The Grant County herald. (Big Stone City, Grant County, Dakota [S.D.]) 1879-1883, 1883-03-02
A DECISION
Which Decides that Some Votes
Shall be Counted and Others
Shall NOt.-The Ballots of
Npringdale Rejected.


Territory of Dakota, County of Grant.
In District Court, in and for the 4th
judicial District.
Henry Schaier VS.. VIM. NJ. Evans.
This proceeding by mandamus hav-
ing been commenced by affidavit and
notice, and the defendant having ap-
peared by answer and am ended an
>wer, and it being agreed and stipulat-
ed by and between the said parties that
the affadadivit should be treated by
the Court as an alternative writ, and
that the answer and amended answer
should bc taken together and treated
us Il return thereto, and the issues OF
fact raised 10y said alternative writ
and return having come on to he heard
before the court without u jury-a ju
~ being duly waived-and the plain
tiff, Henry Schafer, having offered ev
idencc tending to prove that he was,
at the commencement of the proceed
ing. a taxpayer ana owner of real prop
erty in Big Stone City, and having Of
tered in evidence an alleged canvass
Of the vote for count seat cast at the
general election in 1881, supported by
certain parol testimony us to the time,
rass, and having offered twenty-five
poll books. claimed to he the poll books
of the twenty-five precincts of Grant
county, rs kept by the judges and
clerks at sad election, supported by
parol testimony as TO identity of the
! books and correctness of the vote cast
upon location Of the county seat in
precincts numbers two, four and eley-
Ell q, 1, lD, and the poll books in pre-
cincts eight, nine. ten, twelve, thir-
teen, fourteen, sixteen, seventeen,
eighteen. nineteen. twenty. and TWEEN
ty-two Is, 8, 10, l., i, IA. is, II, Is, II,
20 and .,.) being admitted and read III
evidence without objection, but said
alleged abstract and the books claimed
to he the poll books kept by the judges
and clerks of election IN precincts No.
one. two, three, four, five. SIX, seven,
eleven, fifteen and twenty -one, being
iohlectcd to hy the defendant,
rs incompetent evidence, and upon
the ground that 10 sufficient founoa
ton had been laid for their introdue.
tlon, and by agreement OF parties the
atlnissibility Of such testimony being
submitted to the court to be passed
upon in its findings upon the whole
case, and the plaintiff having thereup.
Oh rested his case. the defendant, Wm.
NJ. Evans then moved the Court for
al order denying the peremptory writ
and dismissing the proceedings upon
the grounds:
First; That the plaintiff. as it ap
pearcd from the pleadlngs and evi
deuce. was not the party beneficial.
interested.
Second. That the plaintiff had !;
plain, speedy and adequate remedy al
law.
Third. That Mi'bank had been de
clared to be the county seat by tht
Board Of County Commissioners
which decision was res ;ldjudicat; un
til reversed.
Fourth, That it appeared from til,
pleadings and evidence that more thai
two thirds the vote cast Was in favo
Of Milbank.
And the issues made by the plead
ings being narrowed and limited to tn
points and grounds Of the motion
and the Court desiring to consider tn
objections raised to the introduction
of said testimony and the points mad
by said motion-;lnd both sides there
upon submitting the case to the Cour
after argument, the same is taken III
der advisement-;lnl upon examina
tion of the testimony admitted, AM
the testimony offered. together will
the objections of defendant-and upo
consideration Of the admissions 0
fact made by the pleadings and upOl
the trial, find the following facts:
First. That the county Of Gran
was organized in the fall Of 1873; thl
the county seat was then located Il
IL, ~
where it remained until the Noyembe