Brattland v. Calkins

CANTY, J. This is an appeal from the judgment of the court below deciding an election contest over the office of judge of probate of Norman county, which contest was conducted under G. S. 1894, §§ 186, 190, 191, 194. On1 the face of the returns of the general election held November 3,1896, the appellant, Calkins, received 1,387 votes, as against 1,364 for the respondent, Brattland, or a majority of 23, and was declared elected. Thereupon Brattland served a notice of contest, and the matter came on for trial before the district court. The vote of the precinct of Beaulieu was on such trial thrown out. Calkins received 70 votes in this precinct and Brattland 28. This left 1,317 votes for Calkins and 1,336 for Brattland, and the latter was by the court declared elected by a majority of 19. The question presented on this appeal is whether or not the residents of the territory covered by the alleged voting precinct of Beau-lieu were entitled to vote for probate judge at the election in question. The portion of Norman county included in this alleged precinct [123] is a part of the White Earth Indian reservation, and, of course, there are no organized townships in the same, which, under G. S. 1894, § 8, would constitute election districts. Claiming to act under G. S. 1894, §§ 10, 11, the governor, on October 10, 1896, made an order purporting to establish a new election district, “in' Norman county,” out of townships Nos. 144, 145, and 146, in ranges 38, 39, 40, 41, and 42. Of these 15 congressional townships, 12 are in Norman county and 3 (also in the reservation.) are in the unorganized county of Beltrami; the line between the two counties being the line between ranges 38 and 39. The governor had no authority, under the law, to establish an election precinct out of a portion of each of two counties, and we are of the opinion that the attempted establishment was absolutely void. Appellant contends that, as the order describes the territory included in the precinct as being in Norman county, it is evident that the three townships in range 38 were included by mistake. In answer we will say that we cannot construe the description in this order as we would the description in a voluntary deed, which is construed most strongly against the grantor and in favor of the grantee. We cannot, for the purpose of giving effect to this order, reject as surplusage the three towns outside of Norman county. To attempt to uphold in this way such an extremely inaccurate public transaction would result in great confusion for all future time. Such gross error in the establishment of political divisions that are to endure perhaps for many years would be a fruitful source of mistake on the part of voters and local officers at every election, and cannot be tolerated. Appellant cites Stemper v. Higgins, 38 Minn. 222, 37 N. W. 95, as authority for his position that, when the vote is cast and counted, an irregularity as to the territorial limits of a voting precinct is not a sufficient cause for throwing out the vote of that precinct. That case grew out of the mistake of supposing that a village was a separate voting precinct from the rest of the township. The voters of' the village voted at a different polling place from those of the rest of the township. In that case the voters were entitled to vote somewhere for all officers for whom any votes were cast. In this case, the-voters were not entitled to vote at all until the territory was organized for voting purposes, which had, in fact, never been done, and, [124] besides, the residents of the three townships in Beltrami county would in no event have a right to vote for probate judge of Norman county. It does not appear whether or not any residents of these three towns voted in this precinct at this election, and appellant contends that the burden was on the contestant to show that they did so vote before he is entitled to have the votes of the precinct thrown1 out. Appellant mistakes the radical character of the irregularity in question. It is not a temporary or casual irregularity, which may not occur again, but it is one which must necessarily continue to occur at every election, and be a source of perpetual strife, as long as the precinct remains. Public policy will not tolerate the recognition of such a precinct at all, and we must hold that the attempted organization of it is an absolute nullity. 2. Another ground of contest presented by respondent is that all of the proceedings for the establishment of this precinct were had too late to comply with the law. Section 10, G-. S. 1894, provides: “Whenever any number of voters, not less than eight, residing in an unorganized or partly organized county, shall, at least eight weeks before any general and six weeks before any special election, petition the governor to establish a new election district, designating the boundaries of the same,” etc., he is authorized to establish such district. Section 11 provides: “The governor shall, within at least six weeks before a general election and within four weeks before a special election, publish in one newspaper published at the state capital a list of all election districts by him established in unorganized counties, together with the places where the elections are to be held, and the names of the judges of election by him appointed.” While section 11 uses the words “within at least six weeks,” it seems to us clear that the legislature meant that the list of precincts established should be published at least six weeks before election, and not during the six weeks, especially as section 10 requires the petition to be presented at least eight weeks before election. The petition for the establishment of this precinct is dated September 24, 1896, or two weeks and two days too late to give the eight weeks before election required by the statute. The list was published once in the St. Paul Dispatch on November 2, the day before •election, while the statute requires that it shall be published at least [125] sis weeks before election. We must hold these statutory provisions mandatory, and not directory, in view of the necessity of notice to the voters of the changed conditions which give them an opportunity to vote, and the necessity of preparing poll lists 20 days before election, and posting the same 10 days before election, together with notice of the time and place of the meeting of the board to correct the lists, as required by G. S. 1894, § 60. Then, even' if this voting precinct was in other respects regular, it must be considered as organized too late, or not organized at all, for the purpose of the election in question, and the vote cast in that precinct at that election should not be counted. There is nothing in appellant’s position1 that, although these irregular proceedings appear, it should still be presumed that the precinct was regularly established by other and different proceedings. No such presumption exists. Barber v. Morris, 37 Minn. 194, 33 N. W. 559; Godfrey v. Valentine, 39 Minn. 336, 40 N. W. 163. 3. Whether or not the state authorities have power to organize, for election purposes, the territory included within' the White Earth Indian reservation, is a question which it is unnecessary to decide on this appeal, and we decline to consider that question at this time. Neither is it necessary to consider the question whether the governor, under sections 10 and 11, or the board of county commissioners, under section 692 of the General Statutes of 1894, is the proper authority to organize election precincts in territory having no township organization, in a county organized to the extent that Norman county is, or whether the power conferred on each authority is in such a case concurrent. Judgment affirmed.