7 S.D. 343 | S.D. | 1895
This is an election contest proceeding. The findings and judgment were in favor of the defendant, and the plaintiff appeals.
At the general election held in 1894 the plaintiff and defendant were opposing candidates for the office of county treasurer of Moody county. The vote as canvassed by the county board of canvassers, gave to the plaintiff 739 votes and to the defendant 742 votes, and thereupon a certificate of election was issued to the defendant. Within the proper time the plaintiff served a notice of contest, in which he alleged numerous errors in the canvass made by the judges of election, and set out in detail the number of ballots in the various precincts that he claimed had been illegally counted for the defendant. The defendant, in his answer, denied that any of the votes counted for the defendant were not legally counted for him, and alleged that a large number of votes had been illegally counted for the plaintiff, setting out the number in each precinct in detail. These issues involved the canvass in nearly all of the precincts in the county. The pleadings are voluminous, and we do not deem it necessary to set them out in this opinion, as the findings of the court present substantially all the questions that we are called upon to decide. The case was referred to a ' referee to rocount the ballots of the various precincts, and the referee performed that duty, and presented to the court with his report all the ballots in regard to which there was any contest. These ballots will be considered later on in this opinion.
It was alleged by the defendant that four of the voters who voted for the plaintiff were not qualified electors, and the court so found, and these votes were deducted from the number of votes cast for plaintiff. On the trial each of these four persons was a witness upon the stand, and was each asked the question, for whom he voted for county treasurer. The question was objected to in each case, upon the ground that the question called for a conclusion' of the witness, and is incompetent. And the appellant contends that under the Australian ballot system the question is improper, as the only method by which it can be shown how the
It is further contended by the appellant that the court erred in holding that these four persons were not qualified electors, and in deducting these votes from plaintiff’s total vote. But the evidence as to all these persons was before the trial court, and the question presented in each case was one of fact. After a careful examination of the evidence, we cannot say that the court did not properly find that these persons were not qualified electors. The question was not free from doubt, and this court might possibly have arrived at a different conclusion, but there is no such preponderance of the evidence in favor of the plaintiff as would justify this court in reversing the judgment of the court below.
It is also contended by appellant that the court erred in refusing to recount the ballots in Biver View township. This precinct, as canvased, gave 51 votes for the defendant and 26 votes for the plaintiff. In the canvass of the vote of that township by the judges of election there were gross irregularities on the part of the judges, found by the court not to be intentional or fraudulent, but resulting from carelessness and improper marking of the ballots by some of the judges in making the canvass. The court, we think properly, concluded that these marks were made upon the ’ ballots without any wrongful intention, and yet the same were so defaced by marks and attempted erasures on the part of the judges of election that it could not safely undertake to recount them. .
The court found specifically the markings on the ballots, and has fully set them out in its findings of fact. These findings are a part of finding No. 3, but, to facilitate reference to this part of the finding, we have subdivided" it into sections, and indicated them from 1 to 21 in parentheses.
“(1) Said Exhibits 14 and 22 of Spring Creek township, 1 of Lone Bock, 1 of Jefferson, 5 of Egan, and 2 of Flandreau, are each marked with a cross in the circle at the top of the Bepublican column, a cross opposite the the name of C. Brakke on the People’s party ticket, and the name of A. J. Yallier on the Be-publican ticket is not erased, and were not counted for either of said candidates, to which the plaintiff excej)ts.
“(2) Exhibit 8 of Flandreau township has a mark as follows, X, at the top of the Bepublican column and about one-half inch to the right of the circle, but within the column, which mark the court construed to indicate the intention of the voter to vote Be-
“(8) Exhibits 4 of Grovena township, 1 and 2 of Ward township, 11 of Spring Creek, and 10 of Elandreau township, are each marked with a cross at the right of the name of C. Brakke, and without any cross in any of the circles .at the top, and in case of Exhibits 1 and 2 of Ward the name of Vallier is erased, and were counted for the defendant, to which the plaintiff excepts.
