*1 adduced and based on the the evidence instructions Under well have for on the jury may plaintiffs theory found given, in Count I of the amended negligence alleged complaint failed to the contract- concluding city properly supervise or in to manholes the course of con- securing openings during struction.

I would affirm the judgment.

THOMS, ANDERSEN, Appellant Respondent N.W.2d

(235 898) (File 5, 1975) Opinion No. 11622. filed December rehearing January

Petition for denied *2 Falls, H. for Rollyn Samp, plaintiff Steve Sioux Jorgensen, and appellant. Vrooman, Falls,

David V. Sioux for defendant and respon- dent.

WINANS, Justice.

The select will both priceless right those officials who local, and serve us at the state and national levels has govern been a nearly treasured element of our form of for government two hundred Our ancestors and our have years. contemporaries a win and heavy too often toll order to this paid preserve democratic ideal. Current civil and the woman’s rights struggles of an earlier well suffrage part century movement of this as as the recent extension of the vote to are all eighteen-year-olds signifi- cant in a chapters long sometimes narrative of the painful history of the vote the United States. We are concerned deeply when we hear of a apathy part many on growing exercise at vote both elections. We are general special when dismayed conscientious electors disenfranchise themselves ballots, inadvertently. their own albeit We are far by spoiling disturbed, however, more when those who are sworn to abide by our laws and whose it is to ballots of the duty safeguard .the are needed are longer electorate until no careless and in their to a where the negligent obligations point will people’s be thwarted and an might seriously elective office be might awarded to one not selected for it the voters. Such appears to be the case before us today. 5, 1974,

In the November election the results of the general race county for auditor in Minnehaha were close County enough loser, warrant a a Donna petition for recount apparent Thoms, course, candidate. In due provided as for Republican 12-21, a in SDCL three board was On person recount appointed. 22nd the November Board to examine and count the attempted absentee ballots for Precinct 3-4 when box but the ballot for this was precinct were found produced opened no ballots inside. Upon discovery this the Board’s chairman set out in disconcerting search of the aid missing ballots with the of the county auditor who had not been a candidate for reelection located, were at last in an rolled official wrapper, stamped with an official and sealed with stamp They the seals provided. been tossed under a counter the county auditor’s office with together the official stamps election and the unused election materials. court held proceedings subsequently was deter- *3 mined that when the precinct election found superintendent the roll of ballots was too for the ballot box large provided for their return she had delivered them to the auditor from the apart ballot box when she made the rest her of returns the early on of November He morning 6. took them her from with the along election materials she returned and tossed them all under the counter. There they were found than two weeks later by more the Recount Board chairman. Upon locating them he brought them, sealed, still and wrapped to the recount room where all three Board members then not to them agreed include in the later, seems, recount. Incredible though it days several an almost identical incident occurred with the regard to absentee ballots from Precinct 10-2. Those missing ballots were also discovered in the' same area of the auditor’s office as were the ballots from Precinct 3-4. Again the Board felt that should they not be included in the recount. Eventually, both sets of disputed ballots were removed from the recount room and placed in a ultimately vault, locked box in the auditor’s the the key to box left in being an unsecured desk. of the Recount Board’s refusal to count and

Upon learning include the from the questioned absentee ballots two total, their candidate for a petitioned Thoms the circuit court writ of certiorari to review its the Board’s execution of mandate.

Judge Christensen at first an oral order to the Board to gave count the but the had taken any ballots revoked before Board action. A held in December and and the hearing January was not to count decision of the Recount Board the

Court found the Board’s decision was correct the disputed by a winner over Donna Thoms Gwen Andersen the declaring 18,688 18,705 be affirmed. should vote of the circuit court Plaintiff decision foregoing From the court we the action of the circuit reviewing Thoms appeals. the Recount Board’s in affirming find that it acted properly However, since it was to count the ballots. decision not more than 200 electors disenfranchising to avoid possible entirely ballots themselves in official canvass place by using recount, of the election we reverse confirmation for further not inconsis proceedings remand to the circuit court with this opinion. tent of evidence found not one “scintilla

