Brown v. Dakota Pub. Ser. Co.

Citation68 S.D. 169,299 N.W. 569
Decision Date15 August 1941
Docket Number8426
PartiesA. H. BROWN, et al, Appellants, v. DAKOTA PUBLIC SERVICE CO., and the City of Mobridge, Respondents. and Schirber, et al, Intervenors and Respondents.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Walworth County, SD

Hon. A. R. Denu, Judge.

#8426–Reversed

W. M. Potts, Mobridge, SD

Byron S. Payne, Pierre, SD

for Plaintiffs and Appellants.

Martcns & Goldsmith, Pierre, SD

for Defendant and Respondent.

O'Keeffe & Stephens, Pierre, SD

Attorneys for Intervenors and Respondents.

Opinion filed Aug 15, 1941; Rehearing Denied Sep 27, 1941

BECK, Circuit Judge.

This cause involves an election contest instituted by appellants, as electors and taxpayers of the City of Mobridge, under the provisions of SDC Chapter 16.19. The picture in the background, as gathered from the record, is briefly as follows:

Prior to 1939, a utilities company known as the Northern Power and Light Company had been operating at Mobridge, South Dakota, under a franchise permitting said company to maintain equipment upon the streets and alleys of said city, and to engage in the business of vending electric light, heat and power. Such franchise expired in the year 1937, but said company continued to operate in said city after the expiration of its franchise. This company operated extensively in both North Dakota, and South Dakota, and maintained a district office in the City of Mobridge. It had invested large sums of money in equipment used in the said city, and employed approximately forty men in connection with its business and operations at Mobridge.

On June 5, 1939, said company submitted to the City Council of Mobridge, a proposed franchise ordinance and applied for its adoption. This ordinance was approved by the City Council and submitted to the electors of said city at a special election held on August 8, 1939. At said election the vote was 593 for the franchise and 643 against it. The Northern Power and Light Company paid the expenses of this election. At a subsequent date, the said company merged with another company, and thereafter the business was conducted by the Dakota Public Service Company, respondent herein as successor to the Northern Power and Light Company.

After the election of August 8th, certain civic organizations, business men and citizens of Mobridge, became interested in having the matter again submitted to the voters of said city, and petitioned the City Council to resubmit the franchise issue. A copy of this petition was published in a local newspaper and contained the statement: We have furnished the company with a copy of this petition and asked them if they would present and submit an ordinance at this meeting, and to pay all the expenses of a special election if the matter is again submitted to the voters.”

On September 5, 1939, the respondent Company applied to the City Council of Mobridge, for the granting of a franchise to it, in substantially the same form as applied for by its predecessor. The franchise ordinance was approved by the City Council and a second special election called to be held November 7, 1939. At this election, the vote, as canvassed, was 712 votes in favor of the franchise and 657 against it. The City Council determined that the ordinance had been adopted.

Within the time allowed by law, the appellants, as taxpayers and electors of the City of Mobridge, with the consent of the Circuit Court instituted this proceeding, making the power company and the city defendants. Certain other taxpayers and electors were permitted to intervene as defendants. Issue was joined and the case was tried and a judgment of dismissal entered. An appeal was taken from such judgment.

The appellants have incorporated in the record eighteen assignments of error, which raise but three general questions of law and fact, that we deem worthy of consideration.

It is first contended that the respondent public service company’s predecessor, having paid the expenses of the first election; and it having been stated in the published petition asking for the second election that the company would be asked to pay the expense of such election, that it must be inferred that the company agreed to pay the expense of the election in question; and that this amounted to fraud and bribery and should be held to render the election void.

A careful examination of the record fails to reveal any promise on the part of the respondent company to pay the expenses of the second election; on the other hand, the record affirmatively shows it has not paid the same, nor have we been able to discover any statute or rule of established public policy that has been violated by the respondent in connection with such election.

