Smiley v. Armstrong , 66 S.D. 31 ( 1938 )

At the general election in November, 1936, the plaintiff, R.A. Smiley, and defendant, J.M. Armstrong, were rival candidates for the office of state's attorney of Butte county. The canvassing board, having determined that defendant had received a greater number of votes, issued to him a certificate of election. This proceeding was then instituted in the circuit court. Upon a recount of the ballots cast at the election the trial court found that 1,304 votes had been cast for the plaintiff and 1,301 for the defendant, and by judgment the former was declared elected. From this judgment defendant has appealed.

Defendant on this appeal contends that the court erred in rejecting from the count five ballots which should have been counted for him and in counting for the plaintiff six ballots that should have been rejected. Exceptions to rulings of the court upon the validity of other ballots were made by plaintiff. The ballots thus excepted to by the parties have been brought before this court for inspection and consideration, and the only questions presented are as to the rulings of the trial court on the validity of these disputed ballots.

[1] Ballot, Exhibit CI, is a rejected ballot which is marked with a green pencil. Section 7241, as amended by chapter 160, Laws 1925, provides that the voters shall use a pencil to mark his ballot, and no pen, stamp, or other instrument than a pencil shall be used. This statute relating to the general election does not specify the kind of pencil to be used as does the primary election law, which requires the marking of a ballot "with a plain lead pencil." Section 29, chapter 118, Laws 1929. It is claimed that the cross drawn with the colored pencil constituted a distinguishing mark. As the statute does not specify the color of the pencil with which a ballot shall be marked, we conclude that the court erred in rejecting this ballot. If a voter uses an instrument permitted by statute to mark his ballot, the ballot is valid unless it otherwise appears that it was marked for the purpose of distinguishing or identifying it.

[2] Ballots identified as Exhibits 6E, 13H, and 14D, cast for defendant, were rejected by the court below because of erasures on each of these ballots apparently made by the voter in attempting to correct an error in marking. The trial court also rejected ballot, Exhibit 3A, cast for plaintiff. This ballot has a cross in the square before the name of a candidate and the square is filled with pencil marks covering the square. It is claimed by plaintiff that it appears from the face of this ballot that the cross over which the pencil marks appear was made by mistake, and that the voter attempted to mark out the cross as indicated. Defendant contends that where an erasure does not show an attempt to make a distinguishing mark, and is so slight as not to be easily discernible, a ballot so marked is not void. But our decisions appear to have settled the rule otherwise, and such construction has long been acquiesced in. This court held that the provisions of section 1922, Pol. Code 1903, section 7272, Rev. Code 1919, which provided that if a voter spoiled a ballot he should return such ballot and obtain another, required a ballot to be rejected if there were erasures or obliterations made by the voter; that the voter was not permitted to correct the ballot himself, but must proceed in the manner provided by statute. Woodruff v. Heltibridle, 37 S.D. 35, 156 N.W. 579; Dunn v. Gamble, 47 S.D. 303, 198 N.W. 821; see, also, Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321. The Supreme Court of California in People v. Campbell 138 Cal. 11, 70 P. 918, placed the same interpretation upon similar statutory provisions. The Legislature of that state subsequently amended the election law relating to marked and spoiled ballots to prevent the rejection of ballots unless it shall appear that a distinguishing mark was placed thereon intentionally by the voter. Turner v. Wilson,171 Cal. 600, 154 P. 2; Sweetser v. Pacheco, 172 Cal. 137,155 P. 639.

[3, 4] It appears from an examination of the provisions of section 7272, Rev. Code 1919, that the provisions of section 1922, Pol. Code 1903, were re-enacted without change. There is a presumption of intention to adopt the construction as well as the language of the prior enactment. 25 R.C.L. 1075; R.C.L. Sup., title Statutes, § 297. This court has held that a similar principle applies where a statute is patterned after legislation of another state which has been judicially construed there prior to its enactment in this state. See Melby v. Anderson, 64. S.D. 249, 266 N.W. 135, and cases cited. Conceding that the prior construction may not be binding upon us, nevertheless, we should not depart from such construction in the absence of cogent reasons. We discover no such reasons, and, adhering to the prior construction of the statute, hold that the ballots in question were properly rejected by the trial court.

