Weber v. O'Connell

• Decision Date: 22 October 1927
• Docket Number: No. 5333.,5333.
• Citation: 215 N.W. 539,55 N.D. 867
• Parties: WEBER v. O'CONNELL.
• Court: North Dakota Supreme Court

55 N.D. 867

215 N.W. 539

WEBER

v.O'CONNELL.

No. 5333.

Supreme Court of North Dakota.

Aug. 18, 1927.

Rehearing Denied Oct. 22, 1927.

Syllabus by the Court.

Section 1006, C. L. 1913, providing, “In the canvass of the votes, any ballot which is not indorsed as provided in this chapter by the official stamp and initials shall be void and shall not be counted,” applies to absent voter ballots deposited in a ballot box pursuant to section 1001, C. L. 1913, and where such absent voter ballots are not so indorsed they are void and cannot be counted.

Additional Syllabus by Editorial Staff.

Under Comp. Laws 1913, § 959, providing that voter may designate choice by cross or other mark opposite name of candidate on ballot, where choice in two cases preceding one in question was marked by cross in square at right of candidate's name, but in space in question voter had made mark similar to enlarged dot and which was blurred as if he had attempted to erase it, excluding such vote was proper, in view of section 1006.

Where rival candidates for office of state's attorney received same number of votes, neither was elected and choice should be decided by drawing lots, pursuant to Comp. Laws 1913, § 1010.

Appeal from District Court, McHenry County; W. J. Kneeshaw, Judge.

Election contest by Albert Weber against D. J. O'Connell for the office of state's attorney in McHenry county. From a judgment for defendant, plaintiff appeals. Reversed, with direction.McGee & Goss, of Minot, for appellant.

D. J. O'Connell, of Towner, for respondent.

NUESSLE, J.

This is an election contest. Plaintiff and defendant were opposing candidates for the office of state's attorney in McHenry county at the general election held in 1926. On the face of the returns as made by the county canvassing board, plaintiff received 2,142 votes and the defendant 2,152 votes, and the defendant was declared elected. Thereupon the plaintiff instituted this action.

When the case came to trial in the district court it was stipulated that all questions or grounds of contest should be waived except such as might be found on recount of the ballots cast. Thereupon the trial court proceeded to count such ballots and found that 4,300 ballots were cast for the office of state's attorney; that of these ballots 4,248 were legal and proper and concerning which there was no question, and 52 were disputed or contested ballots which were challenged by the respective parties. Of the unchallenged ballots, plaintiff received 2,123 and the defendant 2,125. Of the disputed or contested ballots, 31 were regular ballots and 21 absent voters' ballots. The trial court found that 28 of the 52 contested ballots were not valid, and these were not counted. The court held that the remaining 24 contested ballots were valid and counted the same, finding that 17 thereof were cast for the defendant and 7 for the plaintiff, thus finding that the total vote received by the plaintiff was 2,130 and by the defendant 2,142. Judgment was entered accordingly. The appeal is from such judgment.

In this court both parties concede that there was no error on the part of the trial court in its action with respect to 26 of the ballots held invalid and rejected, and our inquiry is thus limited to the remaining 26 ballots. Of these 21 are absent voters' ballots. The remaining 5, designated in the recordas Exhibits 5, 22, 30, 49, and 50, are regular ballots.

The 21 absent voters' ballots here in question are not stamped and initialed as required by sections 985 and 1001, C. L. 1913. The question as to these ballots is as to whether they are thereby rendered void and shall not be counted. Section 985 reads as follows:

“The inspector or one of the judges of election shall deliver ballots to the qualified electors. 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. Each qualified elector shall be entitled to receive from the judges one ballot.”

Article 16 of chapter 11 of the Political Code (C. L. 1913, sections 992 to 1004, inclusive) provides that electors absent from the counties in which they are electors on election day may vote, and prescribes the manner in which such an elector may procure and vote his ballot. After prescribing the manner in which he must make application for the ballot, receive it, vote the same, return it to the county auditor, and the manner in which the county auditor must, in turn, deliver it over to the officers of the election precinct in which the vote should properly be cast, the statute (section 1001) provides:

