Murray v. Floyd
| Decision Date | 12 November 1943 |
| Docket Number | No. 33512.,33512. |
| Citation | 216 Minn. 69,11 N.W.2d 780 |
| Parties | MURRAY v. FLOYD. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Edward A. Freeman, Judge.
Election contest by Stuart A. Murray against Richard C. Floyd. From the judgment entered, contestant appeals.
Affirmed.
Stone, Manthey & Carey, of Virginia, for appellant.
Ben P. Constantine, of Eveleth, and Fred A. Cina, of Virginia, for respondent.
This is an election contest to determine whether contestant, Murray, or contestee, Floyd, was elected county commissioner of the sixth district in St. Louis county at the general election held on November 3, 1942. Contestant, contestee, and others were candidates for nomination in the primary. Contestee and one Indihar were nominated. Although contestant was defeated in the primary, he became a so-called "sticker" candidate at the election. A volunteer committee, organized to espouse his candidacy, caused different kinds of stickers to be printed and placed in the hands of voters for use at the election. Some had printed on them contestant's name with the words "County Commissioner, Sixth District" and a square space for marking the ballot. Others simply bore his name. Of the votes for contestant, approximately equal numbers were cast by the use of stickers and by writing his name in the blank space for the purpose on the ballots.
The court below found that 4,864 votes were cast for contestee and 4,812 for contestant and dismissed the action. Contestant appeals. On the appeal he challenges 93 ballots. He claims that some of these were erroneously not counted for him and that the others were erroneously counted for contestee.
1. Most of the challenged ballots bear such marks as two cross marks for a candidate, erasures, retracings, heavy cross-mark lines, crosses with a light line made by the voter in bringing the pencil up to commence a cross line, lines underscoring the name of contestant, single lines made in the space for marking the ballot opposite the name of the candidate as if the voter started to make a cross and then changed his mind, an indecent drawing on the face of a ballot, and cross marks and numbers on the back of ballots. The question is whether such marks are distinguishing marks requiring rejection of the ballots.
We have so recently stated the applicable rules in cases like Aura v. Brandt, 211 Minn. 281, 1 N.W.2d 381, Hanson v. Emanuel, 210 Minn. 271, 297 N.W. 749, and Pye v. Hanzel, 200 Minn. 135, 273 N.W. 611, that we do not deem it necessary to do more than indicate what they are. In the cited cases we held that superfluous cross marks on the face of a ballot and cross marks and numbers on the back thereof are distinguishing marks requiring rejection of the ballot, and that erasures, obliterations of cross marks, retracings, heavy cross mark lines, flourishes and other lines incidental to making cross marks, a line made in the square opposite a candidate's name as if the voter, who used complete cross marks for voting, started to make a cross mark which he did not complete, and indecent words written on a ballot are not distinguishing marks. See Greene v. Bjorseth, 350 Ill. 469, 183 N.E. 464. We have carefully examined the challenged ballots and find, with the exceptions to be presently mentioned, that the trial judge correctly applied the rules in determining the validity of all such ballots. Apparently through oversight, one ballot (Exhibit M-20) was not counted for contestant. Three ballots (Exhibits F-28, F-35, and F-58), which were counted for contestee, should not have been counted for him. On one ballot contestant's name was underscored with two heavy lines. It was properly rejected. Superfluous lines which serve to identify a ballot are distinguishing marks requiring its rejection.
The rule that superfluous cross marks made upon the ballot by the voter are distinguishing marks, vitiating the ballot, applies to ballots where the voter uses a sticker the same as in other cases. Our statute does not expressly authorize voting by stickers. Minn.St.1941, § 206.16(3), provides that a voter may write in the names of persons, other than the regular nominees, for whom he desires to vote, in the blank spaces under the printed names of the candidates, and that, where a name is so written, it shall be counted as balloted for the person whose name is written, whether marked in the square or not. By judicial construction, the use of a sticker is held to be the same as writing in a name. Adams v. McMullen, 184 Minn. 602, 239 N.W. 594; Snortum v. Homme, 106 Minn. 464, 119 N.W. 59. Since the use of a sticker stands upon the same basis as writing in a name, the statute leaves it optional with the voter to use a cross mark also, but it does not permit him after registering his intention with a cross mark to add additional cross marks and thus identify his ballot. Some point is made that voters were misled by the various types of stickers used at the election. We find no merit in the point.
