Ward v. Fletcher

• Decision Date: 18 August 1915
• Docket Number: No. 3848.,3848.
• Citation: 36 S.D. 98,153 N.W. 962
• Parties: WARD et al. v. FLETCHER et al.
• Court: South Dakota Supreme Court

36 S.D. 98

153 N.W. 962

WARD et al.

v.FLETCHER et al.^†

No. 3848.

Supreme Court of South Dakota.

Aug. 18, 1915.

Appeal from Circuit Court, Brown County; Thos. L. Bouck, Judge.

Election contest by A. L. Ward and others against C. C. Fletcher and others, members of the Board of Commissioners of the City of Aberdeen, Brown County, S. D., Ed. M. Hall, Mayor, and H. C. Behrens, member of the Board of Commissioners. Judgment for contestees, and contestants appeal. Affirmed.E. B. Harkin and Frank McNulty, both of Aberdeen, for appellants.

Crofoot & Ryan and Campbell & Walton, all of Aberdeen, for respondents.

WHITING, J.

Contestants and appellants, proceeding under article 13, c. 19, Pol. Code, contested, in the circuit court, the result of a certain city election as declared by the board of canvassers. The judgment of such court being adverse to them, they have appealed therefrom to this court. The election in question was held to determine whether intoxicating liquors should be sold at retail in such city.

[1] Section 1997, Pol. Code, being one section of article 13, c. 19, supra, provides for a speedy hearing upon appeal and that the cause “shall be heard and determined in a summary manner.” The only questions presented relate to alleged errors of the trial court in its rulings as to the effect of the markings found upon certain ballots cast at such election. Appellants, by clear and sufficient assignments of error, have presented those rulings of the trial court of which they complain, and respondents have set forth numerous rulings of the trial court to which they took exceptions and of which they now complain. We believe that on an appeal of this nature we should, so far as necessary to the determination of the correctness of the judgment appealed from, pass upon all alleged errors to which our attention is called by either side, because if, from the whole record, it is clear that the judgment of the trial court is correct, all errors, if any, in the rulings of the trial court, were without prejudice to appellants. Voorhees v. Arnold, 108 Iowa, 77, 78 N. W. 795;Prenevost v. Delorme (Minn.) 152 N. W. 758.

[2] Before taking up the various ballots referred to by the parties, it is well to consider the principles that should govern canvassing officers and courts in determining whether a ballot should be counted and how it should be counted. Section 1916, Pol. Code, provides:

“The judges in counting the votes shall endeavor to record the intention of the voter.”

Section 1923, Pol. Code, provides:

“No elector shall place any mark upon his ballot by which it may afterwards be identified as the one voted by him.”

An examination of the record herein convinces us that the trial court was of the opinion: first, that a ballot should be counted as a vote if from such ballot the intention of the voter can be determined, regardless of how such intention was indicated; second, that no mark upon a ballot should be held to be an identification mark unless it clearly appears that it was intended as such by the elector who cast the ballot, and this regardless of the fact that there might be markings upon the ballot which were intentionally placed thereon by the elector and were so placed without authority of law. These positions find no support whatever in any decision of this court and are contrary to the settled law of this state. As early as the decision in Vallier v. Brakke, 7 S. D. 343, 64 N. W. 180, decided 20 years ago, this court said:

“There was much discussion on the argument and in the briefs of counsel as to the duty of judges of election and courts to carry out the intention of the voter. This is true to a certain extent; but, as the Legislature has required the elector to express his intention by certain well-defined markings upon his ballot, his intention must be determined by these markings, and not by the uncertain and undefined ideas of the judges of election, or by the courts, as to his intention. The Legislature has clearly and precisely defined the manner in which the elector may designate the candidates for whom he desires to vote, and has prescribed definite and fixed rules to govern the voter in designating such candidates. As before stated, the system is simple, and there is no difficulty in the elector's complying with the rules. In our view, it is neither the duty of judges of election nor the courts to fritter away the benefits of the system by strained efforts to get at the intention of the voter in any manner other than by following the rules prescribed by the Legislature. If the elector does not take interest enough in his vote to follow these simple and easily understood rules, he can complain of no one if his vote is not counted. A system no simple and plain, and which can be comprehended by any elector of ordinary intelligence in a few minutes, must be followed. There can be no excuse for not following it.”

In Treat v. Morris, 25 S. D. 615, 127 N. W. 554, which was also a case where a question of sale of intoxicating liquor was voted on and voted at a time and under circumstances making lawful a marking either upon the word “Yes” or “No” or in the square before one of such words, this court said:

“It has heretofore been held by this court, on several occasions, as well as in many other jurisdictions, that the voter's intention, as comprehended within the meaning of such sections of the statute, is an intention to mark his ballot according to law, and is not an intention to vote for any particular person, or in any particular way on any question submitted to vote. The law provides how the elector shall express his intention by the marking of his ballot. Where an elector deliberately marks his ballot some other way than required by law, although his intention might be gathered therefrom as to how he intended to vote, still his vote should not be counted because he has not attempted to mark his ballot in the manner the statute says he must. Where an elector has attempted to make the word ‘Yes' or ‘No,’ or attempted to place a cross in the circle, and by reason of a defect in the stamp or pencil, not properly making a clear cross, or some like occurrence, then there is an intention to mark the ballot in accordance with the method prescribed by statute, and under such circumstances it should be counted, if it can be gathered from the ballot how he intended to vote; but where he actually makes the cross on some other part of the ballot, other than where the law says he should make it, the vote should not be counted.”

In Church v. Walker, 10 S. D. 90, 72 N. W. 101, decided in 1897, this court said:

“If the cross outside the circle was made by mistake, the elector should have procured another ballot. On failure to do so the judges of election should have presumed it was made as an identifying mark, and should have declined to count the ballot for any candidate.”

Courts and election judges should strive to determine and carry out the intent of the elector when satisfied that the elector has endeavored to express such intent in the manner prescribed by law or by directions found upon the ballot, and, for that purpose, should presume every marking found where the X should be to be a marking intended as a X unless the contrary is clear. Upon the other hand, no mark, whether it be a X or not, which has been made upon a ballot at an unauthorized place, can properly be referred to to assist in determining the intent of the voter; and,...