Williams v. Sherwood

• Decision Date: 13 September 1924
• Parties: WILLIAMS et al. v. SHERWOOD et al.
• Court: North Dakota Supreme Court

51 N.D. 520

200 N.W. 782

WILLIAMS et al.

v.SHERWOOD et al.

Supreme Court of North Dakota.

Sept. 13, 1924.

Syllabus by the Court.

A deviation from the hours fixed in a statute for opening or closing the polls in a village election will not ordinarily render an election invalid, in the absence of a showing of fraud, prejudice to qualified electors, or of a statute expressly declaring that the election shall be void as a result of such departure.

Where, in a village election, the polls were kept open from 1 p. m. to 7 p. m., instead of from 9 a. m. to 4 p. m., as provided by statute, and there was no proof of fraud, and the evidence shows no prejudice to qualified electors as a result, and the statute does not declare an election void as a result of a departure from the statutory hours, it is held, for reasons stated in the opinion, that the election is valid.

Bronson, J., dissenting.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Roy Williams and others against Percy V. Sherwood, R. O. Kraft, and Gordon W. Randlett, individually and as members of the Board of Trustees of the Village of North Fargo, and others. Judgment for defendants, and plaintiffs appeal. Affirmed as modified.J. E. Hendrickson, of Fargo, for appellants.

Lawrence, Murphy & Nilles, of Fargo, for respondents.

W. H. Shure, of Fargo, for respondent City of Fargo.

Barnett & Richardson, of Fargo, for interveners.

JOHNSON, J.

This is an action to enjoin defendants from perfecting proceedings for the annexation of the village of North Fargo to the city of Fargo, pursuant to an election for the dissolution of the village held on April 30, 1923, at which the vote stood 99 for dissolution and 93 against. Plaintiffs contend that the election is void for the reason that the polls were kept open from 1 p. m. to 7 p. m. instead of from 9 a. m. to 4 p. m., which latter hours, it is said, are prescribed by the statute. This is the main issue in this lawsuit.

The case was first heard on April 2, 1924; in that hearing the trial court made findings of facts, among them being a finding that the polls were open on election day from 9 a. m. to 7 p. m. After the case had been appealed to this court it was sent back, upon the suggestion of amici curiæ, and certain residents of the village of North Fargo were permitted to file a petition and complaint in intervention more fully contesting the validity of the election. More testimony was accordingly taken on May 16, mostly upon the questions as to the hours when the polls were open and as to whether any voters were in fact prejudiced or prevented from voting because of the alleged departure from the statutory hours. The trial court made additional findings. The trial court finds “that the additional testimony offered is not such as to warrant any modification of the original findings of fact, conclusions of law, order for judgment, or judgment entered therein.”

Upon the second hearing all the election officers testified unequivocally that the polls were in fact not opened until 1 p. m. on April 30, 1923. The testimony to the contrary at the first hearing was rather indefinite. We are constrained to the conclusion that, if the trial court intends to adhere to its first finding on this point, its conclusion is opposed to the great preponderance of the evidence. The court says later, in its findings upon the second hearing, “The election officials did not assemble nor were any votes cast at such election until on or about 1 o'clock p. m. of election day, * * *” a finding that may very properly be construed as contrary to that made on the first hearing, if not, indeed, conflicting with the statement from the new findings first above quoted.

The court also found that only two persons presented themselves at the polling place in the forenoon; that those two actually voted in the afternoon; that no voters were prejudiced or prevented from voting at the election because the polls were not open in the forenoon; and, in general, that the election was fairly conducted, without fraud, the result correctly announced, and the voters of the village of North Fargo were not in any manner deprived of or prejudiced in the exercise of the franchise by reason of the fact that the polls were open from 1 p. m. to 7 p. m. instead of from 9 a. m. to 4 p. m. The court also found that the result of the election would not have been different had the polls been open from 9 a. m. to 4 p. m. instead of from 1 p. m. to 7 p. m.

