Pawlowski v. Thompson
| Decision Date | 01 February 1936 |
| Docket Number | 7911 |
| Parties | WILLIAM A. PAWLOWSKI, Respondent, v. THOMAS THOMPSON, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Meade County, SD
#7911—Reversed
Atwater & Helm, Sturgis, SD
Attorneys for Appellant.
John T. Milek, Sturgis, SD
Attorney for Respondent.
Plaintiff and defendant were nominees for the office of school district clerk of Tilford school district at the annual school district election held on the 18th day of June, 1935. The defendant was declared elected, and plaintiff brought this proceeding to contest the result as declared by the election board. The basis of plaintiff’s contest is that ten persons appearing at the annual meeting cast their votes for the plaintiff; that the election officers refused to count the votes of these ten persons; that these votes, if counted would have elected the plaintiff. The facts disclosed that these ten persons, who were denied the right to vote, appeared at the school district meeting and cast their ballots for the plaintiff. However. when the election board discovered that these ten persons had voted, they refused to count any of the ballots that had been cast, announced to the assembly that the ten were not entitled to vote, and then proceeded to take another ballot excluding the ten persons in question. The result of this second ballot was that the plaintiff received five votes and the defendant eight, and the board thereupon declared the defendant elected. The trial court held that the ten persons whose votes were refused were legally entitled to vote, and decreed plaintiff elected to the office. Defendant has appealed.
As stated above, this is an election contest proceeding brought by the plaintiff as a candidate for the office claiming that he was elected, thereto and claiming the office. Under these circumstances it is incumbent upon plaintiff to establish his right to the office, and, failing to do that, he must fail so far as this proceeding is concerned.
We pass for the moment the question of the right of the ten persons to vote, and consider, first, the manner in which the election was conducted, and whether that election, in the light of the facts disclosed by this record, conceding the right of the ten persons to vote, shows plaintiff’s right to the office.
Section 123 of Chapter 138, Laws of 1931, provides that the voting at the election at the annual school district meeting “must be by ballot.” The only ballots cast by these ten persons were included in that vote which was never counted. Conceding that the ten whose votes were finally refused might testify for whom they cast their ballot on the first vote, we are confronted with the fact that the record is entirely silent regarding the result of that first election. Thirteen persons, other than the ten whose votes were not counted, voted on both occasions. We will not conclude that these thirteen voted the same in the first voting as they did in the second when their votes were canvassed. Any such conclusion would of necessity be based upon nothing but conjecture and guess. Any one of a number of different reasons might have caused all or a part of these thirteen persons to change their vote when voting the second time. We suggest that it was very probable that some (perhaps all five who voted for the plaintiff in the second voting) felt that it was wrong to deny the ten the right to vote, and,...
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