Hehn v. Olson

MR. JUSTICE CASTLES

specially concurring.

I concur in the result of Mr. Justice Bottomly’s opinion, but wish to add my views:

This is an appeal from a judgment of the district court of the seventh judicial district in favor of the plaintiffs and against the defendants which judgment decreed that a school bond election of High School Building District No. One of Dawson County was null, void and of no effect. The judgment also decreed that the defendants be permanently enjoined from issuing bonds, levying a tax assessment, attempting to collect any tax from a tax assessment, or holding an election to select a site for a new high school as a result of such bond election.

The action was brought by the plaintiffs who were taxpayers and residents of Dawson County residing in School Districts Nos. 1 and 36, against the defendants, who were the members of the board of trustees of Dawson County High School, the clerk of said board of trustees, the county commissioners of Dawson County, the county assessor of Dawson County, and the county treasurer of Dawson County. The litigation arose out of alleged irregularities in the conduct of an election to authorize a bond issue which was held on September 19, 1959. The bond issue was proposed for the purpose of providing funds for the construction and furnishing of a new high school.

The evidence adduced at the trial disclosed the following facts which are pertinent to this decision:

After the polls were closed the election officials separated the ballots into two piles — one pile of “no” ballots and one pile of “yes” ballots. Seven of the “no” ballots were disqualified because of irregularities in marking. The poll-list was cheeked with the ballots that were east and it was found that there were seven more ballots cast than votes contained in the poll-list. However, with the disqualification of the seven “no” ballots the number of ballots counted balanced with the number of votes on the poll-list. It was stipulated that seven voters whose names were not on the poll-list were qualified to vote and did vote but the election clerks failed to put their names on the poll-list when they voted.

There was some confusion as to when the seven “no” ballots were actually disqualified. Mrs. Kalloch, a judge of the election, testified on direct examination that the ballots were divided into the two piles of “yes” and “no” ballots and then the number of ballots was compared to the number of votes in the poll-list, and it was found that there were seven more ballots east than votes contained in the poll-list. After this was determined seven of the “no” ballots were disqualified. However, on cross-examination she testified that the seven “no” ballots were disqualified as the election officials came to them in separating the ballots into the two piles. The testimony of Mrs. Olson, also a judge of the election, was very uncertain as to when the seven “no” ballots were disqualified, although at one point in her testimony she said they were disqualified as the election officials came to them when the votes were separated into the two piles. All of the testimony was to the effect that there was never a drawing by lot of seven ballots to make the number of ballots cast tally with the number of votes contained in the poll-list as required by R.C.M. 1947, § 75-1612.

The canvass of the vote resulted in the official tally of 772 votes for the proposition and 763 votes against the proposition. This was after seven ballots against the proposition were disqualified for irregularities in marking.

The sole issue raised by the defendants’ two specifications of error is whether certain irregularities in the method used by the election officials in counting the votes made the results of the election void.

R.C.M. 1947, § 75-3913, provides in part, as to school bond elections, that “The bond election shall be conducted in the manner prescribed for the election of school trustees and return shall be made and canvassed in a similar manner.”

R.C.M. 1947, § 75-1605, provides in part that “* * * The voting must be by ballot, without reference to the general election laws in regard to nominations, form of ballot, or manner of voting ® * *.” This section refers to the conduct of the elections for school trustees in second and third class school districts and also to bond elections in these school districts pursuant to § 75-3913. Upon oral argument it was stipulated that this section was applicable to the instant case.

In reference to the manner of counting the ballots in school trustee and bond elections R.C.M. 1947, § 75-1612, provides, in part:

“At every election held under this act, a poll-list shall be kept by the judges and clerk at each polling-place, and immediately after the close of the polls the judges shall count the ballots, and if there be more ballots than votes cast the judges must draw by lot from the ballots, without seeing them, su,fficient number of ballots to make the ballots remaining correspond with the number of votes cast.” Emphasis supplied.

The election officials in the instant case did not follow the directions of this statute in any respect. They divided the ballots into piles of “yes” and “no” ballots immediately upon completion of the voting and then determined that the number of ballots cast did not correspond to the number of votes contained in the poll-list. Seven of the “no” ballots were disqualified (whether this was done before or after the comparison between the number of ballots cast and the number of votes in the poll-list is in question), and the balance between the number of ballots cast and the number of votes contained in the poll-list was made.

As set forth above, § 75-1612 imposes the duty upon the election officials to use the method specified in that section to determine if the number of ballots cast corresponds to the number of votes contained in the poll-list. If the numbers do not correspond the election officials have the duty to draw by lot, without seeing them, the number of ballots required to make the two figures correspond. The ballots so drawn are not counted.

