Elvick v. Groves
| Decision Date | 29 October 1908 |
| Citation | 118 N.W. 228,17 N.D. 561 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Nelson County; Templeton, J.
Contest by Nels H. Elvick of the nomination of Harry Groves at a primary election for the office of county treasurer. Judgment for contestee, and contestant appeals.
Affirmed.
Frich & Kelly, for appellant.
Departure from strict letter of election law not fatal unless injurious to party complaining. Laws 1907, section 1 and 2; Perry v. Hackney, 11 N.D. 148, 90 N.W. 483; Miller v Schallern, 8 N.D. 395, 79 N.W. 865.
To defeat an election by change of polling places, contestant must allege and prove loss of votes. Farrington v Turner, 18 N.W. 544; Ex Parte Segars, 25 S.W 26; Ex parte Williams, 31 S.W. 653; Stemper v Higgins, 37 N.W. 95; Roper v. Scurlock, 69 S.W. 456; Simons v. Dunning, 9 N.E. 220; Bordwell v. State, 91 S.W. 555; Perry v. Hackney, supra, Miller v. Schallern, supra.
Delay in opening polls not fatal to election. Perry v. Hackney, supra; Miller v. Schallern, supra; Soper v. Sibley Co., 48 N.W. 1112; People v. Keeling, 4 Colo. 129; Clark v. Leathers, 5 S.W. 576; State v. Smith, 30 P. 1064; Graham v. Graham, 68 S.W. 1093; Patton v. Watkins, 31 So. 93; Bowers v. Smith, 20 S.W. 101; Hope v. Flentge, 47 L. R. A. 822; Packwood v. Brownell, 53 P. 1079; Pickett v. Russell, 28 So. 764.
Election laws liberally construed. Bingham v. Broadwell, 103 N.W. 323; Griffith v. Bonawitz, 103 N.W. 327.
Scott Rex and Fred A. Kelley, for respondent.
An election held at an improper place is void without proof of fraud or prejudice. 10 Am. & Eng. Enc. Law, 684.
Delay in opening polls vitiates election regardless of fraud or injury. 10 Am. & Eng. Enc. Law, 684, 692; People v. Hill, 57 P. 669; Tebbe v. Smith, 29 L. R. A. 673, 41 P. 454; Hayes v. Kirkwood, 69 P. 30; Kenworthy v. Mast., 74 P. 841; McCrary on Elections, section 126; Paine on Elections, section 498; Melvins case, 68 Penn. State 333; Hayfron v. Mahoney, 24 P. 93; Russell v. McDonald, 23 P. 183.
This is a statutory contest of a nomination for the office of county treasurer of Nelson county. Nels H. Elvick, the appellant, and Harry Groves, the contestee and defendant, were candidates for a nomination to said office at the primary election held in said county on the 24th day of June, 1908. The contestant received 729 votes and the defendant received 730 votes for said office, according to the election returns, and a certificate of nomination was issued to the defendant by the county auditor. The plaintiff served a notice of contest, and alleged various irregularities as grounds for contesting the right to the nomination certificate. It is unnecessary however, to notice or determine any of such alleged grounds of contest as set forth in plaintiff's notice of contest. The contestant concedes that, if no valid election was held in Adler township, he is not entitled to a certificate of nomination. The facts in regard to the validity of the vote at said precinct are alleged in the defendant's answer as follows: "Upon his information and belief that schoolhouse No. 4 was duly designated as the voting place in Adler township and precinct in said county for said election; that said election was not held in said schoolhouse No. 4, but was held in the manner hereinafter set forth in schoolhouse No. 3, which was distant about three miles from schoolhouse No. 4, and that no election was held in said schoolhouse No. 4; that a pretended election was held during a portion of the day of election in schoolhouse No. 3 in said township and precinct, and certain pretended returns of said election were forwarded to the county auditor by the precinct election board, and were canvassed by the county canvassing board; that said returns show that plaintiff and contestant received 27 votes for said nomination in said precinct, and that defendant received nine votes for said nomination in said precinct, and that said returns were so canvassed by the county canvassing board; that at said pretended election at said schoolhouse No. 3 the polls were not open until about 12 o'clock noon; that, by reason of the facts herein set forth, the said pretended election held in said township and precinct was null and void; and that the pretended vote thereof should be rejected." The trial court made findings of fact and conclusions of law in favor of the defendant, and dismissed the contest. From the judgment dismissing the contest proceedings, the contestant appealed to this court, and demands a review of all of the evidence.
In the findings of fact the trial court found that the election was held at schoolhouse No. 3 without authority of law, and that the returns from that election precinct should be rejected, and they were rejected. If the action of the trial court in rejecting all the votes from this precinct was proper, it is decisive of the appeal under the express admissions of the appellant. The appellant claims that schoolhouse No. 4 of Adler township was not proven to have been regularly established as a voting place by the board of county commissioners--the proper body to do so. The records of the county commissioners were produced in court showing the designation by them of the various voting precincts of the county, and the county auditor was asked as to what the designation was as to Adler township, as shown by the commissioners' proceedings, and the county auditor answered by reading from the record of the county commissioners, and such record showed that schoolhouse No. 4 had been established as the voting place for said township. This question was asked the auditor before he read from the record: "And what is the designation shown by the record you have in your hand?" This question was objected to as incompetent, irrelevant, and immaterial, and not the best evidence. The court stated after the objection was made: "You objection does not go to the point that they do not offer the book itself, instead of the auditor's reading from the book." The attorney responded: "No; I don't care anything about that." We think that it was not error to admit the testimony, for the reason that no objection was made thereto upon the ground that it was not the best evidence. This evidence fully established the fact that precinct No. 4 was duly established by the commissioners. The evidence also shows that the notices published under the direction of the county auditor showed that the election in Adler township was to be held in schoolhouse No. 4.
The appellant strenuously contends that the vote of Adler township, as shown by the returns, should be counted notwithstanding the change of the voting place without authority of law from schoolhouse No. 4 to schoolhouse No. 3. He bases this contention upon the alleged fact that it is affirmatively shown that all the electors within said precinct voted at schoolhouse No. 3 on that day, and that therefore, no injury followed the change of the voting place. He further contends that the change was made pursuant to a resolution of a majority of the electors of said precinct while assembled at a political gathering about a week prior to the primary election. It appears that the officers of election at Adler township took no official action in reference to the change of the voting place. They did not convene on election day at schoolhouse No. 4, but tacitly acquiesced in the change agreed upon by the electors at the political meeting, and convened at schoolhouse No. 3. There is no claim, nor room for a claim, that the...
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