Nelson v. Bullard
| Decision Date | 18 May 1923 |
| Docket Number | 23,426 |
| Citation | 194 N.W. 308,155 Minn. 419 |
| Parties | E. H. NELSON v. RUTH BULLARD |
| Court | Minnesota Supreme Court |
E. H Nelson gave notice of appeal and contest against the action of the county canvassing board in declaring Ruth Bullard elected register of deeds for Chippewa county at the November, 1922, election. The matter was heard by Qvale, J who made findings and ordered judgment in favor of Ruth Bullard. From the judgment entered pursuant to the order for judgment, contestant appealed. Affirmed.
Court's count of ballots was correct.
1. Of 21 disputed ballots, referred to in the opinion, the court rightly counted 9 for the contestant, 6 for the contestee, and rejected 6 as either expressing no choice or as having identifying marks.
Vote of school teacher properly deducted from contestee's total.
2. The evidence sustains the finding of the court that a certain school teacher, who voted for the contestee, was not a legal voter in the precinct where she voted, and her vote was rightly deducted from the total counted for the contestee by the inspectors.
Illegal vote should have been deducted from contestant's total.
3. An elector, not a voter in the precinct where she voted, testified that she voted for contestant. The court refused to find for whom she voted. She was called as a witness by the contestant. Her testimony was positive, undisputed and unimpeached, and so far as the record shows was not improbable or inconsistent or discredited. Following Second Nat. Bank v. Donald, 56 Minn. 491, and other cases, it is held that the testimony should have been credited, that the illegal vote should have been found cast for the contestant, and that one vote should have been deducted from the total counted by the inspectors for contestant.
Marked ballot cast without oath invalid.
4. The requirement of G.S. 1913, § 463, that an elector, before receiving assistance in marking his ballot, must make an oath "that he cannot read English, or that he is physically unable to mark his ballot," is mandatory, and a ballot cast without such oath is invalid.
Voter did not receive assistance and his vote rightly counted.
5. Reviewing the evidence it is held that a certain voter, who voted for the contestee, did not receive assistance within the meaning of the statute, and that the court was right in refusing to deduct her vote from the total of the votes counted for the contestee.
Assisted voters.
6. Six voters received assistance. Two of them voted for the contestee. Whether the other four voted for the contestee is not determined, such determination being unnecessary to a decision.
Bert O. Loe, C. A. Fosnes and John C. Haave, for appellant.
J. O. Haugland and A. W. Ewing, for respondent.
At the November, 1922, election the contestant, E. H. Nelson, and the contestee, Ruth Bullard, were rival candidates for the office of register of deeds of Chippewa county. The county canvassing board found that Mrs. Bullard was elected. Upon appeal the district court found that she was elected. Judgment was entered accordingly on January 16, 1923. On the same day Nelson appealed from the judgment. No case was settled. This appeal presents for review the sufficiency of the findings to sustain the conclusion and judgment, but not the sufficiency of the evidence to sustain the findings. On January 22, 1923, Mrs. Bullard appealed, claiming that parts of the judgment determining certain votes against her, or in favor of Nelson, were erroneous. A case was settled on March 22, 1923. This appeal brings the evidence and the question of its sufficiency to sustain the findings. The two appeals were consolidated. They are considered together. The final question is whether the judgment is right in adjudging Bullard elected.
The inspectors appointed by the court found that Nelson received 2,463 votes and Bullard 2,466. A number of ballots were not counted by the inspectors. They were referred to the court. Seven were absent voter ballots. They were not counted. Neither party complains. Thirty-one were undisputed at the trial. Nineteen of these were for Mrs. Bullard and 12 for Nelson, making 2,485 for Mrs. Bullard and 2,475 for Nelson, about which there is no question. Here the dispute starts. The court, considering the ballots returned, and certain votes claimed to be illegal, found that Nelson received 2,484 votes and Bullard 2,490.
1. There were 21 disputed ballots of which the court counted 9 for Nelson and 6 for Bullard. It found that 6 either expressed no choice or bore identifying marks, and should not be counted for either party.
The court was right in its disposition of these ballots. They do not call for particular discussion. Seven were ballots used in Montevideo having printed thereon the names of the commissioners of another district, which were stricken out by pen or pencil. There is no question of how the voters intended voting. The others involve questions from time to time passed upon in other election contests as to the intent of the voter whose markings were not always certain, or marks claimed to be identifying in character.
2. The court held invalid the vote of Miss Anderson, a school teacher, who voted for Bullard in the precinct in which she was teaching. The holding was upon the ground that she was not a legal voter in that precinct. The evidence sustains the finding that she resided elsewhere with her parents. This vote the court rightly deducted from the total found by the inspectors for Bullard.
3. The court refused to find for whom Miss Rear voted. No one questions that she was not a legal voter in Montevideo where she voted. The pertinent inquiry is whether she voted for the contestant or the contestee or for neither. Her relevant testimony upon this issue is as follows:
There was no cross-examination. Nothing further was developed. Her testimony was not disputed. No circumstances opposed to it were shown. It was not unreasonable.
This rule was applied in Grover v. Bach, 82 Minn. 299, 84 N.W. 909, on the issue of the ownership of a note, and in Campbell v. Canadian Northern Ry. Co. 124 Minn. 245, 144 N.W. 772, upon the question of the effect of a failure to couple air in a train. If the evidence contains improbabilities or contradictions furnishing a reasonable ground for not believing it true, it may be rejected. Hawkins v. Sauby, 48 Minn. 69, 50 N.W. 1015; Anderson v. Liljengren, 50 Minn. 3, 52 N.W. 219. In Olsson v. Midland Ins. Co. 138 Minn. 424, 165 N.W. 474, a number of the cases are collated. As noted in a later part of the opinion circumstantial evidence is competent to show for whom an illegal vote was cast.
Here, so far as the evidence itself shows, the testimony of the witness was straightforward. She was the contestant's witness. To some extent he vouched for her trustworthiness when he produced her. He was not bound by her testimony. He could not impeach her by so-called direct impeachment; but he could show by other evidence that her testimony was untrue. If he was misled into calling her, supposing that her testimony as to the candidate for whom she voted would be different, he could have shown it and might have been permitted to cross-examine her. There was no suggestion of surprise. If she had said that she voted for Bullard her testimony would not be questioned. The only reason for considering it differently is that the answer was unfavorable to the questioner. That, without more, is not a circumstance justifying its rejection. The rule applied is a necessary one if an appellate court is to review the sufficiency of evidence to sustain findings of fact. The illegal vote should be held as one for Nelson and should be deducted from his total counted by the inspectors.
4. The remaining controversy concerns the votes of 7 voters. They are claimed by Nelson to be illegal because the voters had assistance in marking and did not take the prescribed oath. He claims they should be deducted from the Bullard votes reported by the inspectors. The trial court denied his contention. It found that these voters voted for Bullard, but that the statute prescribing an oath was not mandatory, and, there being no fraud, their votes should not be deducted from the count of the inspectors.
Our election law contemplates secrecy. A voter is not permitted to divulge to anyone within the polling place for whom he votes, or receive assistance in the preparation of his ballot except as specially authorized. Nelson relies upon G.S. 1913, § 463, which is as follows:
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