“(4) Exhibit of Blinsmon township has cross in circle at top of Republican party ticket, the word ‘treasurer’ and the name ‘A. J. Vallier,’ are erased, and the name ‘C. Brakke’ is written with lead pencil in space below name ‘A. J. Vallier,’ and was counted by the court for defendant, to which plaintiff excepts.
(5) Exhibits 10 of Spring Creek township, 2 of Lone Rock,l of Blinsmon, are each marked with a cross in the circle at the top of the Republican column, also a cross made with the official stamp on the name of A. J. Vallier in said Republican column, and a cross to the left of C. Brakke in the People’s party column, and were counted by the court for the defendant, which the court held to constitute an erasure of the name of said A. J. Vallier, to which the plaintiff excepts.
“(6) Exhibit 4 of Flandreau township is marked with a cross in the circle at the top of the Republican column, the name of A. J. Vallier is erased, and one straight diagonal line at the left of the name of C. Brakke in the People’s party ticket apT pears, and is counted for the defendant, to which the plaintiff excepts.
“(7) Exhibit 21 of Spring Creek is marked with a circle within the circle at the top of the People’s party ticket, and has no other mark, and is counted for the defendant, to which the plaintiff excepts.
“(8) Exhibit 20 of Spring Creek has a large blu,e daub on the tpp qf the circle at the head qf the People’s party ticket,, and
“(9) Exhibit 7 of Coleman township has the circle at the top of the People’s party ticket filled with circular lead pencil marks, and has a cross to the right of the name of C. Brakke, and on the outer edge of the People’s party column, and is counted as a vote for defendant, to which the plaintiff excepts.
“(10) Exhibit 19 Spring Creek and Exhibit 1 of Enterprise each have a cross at the top of the People’s party ticket, but entirely outside of and to the left of the circle at the top thereof, and are each counted as a vote for the defendant, to which the plaintiff excepts.
“(11) Exhibits 6, 12, 13, and 18 of Spring Creek, and 2 and 4 of Blinsmon, are each marked with a cross in the circle at the top of the Republican column, three crosses on the name of A. J. Vallier, and one cross to the left of the name of C. Brakke, and are each counted as a vote of Brakke, to which plaintiffs excepts.
“(12) Exhibit 7 of Spring Creek is marked with a cross in the circle at the top of the Republican column, three crosses on the name of A. J. Vallier, and one cross to the right of the name of C. Brakke, and is counted as a vote for Brakke, to which the plaintiff excepts. •
(“13) Exhibit 2 of Egan, 14 of Elaudreau, and 2 of Eremont, are each marked with a cross in the circle at the top of the People’s party column, a cross opposite the name of A. J. Vallier on the Republican ticket, and the name of C. Brakke on the People’s party ticket is not erased, and were not counted for either of said candidates.
“(14) Exhibit 3 of Egan is marked with a cross in the circle at the top of the People’s party column, and also a cross in the circle at the top of the Republican column, a cross at the left of the name of A. J. Vallier, and the name of C. Brakke in the People’s party ticket is not erased, and was counted by the court for the plaintiff A. J. Vallier.
“(15) Exhibits 13 of Elandreau and 10 of Spring Creek are
“(16) Exhibits 2 of Clare, 10 Coleman; 4 Egan, and 17 Spring Creek are each marked with a cross at the top of the Republican party ticket, but entirely outside of the circle at the top thereof, and at distances varying from on -quarter of an iuch to one inch from said circle; except Exhibit 4 of Egan, which has two crosses at the top of the said Republican party column, one on the top edge of the circle, the main body of the cross being outside the circle and one of the diagonal liues of the cross extending across the top of and slightly within the circle, and the other about three-quarters of an inch above said circle; and each of said exhibits was counted for the plaintiff, A. J. Yallier.
“(17) Exhibits 1 of Egan, 2, 3, 5, 8, and 9 of Coleman, and 1 of Eremont are each marked with a cross in the circle at the top of the People’s party column, and have two or three crosses made with the official stamp directly on the name of C. Brakke on said People’s party ticket, except Exhibit 8 of Coleman, which has only one stamp on name of Brakke, and a cross to the left of A. J. Yallier on the Republican ticket, and were counted for A. J. Yallier. These crosses the court held to constitute erasures of the name of Brakke.
