McVeigh v. Spang, 27531.

• Decision Date: 06 December 1929
• Docket Number: No. 27531.,27531.
• Citation: 228 N.W. 155,178 Minn. 578
• Parties: McVEIGH v. SPANG.
• Court: Minnesota Supreme Court

228 N.W. 155

178 Minn. 578

McVEIGH v. SPANG.

No. 27531.

Supreme Court of Minnesota.

December 6, 1929.

Appeal from District Court, Itasca County; Martin Hughes, Judge.

Election contest by William McVeigh against M. A. Spang. From an order denying his motion for a new trial, contestant appeals. From the judgment, contestee appeals. Affirmed.

C. C. McCarthy, of Grand Rapids, for appellant.

R. A. McOuat, of Grand Rapids, and Naughtin & Henley, of Hibbing, for respondent.

OLSEN, C.

This is an election contest by William McVeigh, as contestant, against M. A. Spang, contestee, candidates for the office of county commissioner in the fourth district of Itasca county at the last election. Contestant appeals from an order denying his motion for a new trial. Contestee has appealed from the judgment, for the purpose of raising questions as to the election not raised by contestant's appeal.

The county canvassing board declared the result to be that contestant had received 1,279 votes, and the contestee 1,292 votes at the election. The board did not include in its report and findings any direct statement or declaration that the contestee was elected to the office. The board failed in some respects, not here very material, to comply with section 474, Gen. St. 1923, as to reporting total number of votes cast in the county, total number of ballots cast in each precinct, and the total number of registered names of male and female voters.

Inspectors were appointed in the district court to recount the ballots. They found and counted 1,285 votes for contestee and 1,290 for contestant. This included disputed and undisputed ballots, except 2 held defective as showing no choice and not counted by the inspectors. The court, at the trial, was called upon to determine the validity of disputed ballots. It found that the inspectors had counted for contestant 10 ballots which the court found to be invalid and deducted from contestant's 1,290 votes, thereby reducing his valid votes to 1,280. The court further found that 1 of the ballots not counted by the inspectors was a vote for contestee and should be so counted, and that 4 disputed ballots counted by the inspectors for the contestee were invalid and should be deducted from his votes, thus leaving the valid votes for contestee 1,282, and that he was elected. These 15 ballots so found by the court to have been either erroneously counted or erroneously excluded by the inspectors are challenged by the contestant on this appeal.

The contestee presents two other questions for review: First, that, the county canvassing board having failed in its report and return to declare the contestee elected to the office, there was no determination to appeal from, and the appeal was premature and presented nothing for the district court to try; second, that the evidence to identify the ballots from precinct No. 1 of Grand Rapids was insufficient to show that they were the identical ballots cast in the election in that precinct; that the evidence tended to show that these ballots had been tampered with and changed, and had not been properly kept after the election; and that the court should not have received them in evidence.

1. The duties of the county canvassing board are prescribed by section 474, Gen. St. 1923. It requires the board to report the names of all persons receiving votes for any county office and the number of votes received by each. Section 476 of the statute provides that the board, having completed its canvass, shall declare the person receiving the highest number of votes for each county office duly elected thereto. Section 488 provides that any voter may contest the election of any person who is declared elected to any county office by filing notice of appeal within 10 days after the canvass is completed and causing copy of the notice to be served on the contestee in such manner and within such time as the court shall direct. While the canvassing board properly should declare the person receiving the highest number of votes to be elected, that is but a necessary conclusion from their finding as to the number of votes received by each candidate. Nothing to the contrary appearing, the finding of the canvassing board that a candidate has received the highest number of the votes cast for a certain office is in legal effect a declaration that he is elected to that office. There is authority for holding that the canvassing board must canvass the vote and declare the result before any appeal from their determination can be taken. But the important function of the board is to canvass the vote and determine the number cast for each candidate. When they have done that and stated and declared the number of votes found cast for each candidate, they have declared the result of the election. No case has been brought to our attention where, after canvassing the returns and determining the number of votes received by each candidate, the mere fact that the board failed to expressly declare the one having the highest vote elected was an insufficient declaration of the result to authorize an appeal or contest. State v. Churchill, 15 Minn. 455 (Gil. 369), does not go that far.

