Kerlin v. City of Devils Lake

• Decision Date: 26 April 1913
• Citation: 141 N.W. 756,25 N.D. 207
• Parties: KERLIN v. CITY OF DEVILS LAKE et al.
• Court: North Dakota Supreme Court

25 N.D. 207

141 N.W. 756

KERLIN

v.CITY OF DEVILS LAKE et al.

Supreme Court of North Dakota.

April 26, 1913.

Syllabus by the Court.

A special city election was held to determine the question of whether such city would increase its debt limit and issue bonds to establish a city light plant. The election was held at one central voting place instead of having a place for voting in each ward as an election precinct as required by statute. The place of election was where city special elections for years had usually been held. A large vote was polled for a special election. Ample opportunity was afforded all electors to vote. No fraud is alleged in the calling of or in the conduct of the election. Held as by statute an election should have been held in each ward, the election was irregular but not void.

Section 121 of our Constitution, as amended, in defining the qualifications of an elector, does not prescribe a rule for voting, nor compel a qualified elector to necessarily vote at a place within the boundaries of the ward in which he resides, though every ward is by statute a voting precinct.

Where the election is held, as called for, at the place designated by the lawful municipal authority, and is regularly conducted and a fair and regular canvass and return made of all votes cast, with no fraud charged, in the absence of a statute expressly invalidating the election, it will be upheld.

General statutory registration requirements do not apply to a special city election held for this purpose; the details of registration are to be provided for by municipal ordinance.

Want of registration at this special election did not invalidate such election, in the absence of fraud or of a charge of illegal voting sufficient to change the result.

An allegation that certain named persons illegally voted at such election, without charging that it changed the election result, and where insufficient to impute fraud in the conduct of the election, does not charge facts sufficient to invalidate the election.

The official notice of election by publication was legally given.

A special election for such purposes may be authorized either by resolution or ordinance.

The ballot, in stating the amount of the proposed bond issue, is too indefinite where the amount is stated as “not to exceed $33,000.”

A dual question of (1) increase in debt limit, and (2) bonding after increase of debt limit, both for a stated purpose, may be submitted upon the ballot at one election if the form of the ballot permits such propositions to be voted upon separately.

The fact that both of the questions to be voted upon were, under the form of the ballot, submitted jointly instead of separately did not prejudice or mislead the voter as to the question of increasing the debt limit.

Although such election was abortive in so far as it authorized the issuance of bonds, it was valid in so far as it authorized an increase of the debt limit for such purposes.

Appeal from District Court, Ramsey County; Winchester, Special Judge.

Action by S. Kerlin against the City of Devils Lake and others. From an order vacating an injunctional order, plaintiff appeals. Modified.

Spalding, C. J., dissenting.Flynn & Traynor, of Devils Lake, for appellant. F. T. Cuthbert, City Atty., of Devils Lake (A. R. Smythe, of Devils Lake, of counsel), for respondents.

GOSS, J.

This is an appeal from an order of the district court of Ramsey county dissolving an injunctional order and denying a temporary injunction pending suit. It was heard upon the verified complaint and supporting affidavit and exhibits, together with a verified answer and counter affidavits. The proceeding involves the validity of an election, called and held to increase the debt limit and issue bonds in the sum of $33,000 for the purpose of establishing a municipal light plant in the city of Devils Lake. Questions of law alone are presented. The facts are not in conflict. The case naturally divides into two general divisions: (1) Validity or invalidity of the special election; and (2) the election being sustained, what were the results accomplished thereby?

[1] Appellant urges: That the election held was void for the reason that the city of Devils Lake at the time of the election, and for some time prior thereto, consisted of four wards, from each of which aldermen were elected, and that each ward constituted an election precinct under the express provisions of section 2743, R. C. 1905, as amended by chapter 65 of the Session Laws of 1911, in force when the election occurred on November 6, 1911. That said city contained a population of over 5,000 people, with approximately 700 legal voters residing therein. That instead of holding an election in each ward, as a several precinct of said city, the special election for bonding purposes was held at one place at which all the voters of the city desiring to participate were obliged to vote or refrain from voting. The uncontroverted affidavits of the defendants admit that said election, as conducted, was held at the city fire hall, centrally and conveniently located within said city, and that the total vote there cast was 483. That all special elections had for various purposes have always been held at said place since 1885, notwithstanding that the city had been divided into wards in 1887, and that the holding of all special city elections in this building had been customary throughout that time, and that all special and school elections for more than ten years last past have been so held at said place, all the voters in the city casting their ballots at the one central voting place, and that pursuant to that custom this election was so held. That an unusually large vote (403) for a special election was cast. The total vote of the city cast at the last preceding general election was but 595, and the total vote cast at the last previous city election was 609. That said fire hall was sufficiently large, commodious, and convenient to accommodate all the voters, and the facilities provided would have accommodated more than three times as many voters as voted at said election. That the fire hall is practically in the center of said city and accessible from all parts of the city and is the usual and customary voting place and precinct of the first ward of the city in general elections, and was a convenient place for the voters of the various other wards of the city to use for such purposes. No fraud in the conduct of said election is alleged, and no prejudice to the right of any voter to exercise his franchise is charged, nor is it claimed that the election had was not a full and fair expression of public opinion on the subject evidenced through the ballot box; 327 votes being cast in favor of increasing the debt limit and the issuance of bonds to 156 votes cast against the same, the proposition carrying by more than a two-thirds majority.

[2] The question thus confronting us is whether the ignoring of the wards as election precinct lines and the holding of this election for the whole city at one voting place voids the election under the above circumstances. If so, this case is determined without considering other matters involved.

There can be no question but what the plain statute (section 2743, R. C. 1905) in express words provides that each ward of a city “shall constitute an election district” in the case here presented, and also, “that in city elections separate ballot boxes and poll books shall be provided and kept for each ward.” And that “such wards and precincts shall constitute election districts for all state, county, city and school elections.” And we must remember that, aside from the plain intent of the statute as derived from the unambiguous and plain terms of it, the Legislature in 1911 amended the prior law (section 2743, R. C. 1905) by adding the above provisions requiring the keeping of separate ballot boxes and pollbooks for each ward, and also bringing city and school elections under the statute, thereby making the statute operate uniformly upon all elections, state, county, city, and school, and both general and special. There can be no question but what under the plain statute it was the duty of the city authorities to provide for and have conducted a polling place at some place within each ward to comply with the statute quoted. In addition to this, section 121 of our state Constitution, as amended, provided at the time of this election who should vote thereat by the following constitutional provision: “Every male person of the age of twenty-one years or upwards, * * * who shall have resided in the state one year and in the county six months and in the precinct ninety days, next preceding any election, shall be deemed a qualified elector at such election.”

[3] The proposition of law thus presented is whether this election is merely irregular or instead void when so conducted in disregard of the plain terms of this statute and any inference bearing thereon to be derived from the above constitutional definition of an elector. At first blush, and from abstract reasoning without a careful investigation of the many adjudications throwing light on the question before us, one would likely conclude that the election was void. But research discloses that the great weight of authority, if not all the authority, is the other way, and that public policy enters into the question. On reasons of public policy courts have been reluctant to hold elections void, except where imperatively necessary from the plain expressed legislative purpose. Thus, where the Legislature says, as in registration, that a vote shall not be received from a nonregistered voter, nothing remains to the courts but to give force to the declared legislative intent, and such is our law. See Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95. And, where the court must choose between holding valid or invalidating an entire election, the reason for holding the election valid would be...