Bowler v. Eisenhood

12 L.R.A. 705, 48 N.W. 136, 1 S.D. 577, 1891 S.D. LEXIS 65

• Court: South Dakota Supreme Court
• Decided: February 17, 1891
• Status: Published

Opinions

Corson, P. J.

At the general election held in Brown county on November 4, 1890, three persons were voted for for the office of sheriff of that county, two of whom were the plaintiff and defendant herein. On November 10th following the election a board of canvassers for that county was convened at the county seat of said county, and it proceeded ‘ ‘to open the returns from the various precincts in said county, and make abstracts of the votes,” as provided by law, and on November 14th adjourned. This canvass disclosed the fact that the plaintiff and defendant had the highest and an equal number of votes for the office of sheriff. Subsequently, on November 22d, theaudtor.'of said county, pursuant to the provisions of Section 26, c. 84, Laws 1890, proceeded ‘ ‘publicly to decide by lot which of the persons so having an equal and the highest number of votes” should “be declared duly elected,” and he having by such method decided that the defendant should be declared duly elected, issued to him a' certificate of his election as provided in said act. On the 12th day of December following said election the plaintiff served upon said defendant a notice in writing that he intended to contest his (defendant’s) election as such sheriff, as provided in Section 1489. Comp. Laws. On December 15th the judge of the circuit court made an order requiring said plaintiff to show cause why said notice of contest should not be set aside, not having been served within twenty days after the canvass; andón December 19th said order to show cause was heard, and the court thereupon made an order setting aside said notice of contest; to the making of which order said plaintiff excepted, and from it appeals to this court.

The question presented for our decision is: Did the twenty days allowed plaintiff to serve his notice of contest commence to run upon the adjournment of the board of canvassers on November 14th, or at the time the tie was decided by lot on November 22d, and the defendant declared elected ? The determination of this question involves the construction of the tercn “canvass,” as used in section 1489, Comp. Laws. This section, so far as it relates to the question in controversy, is as follows: ‘ ‘Any candidate or person claiming the right to hold an office contested, or any elector of the proper county desiring to contest the validity of an election or the right of any person declared duly elected to any office in said county, shall give notice thereof in writing to the person whose election he intends to contest, within twenty days after the canvass of the votes for such election, which notice shall be served in the same manner as a summons in a civil action.” If the-term “canvass,” as used in this section, is limited and confined to the acts of the county board of canvassers as constituted under Section 1, c. 84, Laws 1890, then, as that board completed its labors and adjourned on November 14th, the notice was not served within time, and the order of the court was right; but if, as is contended by appellant, the term “canvass” embraces and includes the further proceedings taken by the the auditor on November 22d, provided for in Section 26 of said last-mentioned act, then the notice was served in time, and the order of the court below should be reversed. Section 26, referred to, is as follows: “If the requisite number of county officers shall not be elected by reason of two or more persons having an equal and the highest number of votes for one and the same office, the county clerk, whose duty it is to compare the polls, shall give notice to the several persons having the highest and equal number of votes to attend at the office of the county clerk or auditor, at the time appointed by said county clerk or auditor, who shall then and there proceed publicly to decide by lot which of the persons so having an equal number of votes shall be declared duly elected, and the said county clerk shall make and deliver to the fierson thus duly declared elected a certificate of his election, as hereinbefore provided.” The term “canvass,” as used in statutes relating to elections, has not, so far as our researches have extended, received any strictly legal definition, and, as generally understood, its meaning is not very definite or certain. Webster defines the term asa verb, “to examine thoroughly; to search or scrutinize;” and as a noun, “a close inspection to know the state of; as to canvass a vote.” Mr. Bouvier, in his Law Dictionary, (volume 1, p. 238,) defines “canvass” as “the act of examining the returns of votes for public officers. * * The determination of the board of cavassers of the persons elected to an office is prima facie evidence only of their election.” And under the head of “Canvassing Board,” in 6 Amor. & Eng. Enc. Law, p. 310, it is stated: “In nearly all the states the boards of canvassing officers are held to be ministerial officers, whose‘duty it is to receive receive returns from the various precincts or counties, as the case may be, and declare the results as shown by the face of the returns.” The term “canvass,” as used in our statutes, seems to have a broader and more comprehensive meaning that is given in in either of the definitions above quoted, and is made apparently to include all the proceedings for determining the result of an election from the closing of the polls to the formal declaration of who are elected. Section 1464, Comp. Laws, provides that “as soon as the polls of the election shall be finally closed the judges shall immediately proceed to canvass the vote given, at such election.” Section 1, c. 84, Laws 1880, (being Section 1471, Comp. Laws, with a few slight changes,) does not contain the term “canvass,” but provides that the board, composed of certain county officers therein specified, “shall jmoceed to open the returns from the various precincts in said county and make abstracts of the votes; * * * and it shall be the duty of the county clerk, or the county auditor, as the case may be, to make out a certificate of election to each of the persons having the highest number of votes * * * for county or precinct officers. ” While, as before stated, the term “canvass” is not used in this section, it clearly appears by Section 2 that such county board is a canvassing board, as that section provides that each of the aforesaid abstracts (mentioned in Section 1) of the votes made as aforesaid shall be duly signed and certified by the said canvassers under the seal of the -said county clerk. It will be further noticed by an examination of Section 1 that no provision is made, in direct terms, that said canvassing board shall decide, determine, or declare any person elected. Section 3 (ielating to members of congress) provides that “the person having the highest number of votes shall be considered duly elected,” and also provides that when there is a tie the secretary of state, in 'presence of the governor, etc., shall decide by lot which of said persons .shall be elected. The proceedings for the canvass of the vote for state officers under Section 8 is more full and explicit. The section is as follows: “They shall make an abstract stating the number of ballots cast for such office, the names of all persons voted for, for what office they respectively received the votes, and the number of votes each received, in words, at length, and stating whom they declare to be elected to each office, which abstract shall be signed by the canvassers in their official capacity and as state canvassers, and have the seal of the state affixed.” Construing these various sections together as constituting our election system, it seems to us quite clear that the legislature, in using the term “canvass,” in Section 1489, intended to include and embrace all the various acts of the canvassing board or officers necessary to fully decide or determine who of the persons voted for should be deemed or declared elected; and that such canvass cannot be said to have been made until that result is reached, or the fact — as in case of a tie of candidates for the legislature — that no decision can be made except by another election by the people. In other words; that the expression “make out a certificate of election to each of the persons having the highest number of votes,” etc., in Section 1, “shall be considered duly elected or shall be elected” in section 3, “stating whom they declare to be elected to each office” in Section 8, and “which of the persons so having an equal number of votes shall be declared elected” in Section 26, were intended by the legislature to mean substantially the same, namely,' the ascertaining who of the persons voted for are deemed, considered, or declared elected as shown by the final result of the canvass.