“At any time between the opening and closing of the polls on such election day, the inspector or judges of election of such precinct shall first open the outer envelope only, and compare the signature of such voter to such application with the signature to such affidavit. In case the judges find the affidavit is sufficient and that the signatures correspond, and that the applicant is then a duly qualified elector of such precinct and has not voted at such election, they shall open the absent voter envelope, in such manner as not to destroy the affidavit thereon, and take out the ballot or ballots therein contained, and without unfolding the same, or permitting the same to be opened or examined, and having indorsed the same in like manner that other ballots are indorsed, deposit the same in the proper ballot box or boxes, showing by the records of such election such elector to have voted. * * *”

Section 1006, C. L. 1913, provides:

“In the canvass of the votes, any ballot which is not indorsed as provided in this chapter by the official stamp and initials shall be void and shall not be counted, and any ballot or parts of a ballot from which it is impossible to determine the elector's choice shall be void and shall not be counted; provided, that when a ballot is sufficiently plain to gather therefrom a part of the voter's intention it shall be the duty of the judges of election to count such part.”

Article 16 above referred to, conferring the right to vote on absent voters, was enacted as chapter 155, Sess. Laws 1913, and was an innovation in the election laws. Sections 985 and 1006 were first enacted as parts of chapter 66, Sess. Laws 1891.

This court has consistently held that the requirements of section 985 as to indorsements by the official stamp and initials, construed in the light of section 1006, are mandatory and that ballots not so indorsed by both stamp and initials are void and shall not be counted. See Miller v. Schallern, 8 N. D. 395, 79 N. W. 865;Lorin v. Seitz, 8 N. D. 404, 79 N. W. 869;Howser v. Pepper, 8 N. D. 484, 79 N. W. 1018;Perry v. Hackney, 11 N. D. 148, 90 N. W. 483;Fuerst v. Semmler, 28 N. D. 411, 149 N. W. 115;Grubb v. Dewing, 48 N. D. 774, 187 N. W. 157.

The trial court held that the provision of section 1001, requiring that election officers shall indorse absent voters' ballots “in like manner that other ballots are indorsed” before depositing them in the ballot boxes, is directory only, and that the provisions of section 1006 invalidating ballots unless so indorsed do not apply to such absent voters' ballots. Of the 21 absent voters' ballots here in question, 16 were cast for the defendant, O'Connell, and 5 for the plaintiff, Weber. Thus the ruling of the trial court as above set out is vital to this contest, for, if correct, the defendant, O'Connell, has a clear majority over the plaintiff. If the trial court's ruling is incorrect and the ballots are invalid, then it will be necessary to pass upon the propriety of the action of the trial court respecting the other ballots here questioned.

The defendant in this behalf contends, and this was the view taken by the trial court, that the absent voters' statute was an innovation in the law and was enacted long subsequent to the enactment of sections 985 and 1006; that the Legislature, when it enacted the latter sections, had no intention that such section should apply to absent voters' ballots, and that when the Legislature in 1913 enacted the absent voters' statute, it clearly did not contemplate that the provision for the indorsement of absent voters' ballots should be mandatory; that the reasons for the enactment of section 1006 do not exist in the case of absent voters' ballots, and the reasons not existing, this statute was not intended to apply. On the other hand, the plaintiff contends that applying the ordinary and usual rules of construction, all of the statutes governing the conduct of elections must be construed together, and that, when the Legislature enacted the absent voters' statute in 1913, it did so having in view section 1006 and other statutes touching elections and the construction and effect given to the same by this court, and contemplated that the same should apply.

Of course, the object of all statutory construction is to ascertain and give effect to the legislative intent. See Murray Bros. v. Buttles, 32 N. D. 565, 156 N. W. 207;State ex rel. Langer v. Kositzky, 38 N. D. 616, 166 N. W. 534, L. R. A. 1918D, 237;State ex rel. Linde v. Taylor, 33 N. D. 76, 156 N. W. 561, L. R. A. 1918B, 156, Ann. Cas. 1918A, 583. “‘Where statutes are parts of a general system relating to the same class of subjects, and rest upon the same reasons, they should be so construed, if possible, as to be uniform in their application, and in the results which they accomplish.”’ Murray Bros. v. Buttles, supra.

So it seems clear to us, applying these rules in the instant case, that we must hold that section 1006 applies to absent voters' ballots as well as to other ballots. It is urged that the chief reason for indorsement of ballots as required by section 985, that is, to make sure that the elector shall vote the official ballot and...