[5] Ballot, Exhibit 13D, marked for the plaintiff, and ballot, Exhibit 23S, marked for the defendant, were improperly counted. Each of these ballots contain in a square before the name of a candidate a partially-erased diagonal line. We think for reasons stated that these ballots should have been rejected.

[6] The trial court counted over objections of the defendant ballots identified as Exhibits 14J, 23E, and 20G. These ballots were objected to upon the ground that, inasmuch as the designs used by the voters in the expression of their choice do not conform to that provided by statute, they are marked in contravention to the provisions of sections 7264 and 7277, Rev. Code 1919, providing the method for marking ballots, and that no ballot shall be counted except those voted in accordance with these provisions. It appears from the record that these alleged errors urged by defendant are counterbalanced by the counting of ballots identified as Exhibits 20D, 11C, and 20C, similarly marked, over objections of the plaintiff. If the court erroneously rejected these ballots in favor of the defendant, it was not prejudicial. Cameron v. Babcock, 63 S.D. 554,262 N.W. 80, 101 A.L.R. 650.

[7] Ballot, Exhibit 23D, is marked in the Democratic Party circle by three straight lines. The only objection to the counting of this ballot appears to have been the additional line drawn through the cross near the center of the circle. We are of the opinion that this does not constitute a sufficient reason for rejecting the ballot. By section 7264, Revised Code 1919, the voter is required to mark his vote by an "X" mark. The marking on this ballot substantially complies with the statute. Vallier v. Brakke, 7 S.D. 343, 64 N.W. 180.

The court below counted ballot, Exhibit 21B, cast for the plaintiff. There is an additional line drawn through the cross in the Republican Party circle; one line of the cross is paralleled by a third distinct line. The court counted in favor of the defendant ballots, Exhibits 19I and 23R, similarly marked. If the court erred in its ruling on the ballot in question, the appellant has not been prejudiced by such ruling. Cameron v. Babcock, supra.

[8, 9] Ballot, Exhibit 8A, has a check mark to the right of each of the names of candidates for whom the voter indicated a choice. Section 7273, Rev. Code 1919, provides that "No elector shall place any mark upon his ballot by which it may afterwards be identified as the one voted by him." The purpose of these provisions is to prevent the identification of ballots and to maintain their secrecy. It is not suggested in the record that these check marks were not made by the voter. It seems to us that in considering the effect of these marks upon this ballot we are called upon to construe in a sense a document. In Patterson v. Hanley, 136 Cal. 265, 68 P. 821, 823, 975, in considering a similar question the court said: "In this connection it should be stated that there is here no question of fact, but only one of law. The same evidence is before us that was before the trial court, viz., the original ballots, — and there is no suggestion in the argument or evidence in the record that they were or might have been altered or tampered with after leaving the hands of the voters who prepared them. In ruling upon their validity, therefore, we are not weighing evidence, but merely construing a document, the contents of which are undisputed." See, also, Le Claire v. Wells, 7 S.D. 426, 64 N.W. 519; Church v. Walker,10 S.D. 90, 72 N.W. 101.

[10] It clearly appears that these marks at unauthorized places on the ballot were deliberately made, were not merely accidental or inadvertant, and serve to identify the ballot. A mark upon a ballot in an unauthorized place which does not appear to have been made accidentally or inadvertently and which may serve as a distinguishing mark invalidates the ballot, and the intention of the voter cannot be shown other than by what appears upon the face of the ballot. Church v. Walker, 10 S.D. 450, 74 N.W. 198; Ward v. Fletcher, 36 S.D. 98, 153 N.W. 962, 965. The ruling of the trial court is sustained.

This disposes of all of the errors assigned by the defendant. The determination by the trial court that plaintiff is entitled to a certificate of election is supported by the record, and the mere fact that the determination as to the exact number of votes received by each of the candidates is incorrect does not require a reversal.

The judgment appealed from is affirmed.

POLLEY, RUDOLPH, and SMITH, JJ., concur.