Can it be claimed that, in the case of two candidates for congress having an equal number of votes, the vote is canvassed when that fact is ascertained, and that the subsequent proceedings by identically the same persons in ascertaining which of the two is elected or “shall be elected” is not a part of the canvass? This case, perhaps, presents the question a little stronger than the one before us, for the reason that there the same board continues, while in this case only a part of the old board continues, although the important member of the board —the one who organizes it — continues. Returning to the consideration of Sectipn 1489, Comp.. Laws, it will be observed that an elector can only contest the right of any person ‘ ‘declared duly elected.” If the restricted construction of the term.“canvass” insisted upon by the respondent is given that section, an elector could not contest the election of any county officer except in case of a tie vote, as the law makes no provision for declaring any officer elected by the county canvassing board. But we apprehend that no one insist upon such a construction, yet there is no doubt such elector could not serve any valid notice of contest in the case of a tie until the person whose right to the office he sought to contest had been “declared duly elected” under Section 26, for such are the terms imposed. Can it be, then, that while an elector who seeks to contest in a case of a tie vote must wait until the tie vote is decided, and the person “declared duly elected,” before he can give a valid notice, a person claiming the office himself, who desires to contest, may serve his notice before his competitor is declared elected, or it is in any manner determined whether he or his opponent is entitled to the office? We cannot think the legislature intended to adopt a different rule in the same section as to the event when the time for serving the notice should commence to run in the case of an elector and that of a person claiming the office, — that the time in one case should commence to run from the adjournment of the canvassing board, and in the other from the time it is decided and declared by the auditor who is elected. Such a construction would seem to us to be clearly contrary to the intention of the legislature, and should only be adopted when the language will admit of no other construction, which we think is not the case here.

