Tuntland v. Noble

• Decision Date: 25 October 1912
• Citation: 138 N.W. 291,30 S.D. 145
• Parties: TUNTLAND v. NOBLE, Mayor, et al.
• Court: South Dakota Supreme Court

138 N.W. 291

30 S.D. 145

TUNTLAND v. NOBLE, Mayor, et al.

Supreme Court of South Dakota

October 25, 1912

Appeal from Circuit Court, Turner County; Robert B. Tripp, Judge.

Action by O. Tuntland against N. Noble, as mayor of the city of Centerville, and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

Haney J., dissenting.

Bogue & Bogue, of Centerville, for appellant.

F. L Soper, of Centerville, and Gardner & Churchill, of Huron, for respondents.

WHITING J.

At the annual election in and for the city of Centerville, the question of permitting the sale of intoxicating liquors at retail was voted upon. The canvassing board declared the majority of the ballots to have been cast in favor of permitting such sale. Appellant brought this action in the circuit court to contest the result of said election as so declared, and, for grounds of contest, while admitting that the majority of the ballots as cast were in favor of the sale of liquor, alleged that all the ballots cast at such election were invalid, and should not have been counted, for the reason that the said question was submitted upon the same ballot upon which was submitted the question of the adoption of a city ordinance. A copy of the ballot used was attached to the contest petition and shows that it was some eight by fourteen inches in size, printed upon one side, and with most of the ballot covered by the printing of the proposed ordinance which occupied three ordinary columns on said ballot. At the foot of the third column was placed the usual question as to whether the ordinance should be passed together with the words "Yes" and "No," and squares opposite each in which the voter might place his cross to designate his vote. Below the other two columns appeared the question "Shall intoxicating liquors be sold at retail?" with the words "Yes" and "No" and like squares within which to designate one's vote upon the question of the sale of liquor. The complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and a judgment entered dismissing the contest. It is from the judgment and order sustaining the demurrer that this appeal is taken.

There is a special provision in the intoxicating liquor laws of this state directing that the question of the sale of liquor "shall be submitted upon a separate ballot." There is, however, no express provision of statute declaring that failure to follow such direction shall render the votes cast void or the election invalid. Appellant, however, contends that said provision is, from its very nature, mandatory, and that a failure to comply therewith renders void that part thereof relating to the sale of intoxicating liquors. Respondent in the case at bar contends: (1) That appellant has presented no sufficient assignment of error to raise the question urged. (2) That, inasmuch as the statute of this state provides that the city auditor shall prepare the ballots to be used at the election, and have the same at his office subject to inspection for the period of three days prior to the election, and an opportunity was thus given to those interested to ascertain the proposed form of ballot and to take steps, in accordance with other provisions of the statute, to have corrected any alleged errors in the form of ballots, appellant was estopped after election from questioning the ballot used. (3) That there was a substantial compliance with the statute inasmuch as all the statute contemplated was that the ballot upon which the question was submitted should be separate from that upon which appeared the names of the candidates for office. (4) That the ballots were valid because the statutory provision was merely directory, and a failure of the city auditor to follow such direction should not work the disfranchisement of the innocent voter, especially in view of the fact that it is not claimed that the result of the election was actually affected thereby.

There is no merit in the claim that the assignment of error is insufficient. A demurrer was interposed. This demurrer was upon one ground only. The demurrer was sustained. Appellant assigns as error the sustaining of the demurrer. We cannot conceive where any uncertainty could arise as to the question sought to be raised.

We might suggest that a much more liberal rule should obtain relating to the sufficiency of an assignment of error than to the sufficiency of a specification of error. While the latter should be so explicit as to reveal the precise question presented to the trial court for its determination, all that should be required in an assignment of error is that such assignment, taken in connection with the brief and argument accompanying same, present clearly the question urged upon appeal.

There is in this state no statute providing that a failure to object to the form of a ballot prior to election shall estop one from questioning such ballot after election. Without in any manner intimating our views upon what might be the effect of such neglect in the case of the ordinary ballot used upon the election of public officers, we are clear that any failure to object to the form of a ballot prepared for use in submitting the question of the sale of intoxicating liquors cannot estop an interested party from contesting the election upon the ground that the ballots used thereat were invalid. It must be borne in mind that in this state we have prohibition with local option license, thus throwing upon those desiring the sale of liquors the burden of initiating the proceedings leading up to election (State ex rel Crothers et al. v. Barber, 19 S.D. 1, 101 N.W. 1078), also, that it takes an affirmative vote of a majority of all who vote at the election, and not a mere majority of those voting upon this question, to carry the election in favor of licensing the sale of intoxicating liquors (State ex rel. Clark v. Stakke, 22 S.D. 228, 117 N.W. 129; Id., 22 S.D. 451, 118 N.W. 703). The voter who opposes the granting of license need not vote upon the license question at all in order to assist in the defeat of license. If he votes for some candidate for office, thus becoming enrolled as a voter at such election, he is counted as effectually against license, when he neglects to vote on that question, as when he casts a ballot against it. It follows that there is not, at any stage of the...