Torkelson v. Byrne, 6471.
| Decision Date | 13 November 1937 |
| Docket Number | No. 6471.,6471. |
| Parties | TORKELSON v. BYRNE. |
| Court | North Dakota Supreme Court |
TORKELSON
v.
BYRNE.
No. 6471.
Supreme Court of North Dakota.
Nov. 13, 1937.
[276 N.W. 135]
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, as amended by 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.
CHRISTIANSON, C. J., dissenting in part.
Paul W. Boehm, of Hettinger, and Theo. B. Torkelson, of Bowman, pro se, for appellant.
Mark H. Amundson, of Bowman, and W. C. Crawford, of Dickinson, for respondent.
GRONNA, District Judge.
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 re-election 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 1,060 votes and Torkelson 1,053, 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 1,043 votes and Torkelson 1,042.
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
[276 N.W. 136]
votes were cast for Byrne and 95 for Torkelson.
[1] 1. In this precinct some of the ballots were cast without having endorsed thereon the official stamp and initials as required by section 985, Comp. Laws 1913.
Section 1006, Comp. Laws 1913, expressly provides that such ballots are void and should not be counted. Ballots which have not been endorsed as required by section 985 are void whether they be absent voters ballots or regular ballots. Weber v. O'Connell, 55 N.D. 867, 215 N.W. 539.
Section 985 requires that: “Before delivering any ballot to an elector the inspector or judge shall print on the back and near the top of the ballot with a stamp provided for that purpose, the designation ‘official ballot’ and the other words provided for in section 965 and also write his initials thereon.”
Section 965, Comp. Laws 1913, provides that such official ballot stamp shall contain, in addition to the words “official ballot,” the name and number of the precinct, the name of the county, and the date of election.
The official stamp provided for precinct 34 was in proper form, and most of the ballots were indorsed with such stamp and initialed by the inspector, Robert Skare.
(Hereafter in this opinion when the phrases “indorsed ballots”, or “ballots not indorsed,” or the equivalent thereof, are used, reference is made to ballots which have or have not been, as the case may be, indorsed with the official stamp and initials as required by section 985 prior to the time such ballots were deposited in the ballot box.)
[2] 2. After the polls were closed, Inspector Skare wrongfully indorsed the official stamp and his initials upon all ballots not indorsed. Of course, this belated indorsement did not make such void ballots valid. Ballots which are not indorsed by the official stamp and initials until after they have been deposited in the ballot box are void.
No formal record was kept of the number of ballots not indorsed, although Inspector Skare testified he had counted 20 absent voters no party ballots which were not indorsed and that there were not more than 4 regular no party ballots not indorsed, although he had not counted such regular ballots. One of the judges of the precinct, No. 34, Joseph A. Fisher, testified that although he had not counted the ballots not indorsed in his opinion there were 16 or 18 of the absent voters no party ballots not indorsed and 7 or 8 of the regular no party ballots not indorsed.
At this point it may be well to note that in precinct 34 there was no excess of ballots over the number of qualified electors who had cast ballots. The testimony shows that after the votes were counted the election board compared the count as disclosed by the clerk's books with the total number of ballots cast and found that the number of ballots cast was the same as the number of qualified electors who had cast ballots.
It will also be noted that this contest proceeding has arisen because of the belated indorsement of ballots not indorsed. If such void ballots had not been indorsed after the polls were closed, of course, they could have been readily identified by the absence of an official indorsement on them. By reason of such tampering the district court was presented with the problem of: (1) Ascertaining the number of ballots which were not indorsed, and (2) identifying, if possible, such ballots and using the ballots in ascertaining whether they were cast for Torkelson or Byrne; (3) as to those ballots which could not be identified, the court was presented with the problem of proof, by means of secondary evidence, as to whom such ballots were cast for.
The district court correctly found that there were 25 absent voters no party ballots cast in precinct 34, of which 17 were for Byrne and 8 for Torkelson. These absent voters ballots, which were received in evidence, were yellow in color and had the words “absent voter” printed on them, and thus they were easily identified and easily distinguishable from the regular ballots which were white in color.
The district court found that 20 of these absent voters no party ballots were not indorsed, and correctly concluded that they were void because they were not indorsed. The remaining 5 were also found void for the following reasons:
[3][4] 3. The testimony of the precinct officials discloses that the last five names in the poll book are the names of absent voters who marked their no party ballots outside of the State of North Dakota. Just before the closing of the polls the election board discussed the matter of voting the ballots of these 5 absent voters. Following the discussion the inspector stamped and initialed them before they were dropped into the ballot box. The district court
[276 N.W. 137]
found, and correctly so, that these 5 absent voters no party ballots were void because the oaths of electors, as evidenced on the envelopes containing such ballots, had not been administered by an authorized officer within the meaning of section 998, Comp.Laws 1913, such oaths having been administered outside of this State by a United States postmaster who used a postmaster's dating stamp as a seal.
Section 998, Comp.Laws 1913, provides that: “Such absent voter shall make and subscribe the said affidavit before an officer authorized by law to administer oaths and who has an official seal.” A United States postmaster is not “an officer authorized by law to administer oaths” within the meaning of section 998 for two reasons: (1) Because he does not have an official seal. A postmaster's dating stamp is not a legal seal within the meaning of section 998. (2) Because he is not an officer authorized to administer oaths under the provisions of section...
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