vote of Cheyenne precinct, the contestant received 309 votes and the contestee 291 votes, or a majority for the .contestant of 18 votes. The vote of Cheyenne precinct, as officially returned and canvassed, gave the contestee 97 votes and the contestant 37 votes, which, added to the unchallenged votes of. the other precincts, gave the contestee, a majority of 42, as herein-before stated. The trial court made six findings of fact, covering all of the facts in issue, and as a conclusion of law therefrom found that “the vote of Cheyenne precinct, as returned by said election board, was properly counted and included in the abstract of the board of canvassers of said county; and a certificate of election to the office of county auditor, based on said abstract, was properly
A statement of case was settled, in which the “contestant demands a retrial upon the issues found in the sixth finding of fact.” It is urged by counsel for respondent that the demand for a retrial is not sufficiently specific to authorize a review by us of the evidence upon any question of fact. We find it unnecessary to pass upon this objection. The sixth finding relates to the conduct of the election officers in Cheyenne precinct. It is not contended by counsel for appellant that any illegal votes were cast or canvassed, or that there is any evidence of actual fraud or bad faith on the part of the election officers of that precinct. On the other hand, the contrary is conceded in their brief. His objection to the sixth finding, which is made a part of his demand for a review, and limits the scope of the review demanded, is “that the facts found by the trial court in the third, fourth, and fifth findings of fact establish a presumption of fraud upon the part of the election officers and others, which is not rebutted by any evidence in the case, and necessarily affected the result of said election — “The trial court' found that there were cast in Cheyenne precinct, for the contestant and contestee, respectively, the number of votes returned by the precinct officers, and canvassed by the county canvassing board as before stated, and that the persons casting the same were qualified electors of said precinct. The correctness of these findings is not challenged by the contestant. His sole contention is that all of the votes cast in Cheyenne precinct were void, and should not be counted, because of the failure of the election officers of that precinct to comply with some of the provisions of section 521, Rev. Codes, relating to the manner of conducting elections. The particular provisions of the section relied upon are as follows: “The inspectors of elections shall provide, in their respective polling places a sufficient number of booths or compartments which shall be furnished with such supplies and conveniences as to enable the voter conveniently to prepare his ballot for voting, and in which electors may mark their ballots, screened from observation, and a guard rail with an opening so constructed that only persons within such guard rail can approach within ten feet of the ballot boxes or the booths or compartments herein provided for.” The election in Cheyenne precinct was held in a school house, which was 35 feet long and 24 feet wide. Prior to the opening of the polls, the precinct officers arranged the room for election purposes in the following manner: An inclosed space was made at the north end of the building by placing a row of school desks across the building, with a single opening ■ for entrance and exit, forming an inclosed space 10 feet wide and 24 feet long. In this inclosure the voting booths, ballot boxes, and all other furniture and supplies used in said election were placed. The booths were placed side by side, with the back against
The question presented for our determination is the correctness of the legal conclusion of the trial court that the votes of Cheyenne precinct were properly included in the official canvass by the county canvassing board. Error is properly assigned thereon in appellant’s brief. It is the contention of appellant’s counsel that there was such a failure to comply with the requirements of section 521, above quoted, in respect to the arrangement of the guard rail and booths, as to vitiate the entire vote of the precinct. Briefly
Applying these principles to the case at bar, we are unanimous in holding that the violations complained of under the facts of this case afford no ground for excluding the votes cast in Cheyenne precinct. The derelictions in question were free from fraudulent design, and were without effect upon the merits of the election. No illegal votes were cast, and there is no pretense that the voters did not vote their convictions with the same freedom that they would have had if the guard rail and booths had been arranged strictly in accord with the provisions of section 521, supra. Not only do the findings show that
Judgment affirmed.