Howser v. Pepper

• Decision Date: 01 July 1899
• Docket Number: 6731
• Citation: 79 N.W. 1018,8 N.D. 484
• Court: North Dakota Supreme Court

79 N.W. 1018

8 N.D. 484

EDGAR A. HOWSER v. J. A. PEPPER

No. 6731

Supreme Court of North Dakota

July 1, 1899

Appeal from District Court, Nelson County; Fisk, J.

Action by Edgar A. Howser against J. A. Pepper. Judgment for defendant, and plaintiff appeals.

Reversed.

Reversed.

Templeton & Rex, for appellant.

The court below erred in sustaining objections to the admissibility in evidence of the ballots from Lee and Center townships. The true rule is as stated in Sone v Williams, 130 Mo. 530, 32 S.W. 1016, that the ballots are the best and primary evidence provided they have been kept by the proper custodian in the manner required by law and have not been tampered with. When the boxes are produced and they and the ballots contained in them are fair on their face they are prima facie admissible and the burden of showing that they are not shifts to the other party. Tebbe v. Smith, 108 Cal. 101, 41 P. 454; Dooley v. Van Hohenstein, 170 Ill. 630, 49 N.E. 193; Hartman v. Young, 20 P. 17; Apple v Barcroft, 158 Ill. 649; Baris v. State, 75 Tex 420, 12 S.W. 957; Hudson v. Solomon, 19 Kan. 177; Hunnicutt v. State, 75 Tex. 233, 12 S.W. 106. Statutory provisions to be obeyed by the election officers are quite uniformly held directory, those to be obeyed by the voter mandatory. Tebbe v. Smith, 41 P. 454; O'Gorman v. Richter, 31 Minn. 25, 16 N.W. 416; Peo. v. Livingston, 79 N.Y. 279; Horning v. Burgess, 77 N.W. 446; McCrary on Elections, § 724. The ballot marked with a cross in the square at the head of the independent and democrat column and also a cross opposite respondent's name in the republican column should be counted for appellant. Valier v. Brakke, 64 N.W. 180; McKittrich v. Pardee, 65 N.W. 23; Church v. Walker, 10 S.D. 450, 72 N.W. 101. Else one mark neutralizes the other. State v. Fransham, 48 P. 1; In re Assessor, 40 A. 822. The ballot with a diagonal mark in the square at the head of the independent and democrat column should be counted for appellant. The statute does not require a cross mark. Laws 1897, Ch. 76; Tebbe v. Smith, 41 P. 456. Our constitution (Sec. 129) provides for a secret ballot. So does the statute. Sec. 559 Rev. Codes; Ex parte Arnold, 128 Mo. 256, 30 S.W. 768. Certain of the ballots crossed opposite every name in the republican column are illegal as bearing distinguishing marks. Distinguishing or identifying marks are either marks of a kind not authorized by law or marks authorized by law which are put in unauthorized places. Curran v. Clayton, 86 Me. 42, 29 A. 930; Parvin v. Wiemberg, 30 N.E. 790, 130 Ind. 561; McCrary on Elect. § 724; § 559 Rev. Codes; Attorney General v. McQude, 94 Mich. 439; Whittam v. Zahorik, 59 N.W. 57; Dennis v. Caughlin, 41 P. 768; In re Ballot Marks, 27 A. 608; Sego v. Stoddard, 36 N.E. 204; Zeis v. Passwater, 41 N.E. 796; Bechtel v. Albin, 33 N.E. 967; Lauer v. Estes, 53 P. 262; Oglesby v. Sigman, 58 Miss. 502. Exhibits 3 and 8 have crossmarks outside of the squares. This kind of marking has been repeatedly condemned. Vallier v. Brakke, 64 N.W. 180; Apple v. Barcroft, 158 Ill. 649; Curran v. Clayton, 29 A. 930; Taylor v. Blenkley, 39 P. 1045; Attorney General v. Gaser, 102 Mich. 405; Bechtel v. Albin, 33 N.E. 967; In re Flynn, 37 A. 523; Dennis v. Caughlin, 41 P. 768; Parvin v. Weimberg, 30 N.E. 790. Exhibits 11 and 12 each were marked opposite the respondent's name, an attempt was clearly made to obliterate it by making other marks over the first, and on each ballot a well defined cross appears in the square opposite appellant's name. These circumstances indicate an honest purpose to vote for appellant and that the first mark was a mistake which the voter endeavored honestly but ignorantly to correct. State v. Walsh, 17 L. R. A. 364, 25 A. 1; Dennis v. Caughlin, 41 P. 768; State v. Fawcett, 49 P. 346. Exhibit "E" should have been counted for appellant. The fact that appellant's name was already printed upon the ballot did not destroy the effect of writing his name thereon. Sannor v. Patton, 155 Ill. 553. Nor does the fact that the name of E. A. Howser was written on Exhibit "E" instead of Edgar A. Howser deprive appellant of the right to have this ballot counted as a vote for him. Newton v. Newell, 26 Minn. 529; State v. Foster, 38 Ohio St. 599; Opinion of Justices, 64 Me. 596; Attorney General v. Coldburn, 62 N.H. 70; Clark v. Board, 126 Mass. 282; Peo. v. Smith, 45 N.Y. 772. The notice of contest was sufficient to allow the admission of the tallies in evidence. Bragunier v. Penn. 29 A. 12; Hadley v. Gutridge, 58 Ind. 302. The tallies should control the figures. State v. McFadden, 65 N.W. 800.