An erasure or obliteration is not a distinguishing mark which voids the ballot for the simple reason that the statute, Minn. St.1941, § 206.50(8), authorizes erasures and directs that ballots having erasures shall be counted for the person for whom they were evidently intended. By judicial construction, an obliteration is held to be the equivalent of an erasure. Pye v. Hanzel, 200 Minn. 135, 273 N.W. 611. To reject such ballots would be contrary to the mandate of the statute to count them. Contestant's argument to the contrary entirely leaves out of view the provisions of the statute. It is plain that the statute regards erasures and obliterations as incidental to legitimate voting and that ballots containing the same are to be counted the same as others. See Pye v. Hanzel, supra; Hodgson v. Knoblauch, 268 Ill. 315, 109 N.E. 338, Ann.Cas.1917E, 653.
It has been earnestly urged, and in this the trial court joins, that indecent remarks and drawings on ballots should be considered identifying marks and that we overrule our prior decisions to the contrary. In cases like Truelsen v. Hugo, 81 Minn. 73, 83 N.W. 500, and Frajola v. Zanna, 193 Minn. 48, 257 N.W. 660, we held that an indecent or impertinent remark was not a distinguishing mark, upon the theory that the same obviously are not made to identify the ballot. In Pye v. Hanzel we disapproved the theory of our prior decisions and said (200 Minn. 140[c], 273 N.W. 614[c]): ; but we did not decide the case upon that ground or overrule our prior decisions.
The provisions of the present election laws relating to voting and to the canvassing of ballots, Minn.St.1941, §§ 206.16 and 206.50, reenacted prior statutes Mason St.1927, §§ 424 and 454. The prior laws had been judicially construed prior to the enactment of the later ones. We are not free to change at will our prior rulings construing the present election laws, because, as held in Enger v. Holm, 213 Minn. 154, 6 N.W.2d 101, the rule that the reenactment of a prior statute presumptively constitutes an adoption of the prior construction of the reenacted statute applies with persuasive force with respect to these particular statutes. Furthermore, the statutory rule is that courts "may be guided" by the presumption in construing statutes. L.1941, c. 492, § 17(4). The presumption is but an aid in ascertaining the legislative intent. What we said in Pye v. Hanzel to the effect that an indecent remark written on a ballot serves to identify it constituted a disapproval of the basis for our prior holdings that such a mark is not a distinguishing one and forecast a probable change of ruling. Under the circumstances, the presumption is that the reenactment adopted the prior construction as unsettled by our decision in Pye v. Hanzel and as subject to further consideration of the question with a probable change of rule as forecast. In view of these circumstances, we think that the reenactment does not preclude a reconsideration of the question.
After all, the fact remains that an indecent remark or drawing on a ballot serves to identify it as much as a superfluous cross or other mark and that such a remark or drawing has no legitimate connection with bona fide voting. We therefore hold that an indecent remark or drawing on a ballot, placed there by the voter, is a distinguishing mark and is ground for rejecting the ballot. Anything to the contrary in our prior cases, such as Truelsen v. Hugo, 81 Minn. 73, 83 N.W. 500, and Frajola v. Zanna, 193 Minn. 48, 257 N.W. 660, is overruled. Therefore, ballot exhibit F-2, which was counted for contestee under the rule of our prior cases, should not be counted for him.
We are also urged to hold that a cross mark placed opposite a blank space for writing in the name of a candidate is also a distinguishing mark. The question is an open one. In numerous cases such as Aura v. Brandt, 211 Minn. 281, 1 N.W.2d 381; Hanson v. Emanuel, 210 Minn. 271, 297 N.W. 749; Pye v. Hanzel, 200 Minn. 135, 273 N.W. 611; Prenevost v. Delorme, 129 Minn. 359, 152 N.W. 758; and Nelson v. McBride, 117 Minn. 387, 135 N.W. 1002, we held that a cross mark placed opposite a blank space for writing in a name on a ballot is not a vote for any candidate. In Aura v. Brandt, 211 Minn. at page 288(g), 1 N.W.2d at page 387(g), there is a dictum to the effect that such a mark is without apparent purpose except to identify the ballot, and cases from Indiana, Iowa, and Nevada are cited to support that view. To these should be added Hansen v. Lindley, 152 Kan. 63, 102 P.2d 1058. These cases do not discuss the reasons for decision but hold that placing a mark before a blank on a ballot shows that it was done intentionally. Michigan and California, as pointed out in Aura v. Brandt,...
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