Harper v. Dotson
| Decision Date | 09 January 1920 |
| Citation | 32 Idaho 616,187 P. 270 |
| Parties | THOMAS E. HARPER, Respondent, v. F. B. DOTSON, Appellant |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Fourth Judicial District, for Cassia County. Hon. Wm. A. Babcock, Judge.
Action to contest election of probate judge. Judgment for plaintiff. Reversed.
Reversed and remanded, with directions. Costs awarded to appellant. Petition for rehearing denied.
Chas A. Sunderlin, for Appellant.
Not only was no notice given the electors, and no notices posted of the holding of the election at the Albion Normal School but, so far as we are advised by the record, there was no publicity given to the fact that there was even an election to be held at the State Normal School. After notices of election in Albion precinct had been posted that the polling place of the said precinct was to be at the county courthouse, it was then mandatory on the part of the public officials, unless the change was absolutely necessary, as on account of the destruction of the building in which the election should be held, that the election should be held at the place designated in the notices of election and at no other place. (People v. Porter, 6 Cal. 26; People v Weller, 11 Cal. 49, 70 Am. Dec. 754.)
S. T. Lowe, for Respondent.
Where the question is for whom a ballot should be counted, the intention of the voter should, if possible, be ascertained, and when ascertained, it must be counted. (McKinnon v. People, 110 Ill. 305.)
The general rule is that the voter must use a cross of some kind in marking his ballot, and if he fails to do so, his vote will not be counted. (Rutledge v. Crawford, 91 Cal. 526, 25 Am. St. 212, 27 P. 779, 13 L. R. A. 761; Lay v. Parsons, 104 Cal. 661, 38 P. 447; Lauer v. Estes, 120 Cal. 652, 53 P. 262; People v. Campbell, 138 Cal. 11, 70 P. 918; Turner v. Wilson, 171 Cal. 600, 154 P. 2; Riley v. Trainor, 57 Colo. 155, 140 P. 469; Parker v. Orr, 158 Ill. 609, 41 N.E. 1002, 30 L. R. A. 227; Hodgson v. Knoblauch, 268 Ill. 315, Ann. Cas. 1917E, 653, 109 N.E. 338; Murray v. Waite, 113 Me. 485, Ann. Cas. 1918A, 1128, and exhaustive note in 94 A. 943.)
An irregularity such as the changing of the place regularly appointed for the holding of an election will not render the election invalid when the change is made in good faith, and no one is misled thereby so as to be deprived of his vote. (Bordwell v. State, 77 Ark. 161, 91 S.W. 555; Preston v. Culbertson, 58 Cal. 198; Hayes v. Kirkwood, 136 Cal. 396, 69 P. 30; Laird v. Boothe, 22 Cal.App. 569, 135 P. 703; Slate v. Mayor etc. of City of Blue Ridge, 113 Ga. 646, 38 S.E. 977; State v. Shanks, 25 S.D. 55, 125 N.W. 122.)
Notice is not a condition precedent to the holding of a valid election. The right to hold the election comes from the statute, and not from the official notice. (Cooley's Constitutional Limitations, 759; Wilson v. Brown, 109 Ky. 229, 58 S.W. 595; Dishon v. Smith, 10 Iowa 212; State v. Gorin, 6 Nev. 276.)
Changing of polling place by reason of necessity will not invalidate an election where proper notice of such change has been given and no one has been deprived of his vote on this account. (Anderson v. Likens, 104 Ky. 699, 47 S.W. 867.)
The unauthorized establishment of two polling places in an election precinct, instead of only one, will not invalidate an election where no prejudice results to the defeated candidate by reason of such irregularity. (Bowers v. Smith, 111 Mo. 45, 33 Am. St. 491, 20 S.W. 101, 16 L. R. A. 754; Ex parte Williams, 35 Tex.Crim. 75, 31 S.W. 653; Stemper v. Higgins, 38 Minn. 222, 37 N.W. 95; Kerlin v. City of Devils Lake, 25 N.D. 207, Ann. Cas. 1915C, 624, 141 N.W. 756.)