F. A. Kelly, and Bangs & Guthrie, for respondent.

Defendant's objection at the opening of the trial that section 566, Rev. Codes, had not been complied with and jurisdiction was lost, should have been sustained. Brown v. Hixon, 45 Mo. 340; Seeley v. Killoran, 53 Minn. 240; Costello v. St. Louis, 28 Mo. 278; Wilson v. Lucas, 43 Mo. 290. The statute requires the inspector to retain the ballot box locked with the ballots in it for sixty days next after election. § 526, Rev. Codes. After the expiration of the statutory time for holding the ballots they ceased to have a legal existence. State v. Bates, 36 N.W. 17. The ballots for the four precincts under investigation by this contest were not in proper custody of law, had not been properly kept. The boxes into which they were placed were not sealed as required by law. In two of the precincts the ballots had not been kept by the officer required by law to keep them. They were offered in evidence ten days after they had ceased to have any legal existence. The burden of showing that the ballots offered in evidence were the identical ballots cast was upon contestant. Their integrity was sufficiently impeached to shift the burden of proof. Hudson v. Solomon, 19 Kan. 177; McCrary on Elections, § 478; Dorey v. Linn, 31 Kan. 758; Murphy v. Battle, 155 Ill. 182; Albert v. Twohig, 35 Neb. 563. Where the statute provides a mode of preserving the identical ballots for the purpose of being used as evidence the statute must be strictly followed. If it appears that they have been handled by unauthorized persons or that they have been left in an exposed and improper place they cannot be offered to overcome the official count. McCrary on Elections, § 471; Butler v. Lehman 1 Barb. 353; Powell v. Holman, 6 S.W. 505; Hughes v. Holman, 23 Ore. 48; Tebbe v. Smith, 108 Cal. 101; Hartman v. Young, 17 Ore. 150; Peo. v. Burden, 45 Cal. 241. The party offering the ballots to impeach the official returns must show affirmatively that they are the identical ballots cast. Beall v. Albert, 159 Ill. 126; Fenton v. Scott, 17 Ore. 189; Newton v. Newell, 26 Minn. 529; Martin v. Miles, 58 N.W. 732. The proviso in section 524, Rev. Codes, ameliorates the otherwise harsh rule of construction. The statute is directory as to the method of the voters designating his choice. Dickerman v. Gelsthorpe, 47 P. 999; State v. Russell, 51 N.W. 465; Spurgin v. Thompson, 55 N.W. 297; Peo. v. McManus, 34 Barb. 620; Houston v. Steele, 34 S.W. 6. The mark prohibited by law is such an one as shows an intention to distinguish the ballot from others of its class. State v. Russell, 51 N.W. 465; Tebbe v. Smith, 41 P. 454; Houston v. Steele, 34 N.W. 6; 33 Am. St. Rep. 625. Exhibit "E" should not be counted for either party because there is no cross or mark after the name of either candidate. Laws 1897, page 117; Martin v. Miles, 65 N.W. 889. Also for the reason that there is no evidence showing that Edgar A. Howser and E. A. Howser is one and the same person. Vickery v. Burton, 6 N.D. 245, 69 N.W. 193; State v. The Judge, 13 Ala. 805; Opinion of Justices, 64 Me. 596; Redman's Appeal, 174 Pa. 59; McCrary on Elections, 528-530. Exhibit "2" should be counted for respondent, it is not a void ballot. McMahon v. Polk, 10 S.D. 296.

OPINION

YOUNG, J.

This is an election contest, prosecuted under article 12 of chapter 8 of the Political Code, and involves the office of clerk of court of Nelson county. The parties to the contest were rival candidates for that office at the November, 1898 elections. The official ballot of Nelson county consisted of two columns, the first containing the names of the republican candidates, and the second the names of the candidates designated thereon as independent-democrat; each column being under its party name. The contestant was the candidate of the party designated as independent-democrat, and his name was printed in the second column, belonging to that party. The contestee was the republican candidate, and his name was printed in the first, or republican, column. The official canvass of the precinct returns gave Edgar A. Howser, the contestant, 708 votes, and J. A. Pepper, the contestee, 711 votes. The latter was accordingly declared elected, and a certificate of election issued to him. Within the time limited by section 563, Rev. Codes, the contestant challenged the result of the canvass and the right of contestee to the office by serving notice of contest, wherein he set out at length the grounds of his contest, and alleged that he (Howser) had in fact received 712 votes, and that contestee, Pepper, had received but 701 votes, and in due time contestee answered such notice. The contest was noticed for trial by contestant for a regular term of the District Court of Nelson county held on January 16, 1899, as an adjourned session of the regular November, 1898, term, and was heard by the Court without a jury at such term on January 19, 1899. Prior to the introduction of the testimony, the contestee objected to the jurisdiction of the Court to try the contest at that term upon the ground that such contest had not been brought to trial within 20 days after the answer was served, and that...