Tuntland v. Noble

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 s-ame 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 — 154 — S.old 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: (i) That appellant has presented no1 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 to1 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 directions 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. [1] 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. Ap — 155 — pellant assigns as error the sustaining of the demurrer. We cannot conceive where any uncertainty could arise as to the question sought to be raised. [2] 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. [3] There is in this state nO' statue 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 election proceedings, any affirmative duty, relating to the license question, devolving upon the elector who opposes the granting of license. He certainly can lose no right or advantage through any defect in the ballot used — 156 — upon the submission oí this question, and it is therefore not for him to investigate the form- of ballot that has been prepared for use, and -he can lose no right through his failure to investigate. [4] Respondents urge that the only reason why the statute requires this question to be submitted upon -a separate ballot is in order that it may be separated from the political questions arising in connection with the election of municipal officers; that the statute did not contemplate any more than -a ballot separate from the ballot used for election of officers; that there was therefore a substantial compliance with the statute, and at least a compliance with the spirit of the law. There would be some merit in' respondents' argument if they had not started from the wrong premise. The use of the separate ballot -was clearly not for the purpose of separating this question from politics. Common experience would teach any member of the Legislature -that he could not, in any degree whatsoever, by mere use of separate -ballots, accomplish the separation of this question from other matters to be voted- upon at the same election. There is one thing, however, ■that can be accomplished by the use of a -separate ballot, and that is the calling of the voter’s attention directly and specifically to the question submitted thereon. This was clearly what was sought in the -enactment of the statute requiring the separate ballot. If follows that the submission of this- question in connection with a long ordinance, especially in the form in which the ballot was printed, was, if possible, even more in conflict with the spirit of the law than would have been its submission upon the ballot used-for election of officers; and it -certainly-was in utter disregard of the letter of our law. [5] The. final contention of respondents raises a question of th-e highest importance, as the principles of law involved are far reaching in their application to elections. It is only their importance that warrants o-ur doing more then referring to the opinion of this court in Hughes v. Hill et al., 138 N. W. 290, decided at this -term. The failure to provide the proper ballot was the fault of a public officer. There was no allegation that any voter was misled. 'No question of defective marking of ballots is before us. There is no dispute as to how the majority voted. The sole question, then, is whether or not the provision requiring a separate -ballot is mandatory or merely -directory. The follow — 157 — ing statement of the law as given in the case of Horsefall et al. v. School District, etc., 143 Mo. App. 545, 128 S. W. 34, is that usually found in opinions and text-books: “We think it may now be said to be the established rule in this state, as it is generally in other jurisdictions, that, when a statute expressly declares any particular act to be essential to the validity of an election, then the act must be performed in .the manner provided, or the election will be void; also, if the statute provides specifically that a ballot not in a prescribed form shall not be counted, then -the provision is mandatory, .and the courts will' enforce it, but if the statute merely provides that certain things shall be done, and 'does not prescribe what results shall follow if these things are not done, then 'the provision is directory merely, and the final test as to the legality of either the election or the ballot is whether or not the voters have been given an opportunity to express, and have fairly expressed, their will.” See, also, McGrane v. County, etc., 18 Idaho, 714, 112 Pac. 316, 32 L. R. A. (N. S.) 730, Ann. Cas. 1912A, 165; Short v. Gouger, (Tex. Civ. App.) 130 S. W. 267. What seems to us to be the true rule is laid down in the following from the opinion of the court in the case of Perry v. Hackney, 11 N. D. 154, 90 N. W. 485: "The statute under consideration is, then, not in terms mandatory; -but it is well settled that the employment of express words is not always necessary to give it that character. 'Where the aim and purpose of the lawmaking power would be plainly defeated if the command to do the thing' in a particular manner did not -imply an inhibition to do- it in any other, no doubt can be entertained as to the mandatory character of the statute.’ 23 Am. & Eng. Enc. Law, pp. 453, 454, and cases cited. The proper test for distinguishing mandatory from directory provisions in election laws is well stated by the Supreme Court of Indiana in Parvin v. Wimberg, 130 Ind. 568, 30 N. E. 790, 15 L. R. A. 775, 30 Am, St. Rep. 234, as follows: ‘If a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the courts, whose duty it is to enforce the law ás they find it, must so hold, whether the particular act in question goes to the merits or affects the result of the election or not; for such a statute is mandatory, and the court cannot enter into the question of its policy. On the other hand, if-a statute simply provides that cer — 158 — tain things shall be done within a particular time or in'a'particular manner, and does not declare 'that their perforrhance shall be essential to the validity of an election, they ‘Will-"be regarded as mandatory if they affect the merits of the elettion, amid as directory only if they do not affect its merits.’ ” We also approve the following from the case of Jones v. State ex rel. Wilson, 153 Ind. 440, 55 N. E. 229: “All provisions of the election law aré mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the results, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute -that the particular act is essential to the validity of'an election, or that its omission shall render it void.” Keeping in view the fact that the clear purpose of the statute was to call the attention of each and every voter to the specific question submitted to him, and to put it before him so that there could be no chance for him to confuse it with any other matter submitted at the election — in fact, that the purpose was to1 make the voting upon this question an election separate and distinct from any other election held at the same time and place' — it becomes apparent that this provision of statute does “affect the merits of the election,” that it does “affect an essential element of the election.” This being true, a court will not investigate to ascertain whether or not the disregard of this “essential element” going as it does to “the merits of the election” did, in fact, in a given case affect the 'apparent result of .the election. A case very similar in principle to this was that Gomez v. Timon et al. (Tex. Civ. App.) 128 S. W. 656. We quote from the syllabus. “Rev. St. art. 3388, as amended by Acts 31st Leg. c. 29, provides that votes at a local option election shall be by official ballot having-printed or written at the top thereof the words ‘official ballot/ -which ballot shall have written or printed thereon the words 'fiitr prohibition’ and ‘against prohibition.’ It further provides that the voter shall be furnished by the presiding officer with one ballot, and shall not 'be permitted to depart with such ballot, and that those favoring prohibition shall erase the words ‘against prohibition’ and those opposing- it shall erase ‘for prohibition,” and none — 159 — but official ballots shall be received and counted. Held, that the provisions of the' statute as to the character of the ballots used were mandatory so that a local option election was void where the ballots did not have the words ‘official ballot’ thereon, and in which two ballots were given to each voter marked respectively ‘for prohibition/ and ‘against prohibition,’ the voters voting ’ one of such ballots and retaining the other in their possession.” It is very clear that the provision of the law declaring that none but the official ballot should be counted was not the controlling feature in this case. The ballots came from the proper officers and in fact were the “official ballots,” but such ballots failed to comply with the provisions of the law in two respects; one of which, the having of the words “official ballot” thereon, might perhaps have been held merely directory, the other of which, the using of two ballots instead of one, went to an “essential element” of the law, and could not be disregarded whether it actually affected the result of the election or not. The judgment of the trial court and order sustaining the demurrer are reversed. , HANEY, J., dissenting.