Drinkwater v. Nelson
| Decision Date | 11 March 1922 |
| Parties | DRINKWATER v. NELSON. |
| Court | North Dakota Supreme Court |
The evidence sufficiently shows that the notice of contest was served within 20 days after the canvassing of the votes.
Chapter 121 of the Sessions Laws of 1919, which provides for the return and care of the ballots cast at an election for use in case of contest, is construed and held to render the ballots admissible under ordinary rules of evidence in an election contest though election officers and the county judge, who is made the custodian, may have omitted some duty.
Where the admissibility of ballots is objected to on the ground that the bundles show that the seals are broken and that they bear other evidences of having been disturbed, the trial court, having an opportunity to inspect the bundles, is in a more advantageous position to determine whether they had been tampered with than is an appellate court, and its ruling will not be reversed, unless clearly erroneous.
Opinion evidence as to the likelihood of error in the counting of ballots by election officials is inadmissible.
The evidence in regard to individual votes, excluded on the ground of nonresidence and alienage, is examined, and it is held to support the findings of the trial court to the extent of a difference of at least four votes in favor of the contestant.
Where two election contests are tried together, partly upon the same evidence, the separate notices of contest and the answers determine the issues, and evidence admitted in one contest which has no relation to the issues presented in the other cannot be considered in connection with the latter, and the denial of a motion made at the close of the contestant's case to amend the answer so as to broaden the issues is not error.
Appeal from District Court, Burke County; Chas. M. Cooley, Special Judge.
Contest by Ed Drinkwater against Andrew Nelson to determine which of the parties was duly elected sheriff of Burke County, N. D. Judgment for the plaintiff, and the defendant appeals. Affirmed.
McGee & Goss, of Minot, for appellant.
Bangs & Robbins, of Grand Forks, for respondent.
Election Contest. This is an appeal from a judgment rendered in favor of the contestant. The contest was instituted by the service of notice under section 1046 of the Compiled Laws of 1913. Proceedings were instituted, not only against the defendant and appellant named in the title hereto, but against a number of other contestees holding certificates of election. Upon motion of the contestees, made during the trial, all contests except the one involved herein and another were dismissed. All were tried together, and at the conclusion of the trial a judgment was rendered, finding that the contestant, Drinkwater, had been duly elected to the office of sheriff. On the face of the returns, Nelson received 1,619 votes and Drinkwater 1,595 votes. Upon a recount of 18 precincts it was found by the trial court that there were 1,597 votes for Drinkwater as against 1,599 for the defendant, Nelson. It was further found that certain ballots were cast in favor of the defendant by persons who were not residents of the precinct in which they voted, and some by persons who were not citizens of the United States. It was also found that votes were cast and counted for the defendant in three precincts, 21 votes in all, which had not been legally voted-the illegality consisting in assistance rendered by a judge of election, where the elector did not require such assistance by reason of any legal disability. Thus on the face of the returns as revised by the recount, 30 votes appearing to have been cast for Nelson were subtracted, making the votes stand, as a result of these proceedings, 1,597 for the plaintiff to 1,569 for the defendant.
[1] The first assignment argued by the appellant is that the notice of contest was not served within the time limited by the statute. Section 1046, Compiled Laws of 1913, says that any person desiring to contest the validity of an election or the right of any person declared duly elected to any office shall give notice in writing to the person whose election he desires to contest within 20 days after the canvass of the votes of such election. The notices of contest were served on December 2, 1920, and it is claimed that the canvass was completed on November 10th or 11th.
Much testimony was directed to the question as to when the canvass was, in fact, completed. The proceedings of the board of county commissioners, as published in the official paper some time after the canvassing was completed, made no reference to the canvass. They show that the board met on November 9th and 10th, and that on the 10th it adjourned to meet again on November 18th. The minutes of the proceedings indicate nothing but the transaction of ordinary county business. There are two copies of the abstract of votes in evidence, both of which are dated November 13th and are signed by the members of the canvassing board. Each one contains a certificate of the county auditor to the effect that it is a true and correct copy of the original abstract, and each of these is dated the 13th. One of the certificates of the canvassing board, however, was apparently dated originally, “November 10,” but the “10” is scratched out with a pen, and “13” written after it. These, in brief, are the circumstances chiefly relied upon by the appellant as showing that the canvass was completed more than 20 days before the service of notice of contest. A clear preponderance of the evidence given by the witnesses, however, establishes that the canvassing board was in session on November 11th and 12th, and that the minutes of the board of county commissioners, as prepared for publication and as published, did not show the true proceedings, or, in fact, any proceedings of the board of canvassers. The trial court's findings in this respect are well supported by the evidence introduced at the trial, and we think it clearly appears that the notices were served within the 20-day period prescribed by the statute. We may observe here that the contestant does not impeach any record actually made of the canvass, and that counsel for the contestee and appellant practically concede that the testimony of the witnesses is against their contention, for they find it necessary to attack this evidence as being “fabricated” or false. The trial court believed the testimony, and we can see no reason for reversing the finding made in so far as credibility is involved.
[2] It is next contended that the court erred in permitting a recount of the ballots cast in Garness and Forthune precincts, for the reason that the ballots so recounted had not been kept as required by law. It seems that an iron box had been provided by the county as a repository for the ballots. This box was kept in a vault in the courthouse, which was set aside for the joint use of the county judge, the clerk of court, and the register of deeds. The box had evidently been provided prior to the increase in the electorate incident to woman suffrage, and was not large enough to hold all the ballots. After it was filled the remaining ballots were stored in the vault, as they came in, upon or near the box. It is claimed that the ballots so kept are not admissible in contest proceedings by virtue of chapter 121 of the Session Laws of 1919. That chapter amends section 1008 of the Compiled Laws of 1913. It provides, among other things, that the election judges shall wrap the ballots by sealing them with sealing wax and stamping the name of the county with a metal stamp provided for the purpose, so that the wrappers cannot be opened without breaking the seal, that they shall be returned by mail to the county judge, and that he shall arrange them in boxes which shall be securely locked and placed in a fireproof vault, where they shall be securely kept for six months. The purpose of the act is declared as follows:
“It is the purpose of this act (section) to provide a safe place for the keeping of the ballots and to make them readily accessible for use in legal proceedings, and such ballots shall be received in evidence, without further identification or foundation being laid, and any failure on the part of the election officers to comply with any of the formalities required hereby as to the return of said ballots shall not invalidate any election or cause any ballot otherwise regular to be disregarded and any omissions or irregularities in the manner of identifying or returning the ballots of any precinct may be obviated by proof under the ordinary rules of evidence.”
Full compliance with the statute is declared to be a sufficient foundation for identification; but, where the statute has not been strictly complied with, the ordinary legal foundation for identifying the ballots is required. If the contention of appellant's counsel be correct, it would follow that any meritorious contest could be wholly defeated through the mere failure of the county judge to fully comply with the strict letter of the statute. Such is not the evident purpose, for the Legislature has specifically said that any omission “in the manner of identifying” the ballots may be obviated by proof. The failure to keep the ballots as required is an omission in the manner of identifying them, and hence opens the way for ordinary proof under the express language of the statute.
[3] But counsel argue that the ballots should not have been received in evidence because of the condition in which they were found, namely, in bundles with the seals broken, and, in one instance, in a gunny sack, which they contend is not the sack in which they were mailed to the county judge. The sack incident is fully explained in the record, and we think the identity of the original package was fully established. As to the other bundles,...
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