The circuit court involved faith, of a criminal nature here” misdoing bad fraud or it and. us that this is testimony and it clear from the before seems sets of were intact entirely It is that both probable so. left when delivered to hours of November 6th early morning from counter, beneath auditor’s dropped the courthouse lay inexplicably weeks there through two-to-three room, unnoticed, in the recount sojourn through their through their travels finally through their in the semi-safe vault stay us. said that this probability the circuit court and to We have to warrant the inclusion of the does exist but this is not sufficient we many jurisdictions count. The rule of hold ballots in the vote *4 Davis, 1899, v. South Dakota. Mentzer in In also to be the rule “ 528, 557, Court said ‘that Supreme Iowa 80 N.W. the Iowa count, is on him who would discredit the official before the onus the best evidence who has been to the ballots as of resorting elected, been with that care to show that these have preserved been with and tampered which the of precludes suspicion having course, alteration or Of this does not change.’ the of opportunity all beyond suspicion, mean must be they proven genuine that was no that possibility they however nor there groundless, * * * What is meant is that tampered have been with. might to persons shall not be so the reach of unauthorized they exposed a of been having changed as to afford reasonable their possibility Crockett, 1899, with.” McMahon 11, In 12 S.D. or tampered “* * * is upon 80 N.W. we held that the burden the contestant to show with a degree reasonable of that the certainty nor tampered ballots have neither been with within reach placed of unauthorized persons, before are admissible in evidence to returns, the official disprove or action of a board impugn canvassers.” While other in this same language opinion might seem to force give that it is position only necessary to demonstrate a “reasonable that the have probability” not (cid:127)been in exposed unauthorized order to persons sustain their we in fact integrity, believe that since the or proponent contestant must show that the ballots have been properly guarded personnel actually authorized what demanded is in a effect that no showing reasonable possibility existed of the ballots in having any fashion been altered. This is in each instance a question of fact. We cannot find that the lower court was clearly in erroneous finding no question longer suitable for a recount view the incredible manner in which they in. had been mishandled. We would have been had surprised the finding been otherwise.

When the circuit court affirmed the recount vote board’s not to include the missing ballots also confirmed the election of Andersen, Gwen candidate, the Democratic as county auditor based upon recount absent ballots from the two In'so question. more than doing two hundred electors had their properly cast votes disregarded no fault of through their own. weighing equities the circuit court decided in rightly of the box, favor of the integrity ballot but at the expense of the voters’ franchise. This was necessary not and we think that in so doing court below erred. It is entirely possible to safeguardi the requirements of absolute ballot security and at the same time: give equitable recognition to the of the intent voters. In 1899 the North Dakota Supreme dealt, Court before it a case which alia, inter with ballot boxes not properly after supervised an election and it there held:

“In both precincts there was an entire absence of offi- cial custody fact, of the ballot boxes. This taken con- nection the further fact boxes were within with the reach of unauthorized persons period for a days court, prior production their in uur judgment *5 destroyed evidence, their probative weight as the best therefore, cannot, impeach be allowed

and officers, which was precinct votes by canvass of the two political of the representatives as the made them of the under the observation in and public, parties, canvass, official as rival The friends of. the candidates. board, will stand therefore the canvassing declared v. Pep and Lee.” of Center Howser as to precincts at 1899, N.D. 79 N.W. 1018 1020. per, Crockett, we that the results similarly held supra, McMahon be assailed with ballots official canvass could not are and we hold opinion We therefore of the unlawfully kept. the circuit court to have substituted official today ought that 10-2, the absentee of the two 3-4 and precincts, canvass of ballots a and in recount of the ballots themselves place decided after only to have been the canvass count ought election into on two sets of been taken these did this it was in consideration. Because the circuit court not do and we remand this case error in election confirming may again court in order that it decide the results of election results. after it has included the official canvass and in Affirmed in reversed part part.

DOYLE, BIEGELMEIER, retired, J.,C. concur. J., COLER, JJ., WOLLMAN concur dissent part part.

BIEGELMEIER, retired, DUNN, C. for C. sitting J., J. WOLLMAN, part, dissenting part). (concurring Justice I would reverse remand with directions that the trial court order the recount board to count the absentee ballots from 3-4 and 10-2. 12-21-1 states

SDCL that: “The intent of the of this provisions chapter a and correct of the true procure speedy determination election, and actual at an count all cast which *6 face, ballots are valid on their and all provisions, of this shall be chapter liberally construed to that end.” Rank, In the 54, 850, case of v. Healey 82 S.D. 140 N.W.2d this court stated that:

“The duties of a recount board are minis- county terial in nature and it has no or judicial quasi judicial Lawrence, 185, functions. Smith v. 2 S.D. 49 N.W. 7. The board has no other or duties than to recount powers ballots, the result and make a certify separate * * *” ballots, distinct certificate as to if any. 58, 82 S.D. at 140 N.W.2d at 852.

