Drinkwater v. Nelson

• Decision Date: 14 February 1922
• Court: North Dakota Supreme Court

187 N.W. 152

48 N.D. 871

ED DRINKWATER, Respondent, v. ANDREW NELSON, Appellant

Supreme Court of North Dakota

February 14, 1922

Rehearing denied Mar. 11, 1922.

Appeal from the District court of Burke county, Cooley, Special J.

Affirmed.

McGee & Goss, for appellants.

The ballots should not have been received in evidence and if received should have been stricken on the testimony offered. Davenport v. Olerich, (Iowa) 73 N.W. 603; Delong v. Brown, (Iowa) 85 N.W. 624; Doak v. Briggs (Iowa) 116 N.W. 115; Keith v. Wendt, (Mich.) 107 N.W. 443; State v. Widule (Wis.) 157 N.W. 769.

Where statutes providing for the preservation and protection of ballots to be used in a contest have not been complied with or where it appears that the integrity of the ballots has not been preserved, such ballots are not competent evidence to impeach the determination of the board of canvassers. Farrell v. Larson, 26 Utah 283, 73 P. 227; People ex rel. Williams v. Cicott, 16 Mich. 283, 97 Am. Dec. 141; Martin v. Miles, 40 Neb. 135, 52 N.W. 732; Fenton v. Scott, 17 Ore. 189, 20 P. 95, 11 Am. St. Rep. 801; Beall v. Albert, 159 Ill. 127, 42 N.E. 166; Thornhill v. Wear, 131 La. 739, 603 South 228; Delong v. Brown, 113 Iowa 370, 85 N.W. 624; Edwards v. Logan, 114 Ky. 312, 70 S.W. 852, 75 S.W. 257; People v. McClellan, 124 A.D. 215, 108 N.Y.S. 765.

Bangs & Robbins, for respondents.

The rule supported by the overwhelming weight of authority is that the votes shall be rejected proportionately according to the votes cast in the precinct for the two candidates.

That the votes should be deducted proportionately see: McCrary on Elec. (4th ed.) 495; § 1005 C. L. 1913; People v. Cicott, 16 Mich. 283, at 322, 97 Am. Dec. 941; Ellis v. May, 99 Mich. 538 at 555; 48 N.W. 483 at 488, 25 L.R.A. 325 at 331; Moore v. Sharp, 98 Tenn. 491, 41 S.W. 587; Parker v. Hughes, 64 Kan. 216, 67 P. 637, 91 A. S. R. 216, 56 L.R.A. 275; Heyfron v. Mahoney, 9 Mont., 497, 24 P. 93, 18 A. S. R. 216; Choisser v. York, 211 Ill. 56 at 66, 71 N.E. 940; Briggs v. Christ, 28 S.D. 562, 134 N.W. 321; Berg v. Beit, 136 Minn. 443, 162 N.W. 522.

Ballots case with assistance in violation of statute void: Constitution § 129; §§ 986, 988 and 990 C. L. 1913; Perry v. Hackney, 11 N.D. 148, 90 N.W. 483; Atty. Gen'l. v. McQuade, 94 Mich. 439, 53 N.W. 944; Atty. Gen'l. v. May, 99 Mich. 538, 58 N.W. 483; Major v. Barker, 99 Ky. 305, 35 S.W. 543; State v. Gay, 59 Minn. 6, 60 N.W. 676; McEwen v. Prince, 125 Minn. 417; 147 N.W. 275; Huston v. Anderson, 145 Cal. 329, 78 P. 626; Tebbe v. Smith, 108 Cal. 101, 41 P. 454, 49 A. S. R. 68, 29 L.R.A. 673; Patrick v. Runyon, 20 Ky. L. R. 1914, 50 S.W. 538; Gill v. Shuretleff, 183 Ill. 440, 56 N.E. 164; McCreery v. Burnsmeir, 293 Ill. 43, 127 N.E. 171; Rampendahl v. Crump, 24 Okla. 873, 105 P. 201; Westville v. Stillwell, 24 Okla. 892, 105 P. 664; Ryan v. Waurika, 29 Okla. 655, 119 P. 220; Board v. Dill, 20 Okla. 104, 110 P. 1107, Ann. Cas. 1912B, 101, 29 L.R.A. (N.S.) 1170.

BIRDZELL, J. CHRISTIANSON and ROBINSON, JJ., concur, BRONSON, J., concurs in result. GRACE, C. J. (concurring in part and dissenting in part).

OPINION

BIRDZELL, J.

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 § 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 1619 votes and Drinkwater 1595 votes. Upon a recount of eighteen precincts it was found by the trial court that there were 1597 votes for Drinkwater as against 1599 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 votes 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, thirty votes appearing to have been cast for Nelson were substracted, making the votes stand, as a result of these proceedings, 1597 for the plaintiff to 1569 for the defendant.

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, Complied 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 findings made in so far as credibility is involved.

It is next contended that the court erred in permitting a recount of the ballots cast in Garness and Fortune 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 chap. 121 of the Session Laws of 1919. That chapter amends § 1008 of the Complied 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...