129 Minn. 301 | Minn. | 1915
On March 12, 1915, the following opinion was filed:
The appeal presents the question whether the court has jurisdiction of an election contest, under section 529, G. S. 1913, in a case where, by reason of a tie vote between the opposing candidates for a county office, the canvassing board has been unable to declare either elected. The four justices who heard the ease are equally divided upon the question, and the judgment must therefore be affirmed.
The appeal having been reargued, the following opinion was filed on May 1, 1915.
Contestant and contestee were rival candidates for the office of clerk of the district court of Todd county. The election returns, as ascertained by the canvassing board, gave each the same number of votes. The contestant thereupon served and filed notice of contest as provided in section 529, G-. S. 1913, specifying certain grounds upon which he contended that he had received a majority of the legal vote cast at the election. Contestee objected to the jurisdiction of the court to entertain the contest. The objection was overruled and upon the trial the court found that, of the legal votes cast, contestant received one vote more than contestee, and adjudged contestant duly elected. Contestee appeals from the judgment.
The single question for determination in this court is, did the trial court have jurisdiction? In other words, can there be a contest when no one is declared elected by the canvassing board? The pertinent portion of the section cited reads: “Any voter may contest the election of any person for or against whom he had the right to vote, who is declared elected to a state, county or municipal office, or the declared result upon a constitutional amendment or other .question submitted to popular vote, by proceeding as follows: He shall file with' the clerk of the district court of the county of his residence, within ten days after the canvass is completed, a notice of appeal to such court, and,” etc.
It may be conceded that the power of courts to determine election contests must be exercised under the conditions and according to the procedure prescribed by statute. State v. Village of McIntosh, 95 Minn. 243, 103 N. W. 1017. Also that it was intended that the statutory mode should be so broad and elastic that the common law remedies need not be resorted to. State v. Gates, 35 Minn. 385, 28 N. W. 927. But with all that, we believe the policy in this state, as indicated in legislation and in court decisions, has always been to afford opportunity to ascertain'the true result of an election. Therefore, if an election has been held the right should exist whereby the parties interested may, through some appropriate judicial proceeding, ascertain whether the canvass of the returns expresses the true legal vote. It is not perceived why this right
Another consideration leads to the same conclusion. In McConaughy v. Secretary of State, 106 Minn. 392, 119 N. W. 408, it
Judgment affirmed.