In the Montana case of Thompson v. Chapin, 64 Mont. 376, 209 P. 1060, this court held that the failure of election judges to require electors to sign the registry books before voting at a primary election was the fault of the judges and not of the electors and therefore the votes were legal and properly counted. However, in the course of the opinion it is stated, at p. 385, 209 P. at page 1062:

“* * * While it is true that irregularities invite a concealed fraud, yet, where the fault lies with the election officials rather than the elector, they should be disregarded, unless the statute expressly declares that the same is fatal to the election, or unless they are such as to themselves change or render doubtful the result of the electionEmphasis supplied. This language was quoted with approval in the later case of Atkinson v. Roosevelt County, 71 Mont. 165, 180, 227 P. 811.

It is nowhere provided that a failure on the part of the election officials to follow the provisions of § 75-1612 will be fatal to the election. Therefore, unless the failure to follow the statute would “change or render doubtful the result of the election” the election results must stand under the rule stated in Thompson v. Chapin, supra.

If the disqualification of all of the seven “no” votes was proper the result of the election would not be changed by the failure of the election officials to follow the statute, since there would still be a majority of 'votes in favor of the proposition. So it becomes necessary to consider whether all of the seven “no” votes were properly disqualified.

Montana’s school trustee and school bond election laws contain no provisions allowing election officials to disqualify ballots. However, the general election laws have authority allowing election officials to disqualify certain ballots. This is found in R.C.M. 1947, § 23-1704, which provides:

“* * # and any ballot or parts of a ballot from which it is impossible to determine the elector’s choice is void and must not be counted; if part of a ballot is sufficiently plain to gather therefrom the elector’s intention, it is the duty of the judges of election to count such part.”

In Peterson v. Billings, 109 Mont. 390, 96 P.2d 922, this court indicated that in general elections the intention of the voter is the most important element to be considered, and if the ballot plainly shows the intention of the voter it must be counted.

We realize that § 23-1704 and the case of Peterson v. Billings, supra, have reference to the general election laws of the State of Montana and do not involve school bond elections. However, even though § 75-1605 provides that the conduct of elections in second and third class school districts is “by ballot without reference to the general election laws in regard to nominations, form of ballot, or manner of voting” election officials must be governed by some rules in determining the validity of votes. We hold that the rule stated in § 23-1704, with reference to determining the validity of ballots in general elections should also apply to school elections. Therefore, a ballot should be counted in school elections if it is “sufficiently plain to gather therefrom the elector’s intention.”

In deciding this case, we find it necessary to consider the validity of only two of the “no” ballots that were disqualified by the election officials and that have been certified to this court as plaintiffs’ exhibit 3.

The official ballots for this election, after setting out the instructions to voters and the proposition for which they were voting, had the following form:

(□) Bonds — Yes

(□) Bonds — No

One of the ballots had one faint diagonal line which the voter had attempted to erase in the square in front of the words “Bonds — Yes” and there was a distinct “X” marked in the square in front of the words “Bonds — No”. Another one of the ballots apparently had an “X” which had been solidly marked over and obliterated by pencil in the square in front of the words “Bonds — Yes” and a distinct “X” marked in the square in front of the words “Bonds — No”. Bach of these two ballots were marked sufficiently plain to gather the elector’s intention to vote “no” to the proposition and they should not' have been disqualified but should have been counted against the proposition. Some of the cases from other jurisdictions following this rule concerning the treatment of erasures and obliterations are Allen v. Fuller, 332 Ill. 304, 163 N.E. 675; Pye v. Hanzel, 200 Minn. 135, 273 N.W. 611; Austin v. Anderson, 279 Ky. 742, 132 S.W.2d 56; Aura v. Brandt; 211 Minn. 281, 1 N.W.2d 381; Munn v. Dabrowski, 335 Mass. 41, 138 N.E.2d 570.

We find it necessary to hold only that the two ballots mentioned above should have been counted against the proposition, however, we wordd also like to point out that three of the other five disqualified ballots seem quite clear in evidencing an intention oil the part of the voter to vote against the proposition. Each of these three ballots have a distinct “X” marked in the square in front of the words “Bonds — No” although they each also have words such as “for an addition” written on them.

As we have already noted the canvass of the vote resulted in 772 votes in favor of the proposition and 763 votes against the proposition. In addition to this the evidence showed that seven other ballots against the proposition were disqualified so there was a total number of 1,542 ballots cast in the election counting the disqualified ballots. However, the poll-list showed a total of only 1535 votes or seven less than the total number of ballots that were actually east in the election. If the election officials would have followed the requirement of § 75-1612 they would have counted the ballots first, determined that there were seven more ballots cast than votes contained in the poll-list and drawn out seven ballots by lot without looking at them. It would have been possible for the officials to draw out seven “yes” ballots. If this had been done the proposition would not have carried since there would have been 772 minus 7 (the seven “yes” ballots drawn out by lot) or 765 votes for the proposition and 763 plus 2 (because of the erroneous disqualification of at least two of the “no” ballots) or 765 votes against the proposition, resulting in a tie vote. Therefore, the failure of the election officials to follow the provisions of section 75-1612 together with the erroneous disqualification of two “no” ballots could have changed or rendered the result of the election doubtful. The lower court was correct in holding that the election was null, void and of no effect.