“(18) Exhibit 1 of Grovena has a very slight red blur in the circle at the top of the Republican party ticket, and is not otherwise marked, and was counted for the plaintiff A. J. Yallier, which the court construed as a cross made with the official stamp.
“(19) Exhibit 12 of Flandreau is not marked in any circle at the top, the name of A. J. Yallier on the Republican ticketis erased, and there is a cross opposite and to the right of the name of C. Brakke, and between said People’s party column and the column of the Independent candidates for county offices, and was not counted for either the plaintiff or defendant.
“(20) Exhibit 1 of Flandreau is marked with a cross in the circle at the top of the Republican column, a cross at the left of
“(21) Exhibit 3 of Crovena township is marked with a cross in the circle at the top of the People’s party column, the name of C. Brakke on said Peoxfle’s party ticket is erased, and the name of ‘A. J. Yallier’ is written under the name of C. Brakke so erased, and was counted for the plaintiff A. J. Vallier.”
Before proceeding to discuss these several findings, it will be proper to examine the provisions of the Australian ballot law, adopted by the legislature of this state, and determine the rules that should govern canvassing boards and courts in construing the same. That the legislature designed to and has made a radical change in the system of voting is too apparent to require discussion. The purpose of the change is apparently to provide a simple, easy and certain method by which an elector can indicate his intention in voting, and to prevent uncertainty by mutilation of the ballots, and also to secure to the elector the right to cast his yote uninfluenced and in secret. To accomplish these objects ballots are provided containing the names of all the candidates properly arranged in columns, and one of these is furnished to the voter by the judges of election, and the elector, in a booth secure from intrusion, is permitted t.o prepare his ballot by marking the spme in the manner prescribed by statute to designate the candidates for whom he pasts his vote. The manner in which he may designate such candidates is specified in sections 4, 6, .chapter 80, Laws 1893, in force in the .election of 1894: “The'voter, after retiring to the booth as provided in section twenty-five of said chapter, may mak,e a gross in a cjrcle j;o b.e printed fop that purpose at
It will be observed, from an examination of these sections, that the elector may adopt either of four methods in designating the candidates for whom he desires to vote. First. He may make a cross in the circle at the head of a party ticket, and in this manner vote the entire party ticket. In such case that ticket is full and complete, and constitutes his ticket. Second. He may make a cross in the circle at the head of the party ticket, and may erase on that party ticket, the names of the candidates for whom he does not desire to vote, and not supply the place of the erased name or names. He then votes the party ticket, except as to the candidates whose names are erased, and as to these the ticket is not filled. Third. When the elector has made a cross in the circle at the head of the party ticket, and erased the name of one or more candidates thereon, he may fill out his ticket in whole or in part by placing a cross to the left of the name of candidates on other tickets, thus making his ticket to consist of the names not erased upon his own party ticket, and the places of those erased filled by the name or names of candidates on other tickets. Fourth. If the elector chooses, he may omit the cross in the cir
The learned counsel for the respondent contends that a cross placed to the left of a name on the opposite ticket, although the party ticket has the cross in the circle at the head of the same, and the name on that party ticket is not erased, raises a doubt as to the intention of the voter, which should be resolved either in favor of the candidate who has the cross to the left of his name, or the vote should not be counted for either candidate. But we cannot agree with counsel in this contention. The effect of such a marking of a ballot having been declared by the legislature to be a vote “throughout” for the party ticket, it is not competent for the court to find any other intent.'
It is also contended that a cross without the circle at the top of a party ticket, a cross to the right of a name instead of the left, and the name erased and the name. of a candidate on another ticket written under the name erased, should all be regarded according to the intention of the party, as found by the court. Bpt we cannot subscribe to this doctrine. T¡he law has prescribed the manner in which an .elector may arrange his ticket, and what ac¡t he may do to designate the candidate ¡fior xwhom he desires to vote. His act must correspond with his intention, and unless it does the vote cannot be counted. The system devised is so simple that a map ,q£ sufficient intelligence ,to kno;w yhat a circle is, how to
With these preliminary observations, we proceed to examine the findings of the court to which exceptions were taken by the plaintiff.
