Pederson v. Board of Commissioners of Billings County

• Decision Date: 29 June 1912
• Court: North Dakota Supreme Court

137 N.W. 484

23 N.D. 547

PEDERSON v. BOARD OF COMMISSIONERS OF BILLINGS COUNTY et al

Supreme Court of North Dakota

June 29, 1912

Rehearing denied September 19, 1912.

Appeal by interveners from a judgment of the District Court for Billings County, Templeton, J., in plaintiff's favor in a proceeding to test the correctness of certain election returns.

Reversed.

Golden Valley entitled to have its certificate certified to the secretary of state.

R. M Andrews, George R. Robbins, and George A. Bangs, for appellant.

Sheets of paper upon which was recorded the result of the county division votes became a part of the official canvass when folded and placed between the leaves thereof. State ex rel. Sunderall v. McKenzie, 10 N.D. 132, 86 N.W. 231.

Inaccuracy and imperfections in the returns of precinct officers may be corrected by parol evidence. 10 Am. & Eng. Enc. Law, 829 note 9; Howard v. Shields, 16 Ohio St. 190; Powers v. Reed, 19 Ohio St. 189; People v Vail, 20 Wend. 12; O'Laughlin v. Kirkwood, 107 Mo.App. 302, 81 S.W. 512; McEuen v. Carey, 123 Ky. 536, 96 S.W. 850; Stemper v. Higgins, 38 Minn. 222, 37 N.W. 95; McCrary, Elections, § 503; 5 Enc. Ev. 69; Broaddus v. Mason, 95 Ky. 421, 25 S.W. 1060; Jones v. Glidewell, 53 Ark. 161, 7 L.R.A. 831, 13 S.W. 723; State ex rel. White v. Scott, 171 Ind. 362, 86 N.E. 409; Prairie v. Lloyd, 97 Ill. 197; Stimson v. Sweeney, 17 Nev. 309, 30 P. 1000; Mayo v. Freeland, 10 Mo. 630; Dixon v. Orr, 49 Ark. 238, 4 Am. St. Rep. 42, 4 S.W. 774; Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; Merritt v. Hinton, 55 Ark. 12, 17 S.W. 270; Dial v. Hollandsworth, 39 W.Va. 1, 19 S.E. 558.

Before the ballots are admissible in evidence in an election contest it must be made to appear affirmatively by the contestant that they are intact and genuine and have not been tampered with. McCrary, Elections, § 471, p. 346; Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018; Davenport v. Olerich, 104 Iowa 194, 73 N.W. 603; Doak v. Briggs, 139 Iowa 520, 116 N.W. 114; DeLong v. Brown, 113 Iowa 370, 85 N.W. 624; Fenton v. Scott, 17 Ore. 189, 11 Am. St. Rep. 801, 20 P. 95; Hartman v. Young, 17 Ore. 150, 2 L.R.A. 596, 11 Am. St. Rep. 787, 20 P. 17; Farrell v. Larsen, 26 Utah 283, 73 P. 227; Fishback v. Bramel, 6 Wyo. 293, 44 P. 840; Eggers v. Fox, 177 Ill. 185, 52 N.E. 269; Coglan v. Beard, 65 Cal. 58, 2 P. 737; Tebbe v. Smith, 108 Cal. 101, 29 L.R.A. 673, 49 Am. St. Rep. 678, 41 P. 454; Rhode v. Steinmetz, 25 Colo. 308, 55 P. 814; Powell v. Holman, 50 Ark. 85, 6 S.W. 505; Newton v. Newell, 26 Minn. 529, 6 N.W. 346; Albert v. Twohig, 35 Neb. 563, 53 N.W. 582; Martin v. Miles, 40 Neb. 135, 5 N.W. 732; McMahon v. Crockett, 12 S.D. 11, 80 N.W. 137.

The following courts have approved the sticker ballots: Roberts v. Bope, 14 N.D. 311, 103 N.W. 935; Snortum v. Homme, 106 Minn. 464, 119 N.W. 59; Erickson v. Paulson, 111 Minn. 336, 126 N.W. 1097; People ex rel. Bradley v. Shaw, 133 N.Y. 493, 16 L.R.A. 606, 31 N.E. 512; People ex rel. Goring v. Wappingers Falls, 144 N.Y. 616, 39 N.E. 641; State ex rel. Harkins v. Roundtree, 28 Wash. 669, 69 P. 404; Coughlin v. McElroy, 72 Conn. 99, 77 Am. St. Rep. 301, 43 A. 854; DeWalt v. Bartley, 146 Pa. 529, 15 L.R.A. 771, 28 Am. St. Rep. 814, 24 A. 185.

W. F. Burnett and Engerud, Holt, & Frame, for respondent.

When the evidence discloses that the county board's abstract was not properly made, and was not a tabulation of the precinct returns, but was made up in part from unauthorized data, it obviously loses its effect as evidence of what the aggregate vote was. People ex rel. Judson v. Thatcher, 55 N.Y. 525, 14 Am. Rep. 312; People ex rel. Hardacre v. Davidson, 2 Cal.App. 100, 83 P. 161; Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272; Londoner v. People, 15 Colo. 557, 26 P. 135; State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706; Spencer v. Morey, Smith, Elec. Cas. 437; Gause v. Hodges, Smith, Elec. Cas. 291; Small v. Tillman, 2 Ellsw. Elec. Cas. 432.

