Drinkwater v. Nelson

Bikdzell, J. Election contest. This is an appeal from a judgment rendered in favor of the contestant. The contest was instituted by the service of notice under § 1046 pf the Compiled Laws of 1913. Proceedings were instituted not only against the defendant and appellant named in the title hereto, but against a number of other contestees holding certificates of election. Upon motion of the contestees, made during the trial, all contests except the one involved herein and another were — 874 — dismissed. All were tried together and at the conclusion of the trial a judgment was rendered finding that the contestant, Drinkwater, had been duly elected to the office of sheriff. On the face of the returns Nelson íeceived 1619 votes and Drinkwater 1595 votes. Upon a recount of eighteen precincts it was found by the trial court that there were 1597 votes for Drinkwater as against 1599 for the defendant, Nelson. It was further found that certain ballots were cast in favor of the defendant by persons who Were not residents of the precinct in which they voted and some by persons who were not citizens of the United States. It was also found that votes were cast and counted for the defendant in three precincts, 21 votes in all, which had not been legally voted — the illegality consisting in assistance rendered by a judge of election where the elector did not require such assistance by reason of any legal disability. Thus on the face of the returns as revised by the recount, thirty votes appearing to have been cast for Nelson were substracted, making the votes stand, as a result of these proceedings, 1597 for the plaintiff to 1569 for the defendant. The first assignment argued by the appellant is that the notice of contest was not served within the time limited by the statute. Section 1046, Compiled Laws of 1913, says that any person desiring to contest the validity of an election or the right of any person declared duly elected to any office shall give notice in writing to the person whose election he desires to contest within 20 days after the canvass of the votes of such election. The notices, of contest were served on December 2, 1920, and it is claimed that the canvass was completed on November 10th or nth. Much testimony was directed to the question as to when the canvass was, in fact, completed. The proceedings of the board of county commissioners, as published in the official paper some time after the canvassing was completed, made no reference to the canvass. They show that the board met on November 9th and 10th, and that on the 10th it adjourned to meet again on November 18th. The 'minutes of the proceedings indicate nothing but the transaction of ordinary county business. There are two copies of the abstract of votes in evidence, both of which are dated November 13th and are signed by the members of the canvassing board. Each one contains a certificate of thé county auditor to the effect that it is a true and correct copy of the original abstract, and each of these is dated the 13th. One of the certificates of the canvassing board, however, was apparently dated originally, “November xo,” but the “10” is scratched out with a pen, and “13” written — 875 — after it. These, in brief, are the circumstances chiefly relied upon by the appellant as showing that the canvass was completed more than 20 days before the service of notice of contest. A clear preponderance of the evidence given by the witnesses, however, establishes that the canvassing board was in session on November nth and 12th, and that the minutes of the board of county commissioners, as prepared for publication and as published, did not show the .true proceedings, or, in fact, any proceedings of the board of canvassers. The trial court’s findings in this respect are well supported by the evidence introduced at the trial, and we think it clearly appears that the notices were served within the 20-day period prescribed by the statute. We may observe here that the contestant does not impeach any record actually made of the canvass; and that counsel for the contestee and appellant practically concede that the testimony of the witnesses is against their contention, for they find it necessary to attack this evidence as being “fabricated” or false. The trial court believed the testimony, and we can see no reason for reversing the findings made in so far as credibility is involved. It is next contended that the court erred in permitting a recount of the ballots cast in Garness and Forthune precincts, for the reason that the ballots so recounted had not been kept as required by law. It seems that an iron box had been provided by the county as a repository for the ballots. This box was kept in a vault in the courthouse, which was set aside for the joint use of the county judge, the clerk of court, and the register of deeds. The box had evidently been provided prior to the increase in the electorate incident to woman suffrage, and was not large enough to hold all the ballots. After it was filled the remaining ballots were stored in the vault, as they came in, upon or near the box. It is claimed that the ballots so kept are not admissible in contest proceedings by virtue of chap. 121 of the Session Laws of 1919. That chapter amends § 1008 of the Compiled Laws of Í913. It provides, among other things, that the election judges shall wrap the ballots by sealing them with sealing wax and stamping the name of the county with a metal stamp provided for the purpose, so that the wrappers cannot be opened without breaking the seal, that they shall be returned by mail to the county judge, and that he shall arrange them in boxes which shall be securely locked and placed in a fireproof vault, where they shall be securely kept for six months. The purpose of the act is declared as follows : “It is the purpose of this act (section) to provide a safe place for the — 876 — keeping of the ballots and to make them readily accessible for use in legal proceedings, and such ballots shall be received in evidence, without further identification or foundation being laid, and any faliure on the part of the election officers to comply with any of the formalities required hereby as to the return of said ballots shall not invalidate any election or cause any ballot otherwise regular to be disregarded and any omissions or irregularities in the manner of identifying or returning the ballots of any precinct may be obviated by proof under the ordinary rules of evidence.” Full compliance with the statute is declared to be a sufficient foundation for identification; but, where the statute has not been strictly complied with, the ordinary legal foundation for identifying the ballots is required. If the contention of appellant’s counsel be correct, it .would follow that any meritorious contest could be wholly defeated through the mere failure of the county judge to fully comply with the strict letter of the statute. Such is not the evident purpose, for