It will be noth ed that in finding 1 six ballots were marked by the voters by crosses in the circle at the head of the Republican ticket, and no name erased thereon. They were not counted for either candidate for the reason that there was a cross opposite the name of the defendant. This ticket should have been counted “throughout” for the plaintiff, and hence the court erred in not so counting them.
By finding No. 2 the court finds that the cross at the head of the ticket was not in the circle, but about one-half inch therefrom. The law-says, “A voter may make across in a circle * *. * at the head of the ticket, over the ticket he desires to vote.” The voter is not authorized to make the cross elsewhere than in the circle, and when the cross is not so made the cross purporting to be at the head of the ticket should be disregarded. If the cross is not inside the circle, it is difficult to establish any fixed rule to govern judges of election as to how near or how far from the. circle the cross should be placed to entitle the vote to be counted. The court also found that a cross was made at the- right of defendant’s name. Had. this cross been placed at the left of defendant’s name, it would have been a vote for defendant. The cross at the head of the republican ticket not being in the circle, the ticket could not be counted for the plaintiff. But the cross, being placed to the right of defendant’s name, was not effectual for any purpose, as the law does not authorize a voter to designate a candidate for whom he intends to vote by a cross to the right
Finding No, 3 presents a question not presented by either of the others. There is no cross at the head of any ticket, but a cross is placed at the right of defendant’s name. These votes were counted for the defendant. This is not an an informality in marking, but is a total failure to mark the cross in such a manner as to entitle the vote to be counted.
Finding No. 4 presents a still different question. It is found that the word “treasurer” on the Republican ticket is erased, and the name of the defendant is written under the name of the plaintiff on this ticket. The court counted this ballot for the defendant. This was error. The law has neither provided for any such marking, nor can it be recognized. One of the purposes of the law evidently was to avoid mutilated or scratched tickets with names written in, and especially to avoid “pasters” — one of the great sources of fraud under the old system. It may be it was the intention of the voter to vote for the defendant, but he has not expressed that intention in any manner prescribed by the statute. The vote, therefore, should not have been counted for defendant.
The finding No. 5 of the court is clearly correct, and its conclusion that a cross made by the official stamp on the name of the plaintiff was an erasure of the name was also correct. If the act of erasure is such that the court can clearly see the voter has made an effort to erase the name, and intended in fact to erase it, any informality in the manner of doing it will be disregarded.
In finding No. 6 the defendant’s n§,me had opposite to it, to the left, a short diagonal line instead of a cross. The law pror vides for a cross, and hence this vote was improperly counted for the defendant.
Finding No. 7 shows there was no cross in or outside of the circle, but a circle within the circle. The cross is the distinguishing mark in our Australian ballot system, ancj. we j;hink it woplcj
In No. 8 the court finds that the mark in the circle at the head of the Republican ticket was a cross made with the official stamp. This we think was correct. If the intention was to make a cross in the circle, any informality in carrying that intention into effect, so long as the act was done in the manner prescribed by the statute, was properly disregarded.
The ballot in finding No. 9 should not have been counted for the defendant. The circles within the circle at the head of the ticket could not be construed to be a cross, and the cross to the right of the name was not effectual for any purpose. This vote should not have been counted for either party.
The court finds that in No. 10 each of the ballots had a cross at the head of the ticket, but outside the circle. These tickets were counted for the defendant. This was error for the reasons heretofore stated.
The court finds in No. 11 that five ballots were each marked with a cross in the circle at the head of the Republican ticket, the name of the plaintiff erased by three crosses upon his name, and a cross to the left of defendant’s name, and the same were counted for the defendant. In this we think the court was correct. A name may be erased by crosses made upon the same, thus showing an intention to erase it, as well as by drawing a line through it. One of Webster’s definations of “erase” is to “cross out.”