2. The court did not err in receiving in evidence the ballots from precinct No. 1 of Grand Rapids. The questions whether the ballots have been so kept and preserved that they may safely be received in evidence, and are intact and genuine, are questions of fact for the decision of the trial court. Moon v. Harris, 122 Minn. 138, 142 N. W. 12; Schultz v. Shelp, 131 Minn. 303, 155 N. W. 97. There was in those two cases as much or more evidence tending to impeach the identity and to show lack of proper care in keeping the ballots as in the present case. Even under the rule applied in Newton v. Newell, 26 Minn. 529, 6 N. W. 346, that the identity of the ballots must be shown beyond a reasonable doubt, there was evidence sufficient to sustain the ruling of the court.

3. Thirteen ballots were each marked with a distinct X on the back thereof. All of these marks, except one, were found on ballots from precincts Nos. 2 and 4 in the village of Grand Rapids, the county seat. The commissioner district was composed of 14 precincts, 4 in the village of Grand Rapids and 10 country precincts. The ballots, when delivered to voters, had on the back thereof the heading "Official Ballot," followed by the facsimile printed signature of the county auditor, and below that two lines, upon each of which were the written initials of one of the judges of election in the particular precinct. Following the initials of each judge and at the end of the line on which the initials were placed was the printed word "Judge." Eight of the X-marks in question were made on the line, between the initials of the election judge and the printed word at the end of the line. In three instances the mark was placed just after the printed word. In one instance the mark was placed before the initials of an election judge, and in one case below the printed word following the initials. The court found that these marks were marks of identification placed thereon by the voters with intent to identify their ballots, and rejected all ballots so marked.

The question presented is whether the court was justified in rejecting all or any of these ballots on the ground stated. There was no direct evidence as to by whom, or under what circumstances, or with what intent, these ballots were marked.

In precinct No. 2 of Grand Rapids there were 6 of these marked ballots, 5 of them for contestant and 1 for contestee. This peculiarity appears in the marking: The 5 ballots for contestant were each marked on the line after the initials of the election judge, J. H. Sometimes his initials appeared on the first line, with the initials of the other judge on the second line. At other times his initials appeared on the second line with the initials of the other judge on the line above. But, no matter on which line his initials appeared, the mark followed the initials J. H. The ballot for the contestee had the mark placed after the initials of the other judge.

There were also 6 of these marked ballots found in precinct No. 4 of Grand Rapids, 3 for each candidate. There the peculiarity above noted did not appear. Four of the marked ballots, 2 for each candidate, were marked on or near the line upon which were the initials of one judge, and the other 2, 1 for each candidate, were marked on the line having the initials of the other judge.

The fact that 12 of these markings were found in 2 precincts in the village of Grand Rapids, and only one such marking in the other 12 precincts, is one of the circumstances shown.

A mark placed upon the back of a ballot in the space provided for the initials of the election judges is more of an identification mark than if placed on the face of the ballot. The voter, before returning his ballot, is required to fold it so as to conceal its face and all marks thereon, and leave exposed only the indorsement, the facsimile signature, and initials of the judges on the back thereof. Section 424, Gen. St. 1923. The purpose of leaving this space on the back of the ballot exposed is so that, when receiving the ballot, the election judges may, by inspection, identify it as an official ballot duly initialed by them. When the voter returns his ballot he is identified by the calling of his name and residence, and the fact that he has voted is entered on the list of voters. Section 425, Gen. St. 1923. Before a ballot is deposited in the ballot box, therefore, the election judges know that it is the ballot of that particular voter. In inspecting the back of such ballot to see that it is official and bears the initials of the judges, any distinct mark placed in the space for the initials of the judges is necessarily seen by the election judge and identifies the ballot, which identification and disclosure become complete when that ballot is examined and canvassed by the...