It should be noted that plaintiff not to discredit or attempting overturn the official returns or to the action of impugn the board n Indeed, canvassers with respect precincts 3-4 10-2. plaintiff is willing the results of the official accept canvass with respect to these two precincts. her offer of proof, plaintiff if argued that the absentee ballots from these two were precincts opened counted and if the number of votes received two candidates for the office of auditor corresponded with sheets, number shown on the tally return sheets and official canvass, the conclusion would be inescapable the ballots not been 484, with. See tampered Howser v. 8 N.D. Pepper, N.W. 1018.

After the recount task, board has completed its the circuit court on review can determine after inspecting the ballots and the other considering evidence submitted by plaintiff concerning care, custody and appearance of the ballots whether their condition is such as to free them from suspicion. Tschetter v. 604, Ray, 796; 28 S.D. Fowler, 134 N.W. 363, Althen v. 35 S.D. 152 N.W. 337. If the trial court is not satisfied that the ballots were not with after tampered their delivery to the auditor’s office, then the official canvass can be looked to to determine the outcome of the race in the two precincts question. McMahon Crockett, 11, v. 12 S.D. 80 N.W. 136.

COLER, (concurring part dissenting part). Justice I agree with the majority insofar as it would reverse opinion holding the trial court the voters of the disenfranchising directions that I would further remand with two but themselves should have been counted. the ballots wherein, out, as he points with Wollman I concur Justice as to the to be purpose 12-21-1 is the controlling provision SDCL 12-20-35, add, however, that SDCL recount. I would served court, including numerous decisions of this as well as the Crockett, 11, 136; 80 N.W. Tschetter 12 S.D. McMahon *7 Fowler, 1912, 604, 134 N.W. 796 and Althen v. 28 S.D. Ray, 337, 1915, 363, mandate that the clearly S.D. 152 N.W. Even in v. Pepper, are to be received in evidence. Howser 1018, 1899, 484, cited by majority opinion 8 N.D. 79 N.W. were in all of the challenged in of its support position, where court evidence and it was in those that only precincts therefore, evidence, and, the best the ballots tainted not found official, canvass, evidence, used secondary it in precincts. determine the result of the election those as SDCL SDCL 12-20-20 and 12-20-21 do presume, 12-20-32, 12-21-24, election officials compliance by 12-20-34 and laws, will be sworn to those so that the voted ballots uphold in ballot which are sealed and delivered to the placed boxes There was an in how irregularity of election. person charge 3-4 and 10-2 fault these ballots were handled but the was not found to. be criminal in nature the trial court. The by * * * the ballot boxes county only required keep auditor is “to received”, 12-20-32, and in the same condition as when SDCL not, courts, clerk had the of formerly duty as was the who boxes, of the ballot them possession required specifically place in a vault or other inaccessible to but an authorized place anyone 12-20-33, 118, 200, person. SDCL Ch. S.L.1974. repealed § The ballots have never been reviewed to ascertain whether they or not were with and that tampered determination should be made. The notes that the trial court found majority opinion faith, there is not one “scintilla of evidence of bad fraud or aof criminal nature involved here.” That can misdoing finding be if the only supported ballots themselves are reviewed. As stated this court in Tschetter v. Ray, supra: “While evidence where and how the showing boxes had been cared for since envelopes election showed lack care that be such boxes proper given should we the trial court was envelopes, yet fully believe such exhibits for the of as- justified receiving purpose what these exhibits themselves certaining would tend 607, 28 S.D. prove.” at at 797. N.W. Fowler,

In Althen v. supra, established following precedent Tschetter v. this court overruled the trial court and Ray, supra, ordered the ballots to be received in evidence because:

“* * * the ends of demanded justice that it trial [the boxes, receive in evidence and the several open court] the matter of the leaving of the ballots to be counting determined thereafter when to such properly presented court.” 35 S.D. at 152 N.W. at 337. decisions,

I these submit that 'with SDCL 12-20-35 and coupled 12-21-1, ballots, a review the whether require or not were extent, result, boxed and to this not I though might change majority dissent from the opinion.

LARSON, LARSON, Respondent Appellant N.W.2d

(235 906) (File 5, 1975) Opinion No. 11653. filed December