the Legislature has specifically said that any omission “in the manner of identifying” the ballots may be obviated by proof. The failure to keep the ballots as required is an omission in the manner of identifying them, and hence opens the way for ordinary proof under the express language of the statute. But counsel argue that the ballots should not have been received in evidence because of the condition in which they were found, namely, in bundles with the seals broken, and, in one instance, in a gunny sack, which they contend is not the sack in which they were mailed to the county judge. The sack incident is fully explained in the record, and we think the identity of the original package was fully established. As to the other bundles, the trial court was in a much more advantageous position than this court to determine whether they presented an appearance of having been tampered with, and the ruling will not be reversed unless clearly erroneous.. Moon v. Harris, 122 Minn. 138, 142 N. W. 12. It appears, however, that some of the bundles which had been kept in the box were in no better condition than those that had not been so kept; and it might be further observed that no effort was made to disprove the identity of the ballots themselves, and that, apparently, no ballot was recounted that did not bear all of the evidence of genuineness that is inherent in a regular ballot; such, for instance, as the official stamp and the initials of the inspector of election. We are of the opinion that the ballots were properly received in evidence. — 877 — Error is likewise assigned upon rulings of the trial court excluding the opinions of witnesses who observed the counting of - the ballots in the precincts, as to whether, in their opinion, it was possible for the errors shown by the recount to have been committed. There was a full showing of the facts in each instance of the manner in which the votes were counted originally by the election officers. Obviously there' was no occasion to resort to the conclusions or opinions of witnesses as to the ultimate fact of correct counting. Such opinions were clearly not competent. This brings us to the question of the individual votes excluded by the trial court on the ground of nonresidence. The appellant challenges the findings of the trial court wherein it was found that Otto Nelson and his wife, W. G. Reibe and his wife, and Clarence Onstatt and Pansy Onstatt, were not residents of their respective precincts on election day. Otto Nelson had been a resident of the county for some years prior to the fall of 1920. Some time prior to August 28, 1920, he advertised in the local paper a public sale of his live stock, farm machinery, and household goods to be held August 28th. The advertisement recites: “Plaving sold my farm, and as I am moving out of the country, I will sell at a public auction,” etc. After the sale was held Nelson and his wife remained in the vicinity for some time to collect notes and wind up their business affairs. They went away about a week before election, and the ballots cast were absent voters’ ballots. They made a short visit with relatives in a distant part of the state, and did not return to Burke county, but went to California, where they they were apparently settled permanently by December nth, as a letter of that date so indicates. While there is some evidence that their plans for the future were unsettled at least up until the time they left, we think the evidence as a whole proves that they had left the precinct without any intention of returning, and that it amply supports the finding of the trial court that they were in fact nonresidents at the time of the election. Otto Nelson was a brother of Andrew Nelson, the contestee, and the evidence tends strongly to show that both he and Mrs. Nelson voted for the latter. We do not understand it to be seriously contended by the appellant that Reibe and his wife were residents of the precincts on election day. The specification that the court erred in finding that Mr. and Mrs. Reibe had voted for the defendant Nelson is likewise apparently aban-' doned, for it is not argued in the brief. For reasons which will present — 878 — ly appear it is unnecessary to consider the two Onstatt votes. The court found that Alma Brudvick, Mary Skalicky, and Muriel Bykonen were not legal voters, by reason of being aliens or married to alien husbands. The finding that these women were not legal voters is not attacked by the appellant, but he does complain of the subtraction of the three votes from the contestee. Alma Brudvick voted in Garness precinct, where the women’s votes were 4 for Drinkwater and. 24 for Nelson. Mrs. Skalicky and Mrs. Bykonen voted in Colville precinct, where the women’s votes stood 5 for Drinkwater to 29 for Nelson. It will be seen that the ratio is about one-sixth, and if all evidence as to the political affiliations of these women be ignored and their votes regarded as simply illegal, which does not seem to be disputed, 2^4 votes should be subtracted from the Nelson vote, and one-half a vote from the Drink-water total. McCrary on Elections (4th ed.) §§ 495 — 497. Thus Nelson’s vote stands 1,592^ to Drinkwater’s 1,596^. Obviously the result would not be changed if Nelson should be given the benefit of the Onstatt votes and of a ballot marked “Exhibit 121,” to the exclusion of which he also excepts. So it is unnecessary to pursue further the subject of the individual votes. Counsel for the appellant complain of a ruling of the trial court excluding from this contest certain absent voters’ ballots in the precinct of Cleary, which were counted for Drinkwater, and of the denial of a motion to permit the defendant to amend his answer so as to exclude these votes from Drinkwater’s count. The votes of the Cleary precinct were in no wise involved in the issues presented and tried in this contest. They were not mentioned in the notice of contest nor in the defendant’s answer, and the recount was only had for its bearing upon another contest involving the office of county commissioner. The statute provides for the framing of issues through the notice of contest and the answer thereto. Sections 1046 and 1047, Compiled Laws of 1913. Section 1047 requires the defendant to serve an answer within 10 days after the service of notice upon him; and it further requires that “he shall state any other grounds upon which he rests the validity of his election.” The motion was not made until the close of the testimony offered by the plaintiff, and, even if it be conceded that .the defendant was not required to put these votes in issue in an answer served within 10 days after the notice, and that the trial court had a discretion to permit an amendment, we think the trial court properly exercised any discretion it might have had. — 879 — It follows that the judgment of the trial court was right, and it is affirmed. Christianson and Robinson, JJ., concur. Bronson, J., concurs in result.