Mere irregularities in conducting an election which do not defeat or tend to defeat an expression of the popular will at the polls will not so operate as to vitiate the election. (State v. Wilcox, 11 N.D. 329, 91 N.W. 955.) The will of the majority is to be respected even when irregularly expressed. (McCrary on Elections, sec. 228.)
--On Nov. 5, 1918, a general election was held in Cassia county, Idaho. Appellant Dotson was candidate for probate judge of said county on the Democratic ticket and respondent Harper on the Republican ticket. The county board of canvassers declared the appellant elected by a vote of 1,632 for him to 1,628 for respondent. Respondent instituted a contest of such election in the district court for Cassia county. Appellant answered, denying the material allegations of the complaint, and setting up facts which he claimed entitled him to affirmative relief. The district court ordered the ballot-boxes for certain precincts opened, and the ballots recounted; found that in the county appellant received 1,640 and respondent 1,651 votes, and decided the contest in favor of respondent, declaring him elected to said office. From said judgment an appeal is taken to this court.
We will first consider specifications of error Nos. 15, 16 and 17, which deal with the action of the district court in declaring the election held at the Albion State Normal School, Albion precinct, valid, and counting the votes there cast, the validity of said election and the propriety of counting said votes being an issue under the pleadings.
At the regular meeting of the board of county commissioners, in July preceding the election, the voting precinct of Albion was created and the polling place designated at the courthouse in said town. This precinct included the voters residing at the State Normal School. In November, those residing at the normal school were quarantined within the campus limits because of the influenza epidemic then raging. On Nov. 4th, the day before the election, and long after the adjournment of the July term of the board of commissioners, and at a time when the board of commissioners was sitting as a board of equalization, certain members of the faculty and students petitioned the board of commissioners to appoint a polling place and a separate set of election judges at such school. The board granted said request, and ordered that the privilege of voting be extended to Albion State Normal School members and faculty, under the direction of the following specially appointed and authorized judges, to wit: J. E. Werner, Miss Caroline Jackson and Miss Margaret Jeffrey, and that the registrar of Albion be called upon and that he prepare a separate list of registered voters quarantined within the State Normal precinct and cancel said names from the regular polling list to be used in Albion precinct proper.
C. S., sec. 510, provides as follows:
"The board [of commissioners] may from time to time, change the boundaries of, create new or consolidate established precincts, but they must not alter or change any election precinct or change the place of holding election in any precinct after their regular July meeting next preceding any election: Provided, that the precincts established and the places designated in which to hold elections at the time of the taking effect of this chapter shall so remain until changed."
C. S., sec. 584, provides as follows:
"Whenever it shall become impossible or inconvenient to hold an election at the place designated therefor, the judges of election, after having assembled as near as practicable to such place, and before receiving any vote, may adjourn to the nearest convenient place for holding the election, and at such adjourned place forthwith proceed with the election."
We find the general rule to be that if an election law expressly or in effect declares a failure to comply with certain of its provisions with regard to the conduct of the election to be fatal to the validity of the election, it must be held to be so. If an election law does not expressly or in effect declare a failure to comply with certain of its provisions with regard to the conduct of the election to be fatal to the validity of the election, it must not be held to be fatal unless it appears that such failure probably affected the result of the election by preventing qualified electors from voting, or permitting disqualified electors to vote, or by rendering doubtful the evidence from which the result was declared. (Cooley's Constitutional Limitations, 7th ed., p. 928; McCrary on Elections, 4th ed., sec. 176; State v. Shanks, 25 S.D. 55, 125 N.W. 122; Bowers v. Smith, 111 Mo. 45, 33 Am. St. 491, 20 S.W. 101, 16 L. R. A. 754; Stemper v. Higgins, 38 Minn. 222, 37 N.W. 95.)
It must be conceded that the place of holding an election, and giving notice thereof, are matters of importance. The language of our statute, C. S., sec. 510, supra, to the effect that the board of commissioners must not alter or change any election precinct, or change the place of holding the election in any precinct, after their regular July meeting next preceding any election, is clearly mandatory. We construe it to mean that the act of the commissioners in designating a second voting place in Albion precinct, after their July meeting, was void and rendered the election held at said place void. The validity of the election at the school depends...
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