Jewett v. Miller

• Decision Date: 22 December 1960
• Docket Number: No. 9923,9923
• Citation: 106 N.W.2d 611,78 S.D. 632
• Parties: Wallace JEWETT, Plaintiff, v. James W. MILLER, Defendant.
• Court: South Dakota Supreme Court

Page 611

106 N.W.2d 611

78 S.D. 632

Wallace JEWETT, Plaintiff, v. James W. MILLER, Defendant.

No. 9923.

Supreme Court of South Dakota.

Dec. 22, 1960.

Donald J. Coleman, Dupree, Clair B. Ledbetter, Pierre, for plaintiff.

Andrew Aberle, Timber Lake, Warren Price, Lemmon, for defendant.

SMITH, Judge.

As authorized by SDC 16.1818 and 16.1819(1) we have reviewed the proceedings of the Dewey and Ziebach county recount boards dealing with the election of a member of the House of Representatives of the 51st District of South Dakota. The certified results of such county recount boards recorded a total of 1,615 votes for James W. Miller, defendant above named, and 1,614 votes for Wallace Jewett, plaintiff above named. As contemplated by SDC 16.1824 counsel have reduced our labors by eliminating disputed ballots from our consideration. By written stipulation they have reduced the disputed ballots to thirty-two in number and have also agreed that an additional disputed ballot identified as W J 19, which the county board counted for defendant Miller was incorrectly counted because it is not stamped with the official stamp. See Cahalan v. Terry, 73 S.D. 531, 45 N.W.2d 460.

The first group of ballots to be considered are those which counsel assert bear erasures or obliterations. A voter may not correct his ballot by erasure or obliteration. By so doing he spoils his ballot and must proceed as provided by SDC 16.1208. Such a spoiled ballot cannot be counted. Smiley v. Armstrong, 66 S.D. 31, 278 N.W. 21; Cahalan v. Terry, 73 S.D. 531, 45 N.W.2d 460, and In re Employment of City Manager, 77 S.D. 390, 92 N.W.2d 383.

In this group there are ten ballots which were counted by the recount board for plaintiff Jewett. Three of these ballots, viz., J M 36, J M 26, J M 10, we hold to have been correctly counted. The first two evidence only an inadvertent smudge, and the other does not bear an erasure. The remaining seven ballots bear erasures or obliterations and were incorrectly counted.

In this group were seven ballots counted for defendant Miller, viz., W J 6, W J 5, W J 1-Z, W J 8, W J 23, W J 2-Z, and W J 25. All of these ballots bear erasures or obliterations, and hence were incorrectly counted.

Neither party suffers a net loss from our consideration of the foregoing category of ballots.

We now consider a group of ballots which invoke the rule pronounced in Ward v. Fletcher, 36 S.D. 98, 103, 153 N.W. 962, 964, and adhered to through the subsequent course of our decisions as follows:

'Courts and election judges should strive to determine and carry out the intent of the elector when satisfied that the elector has endeavored to express such intent in the manner prescribed by law or by directions found upon the ballot, and for that purpose, should presume every marking found where the X should be to be a marking intended as a X unless the contrary is clear.'

And see Warne v. Noonan, 76 S.D. 426, 80 N.W.2d 74.

Included in this grouping are five ballots counted for plaintiff Jewett, viz., J M and J M 47, bearing in an authorized space unskilled attempts to reproduce the peculiar printed check mark exemplified in the 'Instructions to voters' at the head of the ballot, and J M 22, J M 27, and J M 37, which were properly marked but by very apparent inadvertence, due to the surface under the ballot, the pencil punched through the paper. We hold these ballots to have been correctly counted.

Neither party has suffered loss through our review of these ballots.

The next group of ballots bears marks, intentionally made, at an unauthorized place. The controlling rule was expressed in Ward v. Fletcher, 36 S.D. 98, at page 103, 153 N.W. 962, at page 964, in these words:

'Upon the other hand, no mark, whether it be a X or not, which has been made upon a ballot at an unauthorized place, can properly be referred to to assist in determining the intent of the voter; and, where it appears that a mark was intentionally made by the voter at an unauthorized place, it should be held to be an identifying mark. It...