153 N.W. 962 | S.D. | 1915
Contestants and appellants, proceeding under article 13, c. 19, Pol. Code, contested, in the circuit court, the result of a certain city election as declared by the board of canvassers. The judgment of such dourt being adverse to them, they have appealed therefrom to this court. The election in question was held to determine whether intoxicating liquors should be sold at retail in such city.
“The judges in counting the votes shall endeavor to' record the intention of the voter.”
Section 1923, Pol. Code, provides:
“No. elector shall place any mark upon his ballot by which it may afterwards be identified as the one voted by him.”
An examination of the record herein convinces' us that the trial court was. of the opinion: first, that a ballot should be cotint-
“There, ,wqs much discussion on the, argument and .in the ■briefs of counsel as- to the duty of judges of election and courts to carry out the. intention of the. voter. .This is true to a certain extent ; .but, as. the Legislature has required the elector to express his intention .by certain well-defined markings upon h-is ballot, -his intention must be determined by these markings, and not by the uncertain and undefined ideas of the judges of election, or by the courts, as .to his intention. The Legislature .has clearly and precisely defined the manner in which the elector may designate the candidates for whom he desires to vote, and has prescribed definite and fixed rules to govern the voter in designating such candidates. As before stated, the system is simple, and there is no difficulty in the elector’s complying with, the rules. In our view,, it is neither the duty of judges of election nor the courts to fritter away the benefits of the. system by strained efforts to get at the intention of the voter in any manner other - than by following • the rules prescribed by the Legislature. If the elector, does not take interest enough in his vote to follow these simple and easily understood rules, he,.can complain of. no. one if his vote is not. counted. A system so simple and plain, and which can be. .comprehended by any elector of ordinary intelligence in a few minutes, must be ■followed. There can, be no excuse for not following it.”-
In Treat v. Morris, 25 S. D. 615, 127 N. W. 554, which was also a case where a.question of sale of intoxicating liquor was voted on,..and,.voted, at- a time and under -circumstances -making lawful a- marking, either., upon the word “Yes”, or-“No” or- in fhe square, before -one of .such-words, .-this court said-:-
“It ;has. heretofore..been held by this courts on.-se-ver-al'.-ot>*103 ■ casions, as well as in' many other jurisdictions, that the. voter’s intention, as comprehended within the meaning of such sections of the statute, is an intention to.mark his ballot according to .law, ■and is not an intention to vote for-an y particular'.person,-or in any particular way on any question submitted to vote.. The- law provides how the elector shall express his intention by the marking of his ballot. Where an elector, deliberately marks- his ballot some other way than' required by law,, although-. his inter.tio’n might be gathered therefrom as to how he intended to vote, -still his vote should not be counted because he has not attempted' to mark his ballot in the manner the statutes says he must. Where ‘an elector has attempted to make the word ‘Yes’ or ‘No,’ or’ attempted to place a cross in the circle, and by reason of a -defect in the stamp- or pencil, not properly making a clear cross, or some like occurrence, then there in an intention to' mark the ballot in accordance with the method prescribed by statute, and under -such circumstances it should be counted, -if it can "be gathered from the ballot how he intended to vote; but where he actually makes the cross on some other part of the ballot, other than where the law says he 'should make it, the vote -should not be counted.”
In Church v. Walker, 10 S. D. 90, 72 N. W. 101, decided in 1897, this court said:
“If the cross outside -the circle was made by mistake, the elector should have procured another ballot. On failure • to do so the judges of election should have presumed it was made as an identifying mark, and should have declined to count the ballot for any candidate.”
Courts and election judges should strive to determine and . carry out the intent of the elector when- satisfied that the elector has endeavored to express such intent in the manner prescribed by law or by directions found upon the-ballot, and for that purpose,- should presume every marking .found where the X should be to be a marking intended as a X unless the contrary is clear. Upon the other hand, no mark, whether it'be a X or not, which has been made- upon a -ballot at an unauthorized place, can properly be 'referred to to assist in! determining the intent' of! the voter;' and, -where it appears that a mark was ■ intentionally made ■by the, voter:-at an unauthorized .'place,'it should be! held to be. áh
Certainly no elector who- failed to- follow such instructions and to thus comply with the law can complain if his ballot is not counted as a vote, and other electors have no more cause to complain because such ballot is not counted than they have to complain because some -other -elector failed to- go to the polls and vote. -
It -is undisputed that there are 23 -ballots exactly like the first group above mentioned, excepting that the.X’s were on the word “Yes.” There are also'6 ballots exactly like the second group above mentioned, -excepting that the X’s were on the word “Yes” and in' the square to the left of such word. The above 29 ballots should not have been counted as votes. Respondents complain of 7--ballots which are marked with more than one X in the square in front of the words “Yes.” Six of these (Exhibits H-11, K-65, K-54, J-18, J-22, and J-24) were properly counted in the affirmative, because, while the markings thereon are not to- be commended, being two crosses within the square or cases where the marking is more or less blurred, yet the intent of the voter to make a cross within the proper square is perfectly clear. The other (Exhibit E-3) was improperly counted; it had two X’s stamped above the printed question. The trial court improperly counted, as a vote in favor of the affirmative, one ballot (Exhibit E-2) having the X marked- properly with lead pencil, and to the left • and outside of the squares the figure “10” marked with apparently the- same lead pencil. The trial court improperly counted, as votes in favor of the affirmative, two ballots- (Exhibit E-7 and Exhibit E-8) each having, in the square before the word “Yes,” a mark in no manner resembling a X. These marks,were made.with pencil, and clearly show that neither elector was attempting to .make a X. The trial court improperly counted, as- a vote in.favor of the affirmative, a ballot .(Exhibit J-20) marked with a X in the square before the wo-rd “Yes,” but also-- havin-g-in said square, the writtem letter “Y.” The trial court improperly counted, as a vote in the affirmative,-a ballot (Exhibit K-59) hav.-ing a X stamped -with the official stamp above the letter -“1” in the- word “official.” The- trial court improperly-counted, as- a vote in-the 'affirmative,- a-.ballot (Exhibit- C-24) .having the--.X so placed-.-that the. junction-of the X was exactly oil the-line bó-
The judgment of the trial court is affirmed.