Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1899-07-14
AUSTRALIAN BALLOT
Supreme Court Passes on Interesting
and Important Features of the
Australian Ballot.
Controversies Arising in the Disputed
Election for Clerk of Court in
Nelson County.
Syllabus Of the Decision of the Court
Various Interesting Items of
News.
Interesting Law Points Construed,

In the supreme court decision in the
case of Howser vs.. Pepper, from Nelson
county, all election contest case involv-
ing the office of clerk of the court, there
are decided a number of points with re-
lation to the Australian ballot act. AS
these points have arisen continually in
election contests, the syllabus of the de-
cision will be interesting, as stating the
findings of the court with reference to
the questions of law. The court decided
that the election was a tie and so re-
manded the case to the district court
for settlement as the law provides. The
following is the syllabus of the decision
of the court:
l. Section 566, Revised Codes, relat-
ing to the trial of election contests by
the district court construed, and held,
tina. said section does not contine the
jurisdiction of the district court to try
election contests to a limited period:
held further, that the purpose of said
section is to create a speedier method of
trying such election contests than that
afforded by the procedure applicable to
ordinary civil cases; held further, that
the jurisdiction of the district court to
try election contests, when acquired by
service of the notice of contest continues
until such contest is tried or dismissed,
2. The original ballots cast at an
election are the best evidence to deter
mine the result of such election.
5. Such ballots continue as the best
evidence unless it appears that the Off
GERS charged with their custody have so
kept them that there is a reasonable
probability that they have been tamper-
ed with.
4. When it appears that ballot boxes
have not been kept by the person legally
charged with their custody and that they
have been exposed to the reach of unau-
thorized persons for a considerable time
the ballots lose their character as the
best evidence and cannot be allowed to
impeach the official canvass.
5. When the name of a person is
writted or pasted upon the official ballot
opposite the office to be voted for it
should be counted as a vote for such
person for that Office aver though there
is no mark in the square opposite such
name.
6. Ballots which do not have the pre-
cinct stamp and initials of the inspector
are declared to be void by section 524,
Revised Codes, and should not be count
ed.
7. Section 491, Revised Codes as
amended, which provides the methods
by which the elector may indicate his
choice of candidates, construed and
Held: That said section, SO far as it re-
lates to marking within the squares, is
mandatory, and that marks outside the
squares are not legal marks and are not
to be counted or considered for the pur-
pose of gathering the intention of the
voter.
8. A ballot on which the elector has
marked a party square, and has marked
the name of a candidate for any office in
the opposition ticket and has not marked
the name of the candidate for such office
on his party ticket by an individual
mark, clearly expresses his intention TO
vote for the person whose name he has
marked and not for his party candidate,
which intention must be given effect by
counting it for the person whose name
is so marked.
8. Where a ballot contains other than
legal marks, such marks will be pre-
sumed to have been innocently or unin-
%tentionally made and such ballot will be
counted unless it appears from the
marks themselves or by evidence aliunde
that they were intended as distinguish
ing marks will be held void in the alb
sence of a statute so declaring, not de-
cided.
10. Section 491, Revised Codes as
amended, only requires a mark in the
square at the top of the party ticket, or
"a mark or cross" in the quare opposite
the names of candidates. Held, that a
ballot which is only marked with a sin
gle straight mark in the party square
should be counted.
IL. Where al election for a county
office results in two or more persons hav-
ing an equal number of votes for the
same office. Neither one of such per-
sons is entitled to be declared elected by
the canvassing board until the result Of
such election is determined by lot upon
the notice and in the manner provided
for in section 528, Revised Codes, relat-
ing to the duty Of the county auditor in
case of tie votes, and a certificate of
election issued prior to such determine
ton is void.
Appeal from the district court of Mel
son county, Charles j. Fisk, Judge.
Templeton & Rex and H. D. Fruit for
appellant.
Bangs & Guthrie and F. A. Kelly for
respondent.