He who claims the majority of the vote must prove that fact, whether he is contestant or defendant. People ex rel. Judson v. Thatcher, 55 N.Y. 525, 14 Am. Rep. 312; Lawrence County v. Schmaulhausen, 123 Ill. 321, 14 N.E. 255; Scholl v. Bell, 125 Ky. 750, 102 S.W. 248; People ex rel. Hardacre v. Davidson, 2 Cal.App. 100, 83 P. 161; People ex rel. Keeler v. Robertson, 27 Mich. 116; Littlefield v. Newell, 85 Me. 156, 27 A. 156; High Extr. Legal Rem. §§ 629, 630.

Tally sheets cannot be accepted as substitutes for the returns prescribed by statute. State ex rel. Sunderall v. McKenzie, 10 N.D. 132, 86 N.W. 231; State ex rel. Davis v. Willis, 19 N.D. 209, 124 N.W. 706; People ex rel. Ryan v. Nordheim, 99 Ill. 553; Jackson v. Wayne, Cl. & H. Elect. Cas. 47; Chrisman v. Anderson, 1 Bart. Elect. Cas. 328. Opinions of Justices, 68 Me. 582; Perry v. Whitaker, 71 N.C. 473; Simon v. Durham, 10 Ore. 52.

There being no returns to furnish prima facie proof of what the vote was, the ballots themselves were the best evidence of the vote. Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018; Reynolds v. State, 61 Ind. 423; People ex rel. Keeler v. Robertson, 27 Mich. 129; Hartman v. Young, 17 Ore. 150, 2 L.R.A. 598, 11 Am. St. Rep. 787, 20 P. 17; Sinks v. Reese, 19 Ohio St. 319, 2 Am. Rep. 397.

Sticker votes are void. Waterman v. Cunningham, 89 Me. 295, 36 A. 395; Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018; Atty. Gen. v. Duncan, N.H. , 78 A. 925; Re Wilcox, 27 R. I. 117, 60 A. 838.

OPINION

BURKE, J.

At the general election of 1910 there were submitted to the voters of Billings county four propositions to divide the county. The official certificate returned by the canvassing board showed that two of the new counties had been defeated. One of the new counties, Golden Valley, received 837 votes for and 756 votes against, according to the said certificate. A contest was instituted by plaintiff to test the correctness of the said returns, and the proceedings had in district court resulted in findings adverse to Golden Valley county, by whom this appeal has been taken.

Plaintiff has challenged the correctness of the election certificate in appropriate proceedings, and it becomes necessary to review the canvass in all precincts called to our attention by the contestant. These number some twelve. The first six precincts are so similarly circumstanced that we will dispose of them together.

1. The election returns from several precincts made by the township election officers were in the condition following: The regular statement or certificate of votes printed in the back of the poll book contained no forms for the certificate of the election returns upon county division. Instead of writing such certificate in the said returns, the election officers took the tally sheet prepared by themselves, totaled the votes thereupon, and attached it by metallic fasteners or by paste to the statement of the general vote. The officers of the said precincts testify that they thus intended the tally list to become a part of the certificate. Contestant refers to the case of State ex rel. Sunderall v. McKenzie, 10 N.D. 132, 86 N.W. 231, which he claims decides that the tally sheets cannot become part of the official returns. We think he has not correctly read the above opinion. It holds merely that the tally list is not per se part of the official return, for the very good reason that it is not certified. It is going a long step further to say that the tally sheet might not be incorporated into the election returns if properly certified, or that the election returns may not be supplemented by having attached thereto a duly certified tally list. We take it that the election officers were attempting to make a proper return of the vote upon division. Finding no place upon the blank certificate furnished to them, they amended the certificate by adding thereto upon another sheet of paper physically attached thereto a statement of the votes as canvassed by them. These additional sheets of paper contain the statement, "Golden Valley County" for new county (in one instance) 137; against new county 26, and also included the marks made by the clerks in canvassing thus, "1111" for five votes, etc.

We are of the opinion that as so attached the whole became the election return for such precinct, and that it should not be rejected because the tally mark appeared thereon. The main point being that it was duly certified by the proper officers along with the original return sheets, which, by the way, consists of five pages itself fastened together in the poll book. If the contention of the contestant is correct, only the last sheet containing the signatures of the election officers would be competent as a return sheet.

The learned trial court, who reached a contrary conclusion, was mislead by the testimony of the auditor McGregor who was testifying to an unofficial return sheet that is attached to the poll book and perforated so as to be readily removed and mailed to the auditor for the benefit of the public. When questioned by the court about the official certificate which is sealed up until opened by the canvassing board, the auditor understood the inquiry to be about the unofficial...