It is next contended that the election should be declared void because of conduct on the part of election workers amounting to fraud, bribery and coercion. This was a very heated election. Workers on both sides manifested great activity and enthusiasm. Upon examination of the record, we fail to find, however, any acts or conduct upon the part of the workers on either side that amounted to fraud, corruption or coercion. The trial court has found, in effect, there was none, and such finding finds ample support in the record. We find no merit in such contention.

The remaining and more serious contention of appellants involves a construction of the statutes relating to absentee voters. The ultimate question to be determined is: Should such statutes be held to be directory or mandatory?

The election boards accepted and canvassed a total of 1369 votes, of this number, 239 were cast under the provisions of SDC 16.0606. This statute provides that an elector who expects to be absent from his home precinct on election day or who, because of illness or some physical disability is unable to attend the election, may vote an absentee ballot; and further provides that such elector may, after a specified time, apply for a ballot to be sent to him, at a designated place in a sealed envelope, or to be delivered to him personally. The statute further provides: “Such application for official ballot shall be in writing, subscribed by the applicant, and filed with such auditor or clerk, and may be made by letter or upon blanks furnished by the auditor or clerk, who shall preserve a record of the name, post office address, and voting precinct of each applicant and shall send each such written application by registered mail to the superintendent of the election board of the home precinct of the applicant named therein. Such application need follow no specified form but must be sufficient in substance to show the identity and residence of the applicant, that he expects to be absent from his voting precinct on such election day, or will be unable to attend his voting precinct on such election day, or will be unable to attend his voting precinct on account of illness or other physical disability and desires and intends to vote at such election; and in such application the applicant shall state the place to which he desires such ballots sent by mail. Upon receiving such application from a duly registered elector, the auditor or clerk shall inclose one of each of the official ballots in an envelope together with a return envelope upon which shall be printed in bold type the words “Official Ballot to be voted at ________ precinct, in _________ county, South Dakota, at the election to be held therein on the day of 19_____,” and such envelope shall then be sealed, and if not delivered to the bearer of the application, or to such applicant personally, shall be forthwith deposited in the post office by such auditor or clerk, addressed to such applicant at the place stated in his application, with postage prepaid thereon. The statute also requires that a notary certificate, voter’s affidavit and identification slip be also included with the ballots.

SDC 16.0607 provides for the manner of voting and directs that the ballots when voted shall be transinitted to the several superintendents of election.

The record in this case establishes that the general practice followed was to deliver official ballots and other necessary documents to election workers, without any application of any kind having been filed with the city auditor. No record was made by the city auditor of any applications received by him; and no such record was available for public inspection. Election workers, armed with a liberal supply of ballots and other necessary documents, called upon voters and had them sign applications and, at the same time and as a part of the same transaction, mark their ballots, sign the identification slips and other papers and they were then enclosed in the return envelope and sealed up, except the application and one identification slip were not placed in the envelope, but were attached thereto. The envelopes were handed to such workers who delivered the fruits of their labor to the city auditor, who in turn delivered the same to the election boards on election day. Little or no attention was paid to the provision limiting the privilege of voting in this manner to absentees or persons physically unable to attend the election; and little heed was given to the secrecy of the ballots.

The record affirmatively...

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3 cases
  • Brown v. Dakota Pub. Serv. Co.
    • United States
    • Supreme Court of South Dakota
    • September 27, 1941
  • Brown v. Dakota Public Service Co.
    • United States
    • Supreme Court of South Dakota
    • August 15, 1941
    ...299 N.W. 569 68 S.D. 169 BROWN et al. v. DAKOTA PUBLIC SERVICE CO. et al. (SCHIRBER et al., Interveners). No. 8426.Supreme Court of South Dakota.August 15, 1941 Rehearing Denied September 27, 1941. Appeal from Circuit Court, Walworth County; A. R. Denu, Judge. Election contest by A. H. Brow......
  • Walton v. GMAC, 8393
    • United States
    • Supreme Court of South Dakota
    • August 15, 1941
    ...... Appellants. . . South Dakota Supreme Court. Appeal from Circuit Court, Brown County; Hon. Howard ......

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