Hughes v. Hill

MeCOY, P. J. [1] This case involves the legality of the 'submission of the question of the sale of intoxicating liquors at retail at the municipal election held at Springfield in April, 1912. The vote" was in favor of such sale. Section 2856, Pol. Code, and as amended by chapter 166, Laws of 1903, provides- that said question shall be submitted upon a separate ballot. At the said election the question of such sale of intoxicating liquors.was not submitted by a separate ballot; but the question “Shall intoxicating liquors be sold at retail?” was printed at the bottom of the official ticket or ballot used for the election of municipal officers at said election. It is -the contention of appellant that said election, in so far as it relates to the submission of the question of the sale of intoxicating liquors, was void and unauthorized by law. On the other hand, it is contended by respondents that, notwithstanding the failure to submit the question by a separate ballot, the result of said election fairly expressed the will of a majority of the voters, that the result was in no way affected by the manner of the submission, and that the election should stand as a legal and valid election, ánd that to hold such election invalid would, in effect, disfranchise the voters on that question by unauthorized action of the election officers. We are of the opinion that the contention of appellant is right. No one has a constitutional right to have such question submitted other than as provided by law. The only method provided for the submission of >süch question to a vote is by a -separate ballot. It is a positive and essential provision of the law, and to hold that any election was valid, submitting the question in any way other than by a separate ballot, would, in effect, [265] nullify this plain provision of the law. The principal reason for requiring the 'separate ballot is that each individual voter’s attention will be called specifically to this particular question, whereas, if permitted to be submitted upon a general election bqllot, as a part thereof, such question might be overlooked. [2] The submission of this question to a vote is governed by the provisions of a special law upon that subject, and the general law of elections is applicable only where the special -law fails to speak. State v. Harris, 22 S. D. 111, 115 N. W. 533. “The formality" and regularity of local option elections are to be tested by the terms of the statute under which it is held, and by the general principles of the law relating to elections, where applicable. There must be a strict compliance with any special provisions of the local option statute in regard to the officers who are to hold the elections and their duties, the hours for keeping the polls-open, the nature and scope of the question submitted to the voters, the form of the ballot to he used, the majority required to determine the result, and -the qualifications of the voters. But minor irregularities, not violating mandatory provisions of the statute, will not vitiate the election, unless it is shown that they changed the result.” 23 Cyc. 100. Black, Intox. Liquors, § 97; Woollen and Thornton, Intox. Liquors, § 534. The form of the ballot to be used in submitting such questions is not considered or classified as one of the minor irregularities which will not vitiate an election, but as one of the essential positive and mandatory provisions of the law, which must be strictly followed. [3] Of course, the prime object of all such elections is to discover the wishes of the voters, and, if' such wishes can be discovered, it -will be made effective, unless some positive provision of law has been broken or disregarded in expressing it. Woollen and Thornton, Intox. Liquors, § 534. Section 2856, Pol. Code, provides for a petition to be signed and filed, submitted on a separate ballot, and the form of the ballot. Most of these provisions have already been held to be mandatory by this court. We are of the opinion that the provision requiring a separate ballot is mandatory, and that the submission of said -question and election were void. [266] The judgment appealed from is reversed, and the cause remanded for further'procedure in accordance with this decision. HANEY, J, dissenting.