Healey v. Rank, 10229

• Decision Date: 09 March 1966
• Docket Number: No. 10229,10229
• Citation: 140 N.W.2d 850,82 S.D. 54
• Parties: Francis HEALEY, Plaintiff-Respondent, v. Melvin RANK, and the Recount Board of Buffalo County, South Dakota, and Dave McFarlane, Joe Knippling, and George Sinkie, Constituting the Members of Said Board, Defendants- Appellants.
• Court: South Dakota Supreme Court

Page 850

140 N.W.2d 850

82 S.D. 54

Francis HEALEY, Plaintiff-Respondent, v. Melvin RANK, and the Recount Board of Buffalo County, South Dakota, and Dave McFarlane, Joe Knippling, and George Sinkie, Constituting the Members of Said Board Defendants- Appellants.

No. 10229.

Supreme Court of South Dakota.

March 9, 1966.

H. L. Hollmann, Chamberlain, for defendants and appellants.

Heidepriem & Widmayer, Miller, for plaintiff and respondent.

ROBERTS, Judge.

Plaintiff, Francis Healey, and Melvin Rank were candidates for Sheriff of Buffalo County at the general election held November 3, 1964. The county canvassing board certified that Francis Healey received 395 votes and Melvin Rank received 413 votes. The returns indicated that in Victory Precinct No. 5 candidate Healey received 164 votes and 239 votes were cast for his opponent. On November 12, three electors of that precinct filed with the county auditor a petition verified by them stating that they believed that the official return in Victory Precinct as to the candidates for sheriff was erroneous and demanded a recount. On the following day, November 13, four electors of the same precinct filed petitions with the county auditor demanding a recount. Five of the signers subsequently filed in the auditor's office purported withdrawals of their names from the petitions. If the right of withdrawal existed, the number of electors of the precinct petitioning for recount was less than that required by statute. The county recount board thereafter met and refused to recount the votes and determine the result in such precinct. This proceeding for a writ of mandamus requiring the board to reconvene and to conduct a recount of the votes cast in Victory Precinct for the office of sheriff was then instituted.

Defendant Rank answered asserting that plaintiff failed to state a claim upon which relief could be granted and setting forth the facts as to the purported withdrawals and maintaining that the number of petitioners was reduced below that required by statute to initiate a recount. The parties agreed that the matter be heard upon the facts shown by the record of the proceedings signed by the members of the recount board and attested by the auditor and filed in his office. The material portion of such record reads as follows:

'That following the General election held in Buffalo County on November 3, 1964, there was filed in my office on November 12, 1964 a petition signed by three legally qualified electors of Victory Precinct No. 5 of said County, setting forth that they believed that the official returns from such precinct as to Melvin Rank, the candidate for Sheriff are erroneous, and requesting a recount of the ballots therein. * * *

'On November 13, 1964 two of the said petitioners requested in writing that their names be withdrawn from said petition. On November 13, 1964 further petitions were filed requesting same recount signed by four legally qualified electors. On November 16, 1964, the remaining petitioner on the first petition filed made request in writing to withdraw her name from such petition. On November 16, two signers of the petition filed on November 13th requested in writing that their names be withdrawn. After all of the withdrawals were considered there remained only two petitioners seeking a recount. * * *

'As the first order of business the board proceeded to examine and check the petitions requesting a recount, and it was determined that there were only two petitioners remaining. Written objections to proceeding with the recount were filed by Attorney Hollmann, and after discussion it was determined and ordered by unanimous vote of the recount board that it had no jurisdiction to recount the ballots of said precinct because of the insufficiency of the petitions.'

The last day for the filing of a petition for recount was November 13, 1964. Two signers attempted to withdraw after the time allowed for such a filing. The trial court held that it was too late for these signers to withdraw. Defendant, Melvin Rank, appealed from the judgment directing issueance of a writ of mandamus commanding the board to reconvene and recount the ballots cast in Victory Precinct for sheriff.

The pertinent statute is SDC 16.1803(1). That statute in part provides:

'Such recount shall be made under any of the following conditions: (1) When within ten days after an election any three legally qualified electors of a precinct file with the county auditor a petition, duly verified by them, setting forth that they believe that the official returns from such precinct as to a specified candidate or as to a specified referred or submitted question are erroneous, the votes of such precinct as to the office or position specified or as to the question specified shall be recounted; * * *'.

There is no statute which in terms authorizes one who has signed a petition for recount to withdraw his name. There are instances, in the absence of statute, in which signers of a petition may withdraw their names if they act in due time, even though the withdrawals may render the petition insufficient because of insufficient signers. State ex rel. Andrews v. Boyden, 21 S.D. 6, 108 N.W. 897, 15 Ann.Cas. 1122; St. Lawrence Ind. Sch. Dist. v. Board of Education, 58 S.D. 287, 235 N.W. 697. The right is dependent upon the...