Torkelson v. Byrne
| Decision Date | 13 November 1937 |
| Docket Number | 6471 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Ballots which have not been indorsed as required by section 985, Comp.Laws 1913, are void whether they be absent voters ballots or regular ballots.
2. Ballots which are not indorsed by the official stamp and initials until after they have been deposited in the ballot box are void.
3. A United States postmaster is not an officer authorized to administer the oath to an absent voter within the meaning of section 998, Comp.Laws 1913, and section 833, Comp.Laws 1913 chapter 183, Session Laws of 1929; and if it appears from the jurat that such oath was administered by a postmaster, the ballot of such absent voter must be rejected as defective and void. Section 1001, Comp.Laws 1913.
4. On a trial de novo the findings of the trial judge who saw and heard the witnesses are entitled to appreciable weight.
5. The burden of proof is on the contestant to prove the grounds of his contest.
6. A qualified elector cannot be compelled to disclose for whom he voted. However, this privilege of secrecy is entirely a personal one and a voter himself may waive his privilege and testify for whom he voted.
7. Even though the district court erroneously denies a qualified elector's claim of privilege and thereafter the elector testifies that he voted for one of the parties to the contest, such evidence is not to be excluded from the contest inasmuch as the privilege is purely personal to the elector and neither party to the contest has the right to exclude such evidence.
8. The testimony of a voter that his ballot was not indorsed is not rendered inadmissible by the statute (section 1042, Comp.Laws 1913) prohibiting a voter from identifying his ballot.
9. While the original ballots are the best evidence when their identity has been established, if such identity cannot be established the ballots lose their character as primary evidence and then secondary evidence is admissible. In such a case the testimony of the voter is admissible as to (1) whether or not his ballot was endorsed, and (2), if not, for whom he cast such void ballot.
10. A motion to reopen a case for the purpose of cross examining a witness for impeachment purposes is addressed to the sound judicial discretion of the trial court, and that court's ruling thereon will not be disturbed in the absence of a manifest abuse of such discretion.
11. An objection that the cross-examination of a witness exceeded its proper scope cannot be raised for the first time on appeal.
12. An election will not be set aside because of irregularity on the part of the precinct inspector, unless it appears that such irregularity affected the result.
Appeal from District Court, Bowman County; Harvey J. Miller, Judge.
Election contest by Theo. B. Torkelson against M. S. Byrne for the office of State's Attorney of Bowman County. From a judgment for contestee Byrne, contestant Torkelson appeals.
Affirmed.
Paul W Boehm and Theo. B. Torkelson, per se, for appellant.
The statute requiring the stamping and initialing of the ballots is mandatory and must be strictly enforced by the court. Miller v. Schallern, 8 N.D. 395, 79 N.W. 865; Lorin v. Seitz, 8 N.D. 404; Howser v Pepper, 8 N.D. 484, 79 N.W. 1018; Perry v. Hackney, 11 N.D. 148, 90 N.W. 483; Weber v. O'Connell, 55 N.D. 867, 215 N.W. 539.
Fraud need not be shown by direct proof and may be, and generally is, proven by inference from facts and circumstances. Detroit Trust Co. v. Hartwick, 278 Mich. 139, 270 N.W. 249.
Any act on the part of an election officer, by which a legal voter has been deprived of his vote; or by which an illegal voter has been purposely and unjustly received; or by which a false statement has been imposed upon the public as a genuine canvass, is fraudulent. McCrary, Elections, 4th ed. § 579; People v. Cook, 8 N.Y. 67.
An intent to deceive is an element of actual fraud. The presence or absence of such an intent distinguishes actual fraud from constructive fraud. 26 C.J. 1061.
The reception of illegal votes at an election does not affect its validity unless it is shown that their reception affected the result; but where so many persons vote in violation of law that the result is placed in doubt if the illegal votes are excluded, the court should annul the election. 9 R.C.L. 1148.
When the result in any precinct has been shown to be so tainted with fraud that the truth cannot be deductible therefrom, then it should never be permitted to form a part of the canvass. McCrary, Elections, 4th ed. §§ 569 and 570.
When the result at a poll, as shown by the returns, is false and fraudulent and it is impossible to ascertain the actual result from other evidence in the case, the vote of such poll must be wholly rejected. Atty. Gen. v. McQuade, 94 Mich. 439, 53 N.W. 944; Paine, Elections, § 499.
A statute prescribing the duties of election officers may be held either mandatory or directory according to the time and manner in which it is questioned. Williams v. Sherwood, 51 N.D. 520, 200 N.W. 782; State v. Lockwood, 181 Iowa 1233, 165 N.W. 330; Elvick v. Groves, 17 N.D. 561, 118 N.W. 228; Martin v. McGarr, 27 Okla. 653, 117 P. 323.
