Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-07-10


The election contest lin Dakota county
for possession of the sheriff's office, between
Frank e. Newell and John L. Newton, was
decided yesterday by the supreme court
giving the office to Newton. The opinion
of the court upon the points of law and
facts involved is gi ven in full, as follows:
Supreme Court.
John F. Newton, contesta mt, vs.. Frank T..
Newell, contestee.
Syllabus l.. The appeal under section So.
chapter /, general statutes 1878, from the de-
cision of q board of county canvassers to the
district court, as to election to an office, is
perfected by the entry of notice of the appeal
with the clerk of such court. 1t is not neces-
sary that the notice specifying the points of
contests. provided for in section So, should
contain any statemant that an appeal has been
taken.
II. Section 50 gives the district count
jurisdiction to try election contests without
a jury.
Ill. Section 49, of said chapter, declaring
that if ballot contains a greater number
of names for any one Office than the number of
persons required to fill the same it shall be con-
sidered void, as to all the names designated to
fill such offices is peremptory. Whenever the
fact of the excess of names exists. the ballot is
protdnte void and cannot be counted. Ballots
upon which for a particular Office one name
is printed but not in any way obliterated, and
another name is written, cannot be counted for
the person of either name for such Office.
~. The ballots cast at an election may in a
contest, under section 50 (supra) be resorted to
ing the actual state of the vote. But to en-
title them to be used for this purpose it must
affirmatively appear that they have been SO
carefully preserved as to place their ideu.
tity beyond all reasonable doubt
If they have been carelessly cared for as readily
to afford frequent or continued opportunity to
interested parties, or the friends of interested
parties, to tamper with them or alter them, or
to add to or take from their number, unless all
reasonable doubts as to their integrity are re-
moved by an Affirmative showing. they should
not be received for the purpose of disquieting
the returns of the board of canvassers.
V. If for a certain office there is but one
person. running of given name, say the name
of Frank E. Newell, tho ballot for "NewelP'
simply should be counted for him. So should
ballot for Frank Newell or F. E. Newell, or F.
Newell. SO, if to designate the person voted
for letters are used in ballot which do not
properly spell the name Newell, but do spell
word which is iden, SoaGnl, such ballot should be
counted for Newell. But unless the ballot is one
should be rejected.
vi. Application of these rules to the facts
of this case.
Judgement of the contestant Newton af-
frmed.
John F. Newton, contestant, vs.. Frank E
Newell, contestee.
Opinion-This is a contest for the office of
sheriff of Dakota county, carried on under the
provisions of sections 80 and 81 of the general
election law, CHI. l, Gen. st. 1878.
l. Section 80 provides that an appeal may
be taken to the district court from the decision
of the board of county eanvassers by entering
notice thereof with the clerk of said court
within twenty days from the day of election,
and section 81 that the contestant
shall, within twenty days after the
votes have been canvassed, cause notice speci-
flying the points on which the election will be
contested to be served on the person whose
election he intends to contest. The appeal is
perfected by the entry of notice thereof with
the clerk. The statute does not require that
the notice to be served on the contestee shall
contain any statement that an appeal has been
taken, such statement is therefore wholly I'M
necessary. The district court acquires juris-
diction of the contest by the entry of notice
with its clerk.
II. Section 50 further provides that all mat
tiers relating to such contest shall be heard and
tried by the district court of the proper county
in the manner that civil actions are tried by
the court. This clearly gives the district court
jurisdiction to try such. contests without a
jury. This disposes of the preliminary points
made by the counsel for contestee and brings
us to the merits.
Ill. The application OF few general rules
deducible from the statute and general doc
trines of law will, we think, properly dispose
of the case.
". Section 10, of the election law, declares
if ballot is found to contain a greater num-
Der of names for any one Office than the num-
the said ballot shall be consid-
cred void as to sll the names
designated to fill such Office, but no further.
This is peremptory. Whenever the fact of the
names exists, the ballot is protante, void. and
cannot be counted. The statute leaves no room
for any speculation or conjecture rs to the in
tention of the voter. As respect the Office
thus voted for, the ballot must be rejected.
The six ballots for sheriff upon which the
name of either Newell or Wing was printed,
but not in any way obliterated, and the name
of Newton written. were therefore improperly
counted for Newton, and must be deducted
from his total vote as found by the count.
V. The ballots cast at an election may in a
proceeding of this nature as in quo ,Uarrarato,
and information in the nature thereof, be resort
ed to for the purpose of disputing the returns
of the board of canvassers, and of Investigating
and ascertsining the actual state Of the vote.
But to entitle them to be used for these pur-
poses, it must affirmatively appear that they
have in the language of section Is IT the cleo
ton law been carefully preserved" They
must have been SO carefully preserved as to
place their identity beyond any reasonable
doubt. If they have been carelessly
cared for as readily to afford frequent or con-
tinued opportunity to interested parties, or the
friends of interested parties, to tamper with
them, or add to or take away from their num-
Der, unless all reasonable doubts as to their in
tegrity are removed by an affirmative. showing
the ballots are not entitled to be resorted to for
the purposes mentioned. The ballots from EN-
pire and the second and third wards of Hast
ings were in our opinion too carelessly kept to
entitle them within these rules, to be received
in evidence, or considered by the court below in
this contest The former were therefore proper
" rejected by the court, and the two latter i'm
properly received.
W. With reference to the name by which q
candidate may be sufficiently designated, we
regard the following rules to be correct: If
for certain Office there is but one person run
ming of o given name, say the name of Frank
E. Newell, a ballot for NEWELL simply, with
out any Christian name or initial thereof will
pass, and should be counted for Frank E. New
ell, and 30 shonld ballot for Frank Newell, or
F. E. Newell, or F. Newell. So, if to desig-
nate the person voted for letters are used
which do not properly spell the name New
ell, but do spell word which is iden, sonona,
this should be counted. All these
should be counted for the reason