Again, it will be noticed that Section 1489 provides that the notice of contest shall be given ‘ ‘in writing to the person whose election he intends to contest.” What is the meaning of the term “election,” as used in this section? Do the lawmakers refer to the candidacy of a person for an office, — one who simply claims that he has received the highest number'of legal votes for the office? or do they mean the person who has been in some manner decided or declared to be elected? We think the legislature intended by' that that term the person actually determined to have been elected. This view seems to be confirmed by the definition of the term “election” by law writers. Bouvier in his Law Dictionary, (volume 1, p. 519,) defines “election:” “Choice, selection; the selection of one man from amongst more, to discharge the duties in a state, corporation, or society.” Mr. Anderson, in his Dictionary of Law (page 394) defines the term: “A choosing or selecting; also the condition of having been chosen or selected; choice or selection.” And this term, as generally used, is understood to mean one who has by some legally constituted board been declared elected to an office. We think, therefore, that the expression “the person whose election he intends to contest” is a person who has been decided or declared to be elected by a board or officer authorized to determine the result of the election, — one no longer simply a candidate voted for or subject to be declared elected, but one so declared or decided to be elected, and who has received, or is found entitled to receive, a certificate of his election. It is earnestly contended by respondent that, notwithstanding when the board of canvassers, as originally constituted, adjourned on November 14th, it had not been determined whether the plaintiff or defendant should be declared to be elected, and the plaintiff did not then know whether or not he would desire to contest the election, as he might by the subsequent proceedings be the person ‘ ‘declared duly elected”' yet it was his duty, in order to protect his rights, to initiate contest proceedings by serving his notice of contest within twenty days from the adjournment of such board, although the auditor might not have finally decided the election and declared the result until more than twenty days after the board had adjourned. We cannot accede to this proposition. The time within which the auditor must proceed to decide who shall be declared elected is not fixed or limited by law; and hence it is within his power to delay proceedings, if the construction of the law contended for by respondent is the true one, so as to compel a party awaiting his decision to commence contest proceedings, and thus present the anomaly of a party instituting and prosecuting a suit against an opposing candidate before it is determined whether he or his opponent is elected, or whether or not it will be necessary for him to initiate such a contest, and when the final proceedings of the auditor may result-in declaring him elected. Will the law require of one so situated that he serve a notice of contest when such contest may never become necessary, and when he is unable to determine whether or not he desires to make such a contest, or whether he or his competitor will be declared elected? It seems to us no such useless proceeding was intended by our legislature. As before stated, an elector is authorized to serve a notice of contest within twenty days after the canvass; but he cannot serve it until the person whose election he desires to contest is “declared duly elected.” A board adjourns, and, in case of a tie vote, the auditor, on the twenty-first day thereafter, decides and declares who is duly elected. While it is undetermined who is duly elected the elector can serve no notice of contest. Says the respondent to such elector, ‘ ‘The canvass was made more than than twenty days ago, hence your time for serving a notice has expired.” What becomes of the right of contest of the' elector? Is a construction of the statute that might result in thus depriving the elector of his right to contest permissible except in a case where the statute is so clear as to only admit of such construction? But in this case the statute is clear that an elector has twenty days after the result is declared by the auditor, and thus the canvass continues, as to him, until one of the persons who has the highest and equal number of votes is “declared duly elected.” If, then, the canvass continues as to him until the result is declared, must it not recive the same construction as to a candidate who claims the office? Will it be seriously claimed that-the term “canvass,” as applied to an elector, means one thing, but as applied to a candidate claiming the office it means an entirely different thing? That in the one case the canvass is made and concluded only when the result of the election is ascertained by the auditor arid the person “declared duly- elected, ” and in the other case when the canvassing board adjourns ? We think no such intention can be imputed to the law-makers. It is more reasonable, we think, to say that the legislature intended that no person having the right to consent should be required to serve a notice of contest until it shall be determined that his competitor had been elected, and so declared. Then his right to contest commences. Then he can properly proceed to institute his proceedings, and take the necessary steps to vindicate his rights. The views here expressed lead to the conclusion that the order of the circuit court should be reversed, and it is so ordered.

Bennett, J., concurs.