When the conduct of election officers is such as to destroy the integrity of their returns and to avoid their prima facie character, due and adequate proof must be produced of each vote relied upon by the respondent. Mann's Case, 2 Phila. 320.
Mark H. Amundson and W. C. Crawford, for respondent.
In an election contest the burden of proof is on the contestant to show that he has a majority of the legal votes. McDonald v. Koths, 63 N.D. 716, 249 N.W. 706; Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321; Berg v. Veit, 136 Minn. 443, 162 N.W. 522; Kerlin v. Devils Lake, 25 N.D. 207, 141 N.W. 756; Cameron v. Babcock, 63 S.D. 554, 262 N.W. 80.
Where an election is contested on the grounds of illegal voting, the contestant has the burden, not only of proving that illegal votes were cast in sufficient numbers to change the result, but he must also show by whom and for whom they were cast. Tazewell v. Davis, 64 Or. 325, 130 P. 400; Jaycock v. Varnum, 226 P. 285; Sargent v. Santa Fe (N.M.) 174 P. 424; Stephens v. Nacey (Mont.) 141 P. 649; Lugar v. Burns (Ind.) 150 N.E. 774; Goar v. Brown (Okla.) 200 P. 156; Anderson v. Pifer, 213 Ill. 164, 146 N.E. 171.
Voters whose votes are void may be called as witnesses. Hanson v. Adrian (Minn.) 148 N.W. 276; White v. Slama, 89 Neb. 65, 130 N.W. 978; Gardner v. Board, 248 Mich. 134, 226 N.W. 895; Thompson v. Cihak, 254 Mich. 641, 236 N.W. 893.
Before contestant can take advantage of the proportion rule he must first show that it was impossible for him to show for whom the illegal votes were cast. Berg v. Veit, 136 Minn. 443, 162 N.W. 522.
The proportion rule has been recognized and utilized by the court in this state. Kerlin v. Devils Lake, 25 N.D. 207, 141 N.W. 756; Drinkwater v. Nelson, 48 N.D. 871, 187 N.W. 152. See also Ellis v. May, 99 Mich. 538, 58 N.W. 483; Choisser v. York, 211 Ill. 56, 71 N.E. 540; Neff v. George, 4 N.E.2d 388.
All statutes directing how an election shall be conducted are mandatory, but unintentional failure on the part of election officials to comply strictly with the letter of the law does not taint all the proceedings. Williams v. Sherwood, 51 N.D. 520, 200 N.W. 782.
In trying a contested election case the court acts in a judicial capacity and is governed by the general rule that evidence must be confined to the issues made by the pleadings. Drinkwater v. Nelson, 48 N.D. 871, 187 N.W. 152; Hamer v. Howell, 31 Utah 144, 86 P. 1073.
Even though an unregistered person's act in voting involves no moral turpitude, or intentional violation of the law on the part of the voter or election officials, he is not entitled to claim a privilege from testifying as to how he voted. Doerflinger v. Hilmantel, 23 Wis. 422; Powers v. Harten, 183 Iowa 764, 167 N.W. 693; Montoya v. Ortiz, 24 N.M. 616, 175 P. 335. See also State v. Kent (State v. Pancoast) 5 N.D. 516, 62 N.W. 1052 and Hellstrom v. First Guaranty Bank, 54 N.D. 166, 209 N.W. 212.
This is an election contest. The case is here for trial de novo. At the general election held on November 3, 1936, Theo. B. Torkelson, the contestant and appellant, was a candidate for reelection to the office of state's attorney of Bowman county and M. S. Byrne, contestee and respondent, was the only opponent. Their names appeared on the no party ballots. The canvass of the official precinct returns, by the county canvassing board, showed that Byrne received 1060 votes and Torkelson 1053, or a majority of 7. The county auditor issued a certificate of election to Byrne. Torkelson instituted this contest proceeding and the district court of Bowman county found that Byrne had been elected by a majority of only one vote, namely, that Byrne had received 1043 votes and Torkelson 1042.
Torkelson's notice of contest challenges only one precinct, namely, precinct 34, comprising a part of the village of Bowman. The vote of precinct 34, as returned by the precinct board, showed that 245 votes had been cast for state's attorney, of which 150 votes were cast for Byrne and 95 for Torkelson.
1. In this precinct some of the ballots were cast without having endorsed thereon the official stamp and initials as required by § 985, Compiled Laws 1913.
Section 1006, Compiled Laws 1913, expressly provides that such ballots are void and should not be counted. Ballots which have not been endorsed as required by § 985 are void...
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