Hughes v. Upson
| Citation | 86 N.W. 782,84 Minn. 85 |
| Decision Date | 28 June 1901 |
| Docket Number | 12,644 - (166) |
| Parties | ROBERT S. HUGHES v. ELLIOT A. UPSON |
| Court | Supreme Court of Minnesota (US) |
The county canvassing board of Blue Earth county having declared Elliot A. Upson to have received the highest number of votes cast and to have been elected to the office of county commissioner of that county, at the general election held November 6, 1900, Robert S. Hughes, a rival candidate appealed to the district court for said county. The case was heard before Cray, J., who found in favor of the contestee. From a judgment entered pursuant to the findings, the contestant appealed. The contestee also appealed from certain portions of the judgment. Judgment affirmed.
Election -- Ballots Examined.
A number of ballots involved in a contest over the office of county commissioner examined and considered. Held, that the court below counted these ballots accurately, and was correct in its conclusion of law that the contestee was entitled to the office.
Thos Hughes, for contestant.
D. A. Reed, W. E. Young and Pfau & Pfau, for contestee.
This is a contest over the office of county commissioner, Third district, Blue Earth county. The court below found the facts, and, as a conclusion of law, that the contestee, Upson, was duly elected to the office.
There were twenty-nine ballots in dispute when the statutory referees finished their labors and made reports, -- one being signed by two referees, the other by one, -- and the court below was simply required to pass upon these disputed ballots. As we regard the case, we are not compelled to determine as to all of these. The contest is disposed of by examination of those which have been relied upon by the attorney for the contestant, Hughes, as establishing his title to the office, when properly counted. These ballots are in part numbered, and in part lettered. As prepared by the proper authorities for the use of the voters, the county ballot was in the ordinary form, containing the names of the candidates for congress, the legislature, county auditor, treasurer, sheriff, register of deeds, judge of probate, attorney, surveyor, coroner, clerk of the district court, superintendent of schools, and county commissioner, and, as named from the top to the bottom of the ballot, these names were in the above order; heavy black lines dividing the names of the candidates for one office from the names of the candidates for another office, while lighter lines separated the names of the candidates for the same office. All of this ballot necessary to be presented in order to illustrate our decision is as follows:
Vote for one.
Superintendent of Schools.
W. E. FREEMAN -- REPUBLICAN.
Superintendent of Schools.
Superintendent of Schools.
Vote for one.
County Commissioner.
R. S. HUGHES -- REPUBLICAN.
County Commissioner.
County Commissioner.
We here call attention to the fact that the names of the candidates for the office of county commissioner were printed last upon the ballot, immediately below a heavy black line, above which were the names of the candidates for superintendent of schools.
The first ballot to be considered is the one numbered 2. This had an X in the square opposite the name of the contestant, but in the blank space at the bottom, provided for writing in the name of a candidate for the office of county commissioner, was written the name of John "Rhoads," with an indelible pencil. There was a duly-qualified elector in the town in which this ballot was cast by the name of John Rhodes, and he was eligible to the office, but was not a candidate for the same. There was no cross mark opposite this written name. The court below rejected the ballot, refusing to count it for any one; and the contestant insists that it should have been counted for him, that it was intended for him, and that the intention was shown by the X opposite his name.
This is really a repetition of a part of section 105, where the rules for making and folding ballots are laid down. The name of John "Rhoads" having been written in the ballot, the statute required that it be counted as a ballot for him, unless it appears therefrom by reason of the X opposite the name of the contestant, that it was intended as a vote for the latter, or unless the real intent of the voter cannot be determined. We are unable from any examination of the ballot to ascertain the intention of the voter. He not only placed an X in the space opposite the contestant's name, but he took the trouble to write the name of another person, eligible to the office, in the space provided for that exact purpose. He left the matter in doubt, and one of these acts negatives and destroys the other. It is a case where the intention cannot be safely ascertained by an inspection of the ballot, and therefore the rule as to intent laid down in Truelsen v. Hugo, 81 Minn. 73, 83 N.W. 500, is not relevant. It follows that the court below decided correctly when it refused to count this ballot for Mr. Hughes.
His counsel next insists that he was entitled to have ballots numbered 3 and 5 counted for him. Each of these had an X placed in the square opposite the blank space provided for writing in the name of a candidate for the office of superintendent of schools, which space was immediately above the heavy dark line before...
To continue reading
Request your trial