The foregoing findings are amply supported by the testimony. One Clark, at whose home the polling place was, testified that only two voters came in the forenoon, and that both of them voted in the afternoon. His daughter testified to the same effect. Both witnesses were opposed to annexation, and Clark was a trustee of the village at the time of the election, being president of the village board.

The testimony tends to show that some days after the election of April 30, 1923, the president of the village announced that the election was invalid because the polls were not kept open during the hours prescribed by law. The election notices stated the hours for voting as from 1 p. m. to 7 p. m. Thereupon those who favored dissolution and annexation to the city of Fargo circulated new petitions, asking that another election be called, but the president of the village board and another trustee refused to, or at least did not, call an election. The majority of the board of trustees of the village declined to take any action on the petitions, according to the testimony of the third member who favored the calling of another election in order to correct any irregularities in that of April 30. No return of the results of the election was filed by the village board. The alleged irregularity with respect to the opening and closing of the polls was not a sufficient legal excuse for a refusal to declare the result. 26 Cyc. 275; People v. Michaels, 160 Ill. App. 424, 427. It was the duty of the village president and the village clerk to file a statement of the result, as provided in section 3903, C. L. 1913.

The battle of the annexationists and the antiannexationists apparently continued with unabated vigor until March 18, 1924, when a new village board was elected by a substantial majority, consisting entirely of friends of annexation to Fargo. After the election, the city of Fargo proceeded to annex the territory comprised within the former village of North Fargo.

Plaintiff's Exhibit 1, containing 29 names, purports to be a list of persons who resided in the village on April 30, 1923, but who did not vote at that election. Nobody testified to all the facts necessary to show that these persons were qualified electors; nobody testified that they did not vote because the polls were not open in the forenoon; nobody testified as to which side of the controversy they favored. The defendants were not permitted to offer any evidence upon the second hearing, at which Exhibit 1 was introduced, the trial court having construed the order of this court as limiting the right to introduce new testimony to the interveners. Exhibits 2 and 3 show that on March 18, 1924, there were 216 votes cast in the village, being 24 more than were cast at the dissolution election. It is somewhat significant that at the March elecion the antiannexationists were defeated by majorities ranging from 24 to 32 votes; the issue in that compaign, according to the testimony, was immediate annexation to Fargo and not the personalities of the candidates; of the 216 ballots, 211 were straight ballots, for all those who favored annexation, or for all those opposed to it. With a full vote out and the issue the same, the antiannexationists were more decisively defeated in 1924 than in 1923. Indeed, Exhibit 3 shows that the candidates of the antiannexationists for village trustees in the March election received 92, 93, and 94 votes. Against dissolution on April 30, 1923, 93 votes were cast. Witnesses for interveners testify that the vote at the dissolution election was the largest cast in the village up to that time.

Only three persons explained, on the second hearing, why they did not vote; one did not know that there was an election; two could not leave the children, and of those two one was opposed and the other favored annexation.

On the whole record the testimony abundantly supports the findings of the trial court that there was no prejudice, and that the result of the election would not have been different had the polls been open in the forenoon. The polls were open only one hour less than the statute provides. Nobody tried to vote after 7 p. m. In Links v. Anderson, 86 Or. 508, 168 P. 605, 1182, the polls were closed three hours ahead of the statutory hour for closing, but the court refused to hold the election invalid on that account, in the absence of fraud or prejudice. If any substantial number of those listed on Exhibit 1 had been opposed to annexation, and had been prevented from voting because of the departure from the regular hours, it is fair to suppose that they would have been called to testify by the interveners. The names of some of them, including the address, are recorded in Exhibits 2 and 3 (the poll books) as voting on March 18, 1924, and these exhibits were introduced by the interveners.

While the principal contention is that the election of April 30, 1923, was invalid, it is also urged that the plaintiffs are estopped from asserting the validity of the election inasmuch as they acquiesced in the announcement of the president of the board as to the invalidity of the election and thereafter participated in an election, March 18, 1924, of village officers. We do not believe it necessary to discuss this question at length. It seems that the entire village board was opposed to annexation at the time of the dissolution election, except one Randlett who thereafter resigned, because, as he says, the majority would take no action...