Briggs v. Ghrist

• Decision Date: 31 January 1912
• Citation: Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321 (S.D. 1912)
• Parties: G. C. BRIGGS, Plaintiff and appellant, v. S. V. GHRIST, Mayor, Fred J. Hellmuth, as City Auditor, and John T. McCullen and others, as members of the City Council of the City of Miller, et al. Defendants and respondents.
• Court: South Dakota Supreme Court

28 S.D. 562, 134 N.W. 321 (1912)

G. C. BRIGGS, Plaintiff and appellant v S. V. GHRIST,

Mayor, Fred J. Hellmuth, as City Auditor, and John T. McCullen and others

as members of the City Council of the City of Miller, et al

Defendants and respondents.

South Dakota Supreme Court

Appeal from Circuit Court.Hand County, SD

Hon. John F. Hughes, Judge

Reversed

Lauritz Miller, F. R. Fisher, J. H. Cole

Attorneys for appellant.

H. I. Bushfield, John Pusey

Attorneys for respondents.

Opinion filed January 31, 1912

WHITING, J.

This is an election contest contesting the declared result of an election held in the city of Miller, upon the question: "Shall intoxicating liquors be sold at retail?"The canvassing board found that there were 369 votes cast, of which it returned 186 as cast in favor of the sale, 182 against, and 1 blank.Upon the trial plaintiff offered in evidence all the ballots cast at the election and then rested his case.There was no dispute as to how the several votes had been counted by the canvassing board, and plaintiff contended that certain ballots counted in favor of the question should not have been so counted.After plaintiff had rested his case, the defendants offered no evidence except to explain the cause of peculiar markings on the ballots and to sustain an affirmative defense, to-wit, that there were three votes cast by persons not qualified voters, and that such votes were cast against the question submitted.The trial court made the contested ballots a part of its findings and, as conclusions of law, found that one of such ballots should not have been counted in favor of the question submitted but that all the others were properly so counted.It further found that there were three illegal votes cast, but did not find for which side such votes were cast. though it did find what the illegal voters testified in relation thereto, As a final conclusion it found that a majority of the votes were cast in favor of the question and entered judgment accordingly.This appeal is from such judgment.

Appellant insists that the trial court erred in its conclusion that all the contested ballots save one were rightfully counted by the canvassing board.There are several of these ballots so marked as to raise serious questions concerning whether or not they should be rejected as bearing distinguishing marks; but, under all the evidence received, we believe the conclusion of the trial court should be sustained except as to ballot Exhibit L3.The trial court was clearly in error in counting this ballot in favor of the question submitted.Under the statute of this state (section 2856, Rev. Pol. Code), the question submitted is printed upon the ballot, and to the left of said question are printed the words "yes" and "no"; and any one desiring to vote in favor of the question should mark the word "yes" with an "X" and if desiring to vote against it should mark the word "no" with a cross.It has, however, been held that, where squares have been placed before the word "yes" and "no," the voter may mark the proper one of such squares, instead of marking the word opposite.Treat v. Morris, 25 S.D. 615, 127 N.W. 554.The party casting ballot, Exhibit L3, had almost completely canceled and effaced the word "yes" by drawing across the whole thereof several horizontal pencil marks.He had also placed across said word, in pencil, an "X."The markings were evidently made with the same pencil, and it is impossible to determine Which was made first.If the canceling was first, the effect thereof was to indicate, in a manner not authorized, an intent to vote "no," or else an attempt to deliberately mark the ballot for an unlawful purpose.An "X" placed across the canceled word would be a nullity.If the "X" was first placed upon the ballot, then the effect of the horizontal lines was to efface and cancel both the word "yes" and the "X."No interpretation can be given this marking that would authorize its being counted either for or against the question.

The result is that under the findings of the trial court, which findings are in no manner questioned, when plaintiff rested his case, it had been proven that at such election 369 votes were cast, 184 in favor of the question, 182 against, 1 blank, and 2 so marked that they could not be counted either way.It conclusively appeared that the question had not received, in favor thereof, a majority of all the votes cast, and, under the established law of this state, the question had failed to carry.Treat v. Morris, supra.

Defendants, when they attempted to overthrow the result of the election as shown by the ballots cast thereat, became, for the purpose of establishing such defense, the contestants, and assumed the burdens of proving, not only the fact that illegal votes were cast, but also as to which side such votes were cast for.

The court found, upon undisputed evidence, that there were three illegal votes.As to how these votes were cast was disputed.We agree with the Supreme Court of California in holding, in the case of illegal Votes, "very clear evidence should be furnished as to how one did vote before his vote can be deducted from the total of any candidate."It is quite probable that, not only the trial court, but counsel for both parties, recognized this rule; and that this is the reason that no finding was made as to how the votes were cast.The evidence thereon was conflicting.It does not appear that defendants requested any finding thereon, and the defendants have not appealed.We must therefore treat this case exactly as though no evidence had been offered upon the question of how these men voted, or as if the court had expressly found that it was unable to determine the question.

In Paine's Law of Elections, § 513, it is held:

"Where illegal votes have been cast, the true rule is to purge the poll, by first proving for whom they were cast, and thus ascertain the real vote; but, if this cannot be done, then to exclude the poll altogether."

In a note to such section it is said:

"Four distinct courses will be open to the court: ...(1) To reject the entire poll; (2) to disregard the illegality; (3) to make a pro rata reduction of the vote of each candidate; and (4) to take all the illegal votes from one candidate."

The dangers of each method are noted, and the conclusion is reached that:

"In the total absence of proof tending to show for whom illegal votes, sufficient in number to affect the result, were cast, the duty of the court would seem to be, as wisely as possible, between a disregard of the illegality, and a rejection of the entire precinct vote."

We certainly could not agree that the vote of a precinct should be rejected unless the evidence tending to show that the election officers were knowing to the illegal voting and the purity of the whole vote thus questioned.

In McCrary on Elections(4th Ed.) § 495, it is said:

"In purging the polls of illegal votes, the general rule is that, unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election division, and not from the candidate having the largest number.Of course, in the application of this rule such illegal votes would be deducted proportionately from both candidates, according to the entire vote returned for each."

A case cited by McCrary, and which is recognized as a leading authority upon the question before 283,is that of People v. Cicott, 16 Mich. 283, 97 Am.Dec. 141, decided when the bench of the Supreme Court Justices Cooley, Campbell, and Christiancy.In this case each of these judges wrote an elaborate opinion, and the question before us was most fully discussed by Justice Cooley, and he holds that, in harmony with a statute such as we have (section 1927, Rev. Pol. Code), requiring of the canvassing board:

"If the ballots in the box shall be found to exceed in number the whole number of votes on...