The court finds in No. 12 a cross in the circle at the head of the Republican ticket, the name of the plaintiff crossed out, and a cross at the right of the name of the defendant, and the ticket was counted for the defendant. This was error. It should not have been counted for either party, — not for plaintiff, because his name was erased; not for defendant, because no cross was placed to the
Finding No. 13 is that three ballots were marked by a cross in the circle at the head of the Peole’s party ticket, and the name of defendant was not erased, and a cross was placed opposite the name of the plaintiff. This ticket was counted for neither candidate. It should have been counted for the defendant, for the reason that his name was not erased, and hence the ticket was a ticket for the People’s party “throughout.” The fact that there was a cross opposite plaintiff’s name was of no importance, so long as the defendant’s name was not erased,
The court finds in No. 14 that a cross within the circle was made at the head of both the Republican and People’s party tickets, and a cross placed at the left of the name of the plaintiff This was correctly counted for the plaintiff, as the cross at the head of the two tickets was equivalent to a cross at the head of neither, and the cross to the left of the plaintiff’s name made it a vote for plaintiff.
The court finds in No. 15 that two ballots having no cross in the circle at the head of the ticket had a cross to the right of the name of plaintiff, and they were counted for him. This was error The cross, not being to the left of the name, was a nullity, and these ballots should not have been counted for either party. .
The court finds in No. 16 that four ballots had crosses at the head of the Republican ticket, but not in the circle. These were counted for the plaintiff. This was error. The cross, not being in the circle, was a nullity, and the ballots should not have been counted for either party. ■
In finding No. 17 the court finds seven ballots marked with a cross in the circle at the head of the People’s party ticket, three crosses made with the official stamp directly on the name of the defendant, and a cross to the left of the name of plaintiff. The crosses on the name of the defendant being in effect an erasure of the defendant’s name, these were correctly counted in favor of the plaintiff.
The court finds in No. 19 that there was no cross at the head of the Eepublican ticket, that the name of the plaintiff was erasedj and a cross to the right of the name of the defendant, and between said People’s party ticket and the Independent ticket, and the court did not count it for either. This was correct, as both the erasure of plaintiff’s name and the cross to the right of defendant’s name were nullities.
In finding No. 20 the court finds that the voter wrote his name upon the ballot, but counted it for plaintiff. This was error, as the name upon the ballot was unauthorized, and rendered it void. Spurgin v. Thompson (Neb.) 55 N. W. 297.
The court finds in No. 21 that there was a cross in the circle at the head of the People’s party ticket, the name of the defendant erased, and the name of plaintiff written under the name of defendant. This was counted for plaintiff. This was error. No elector is authorized, as before stated, to write the name of a candidate upon the ballot. The names are all printed, and a party wishing to vote for a candidate on another ticket must designate the candidate intended to be voted for by a cross to the left of the name, and he can indicate his intention in no other manner. This vote should have been excluded.
It is contended by counsel for respondent that the judgment in this case should not be reversed, for the reason that there are only six ballots — those mentioned in finding 1 — sufficiently described to be reviewed by this court on this appeal, and that there are three ballots marked in the same manner (finding No. 13) not counted for the defendant that should have been counted for him (if the court finds the six ballots in finding No. 1 should have been counted for the plaintiff), thus leaving the defendant with one majority in any event, and that consequently the error, resulting in no prejudice to the plaintiff, would not be reversible error. But-
There was much discussion on tbe argument and in the briefs of counsel as to tbe duty of judges of election and courts to carry out tbe intention of tbe voter. Tbis is true to a certain extent; but, as tbe legislature has required tbe elector to express bis intention by certain well defined markings upon bis ballot, bis intention must be determined by these markings, and not by the uncertain and undefined ideas of tbe judges of election, or by tbe courts, as to bis intention. The legislature has clearly and precisely defined tbe manner in wbicb the elector may designate the candidates for whom be desires to vote, and has prescribed definite and fixed rules to govern tbe voter in designating such candidates. As before stated, tbe system is simple, and there is no difficulty in the elector’s complying with tbe rules. In our view, it is neither tbe duty of judges of election nor tbe courts to fritter away tbe benefits of tbe system by strained efforts to get at tbe intention of tbe voter in any manner other than by following tbe rules prescribed by tbe legislature. If tbe elector does not take interest