Carr v. Wakonda Independent Consolidated School District No. 1

182 N.W. 626, 44 S.D. 103, 1921 S.D. LEXIS 53

• Court: South Dakota Supreme Court
• Decided: April 12, 1921
• Docket: File No. 4734
• Status: Published

Opinion

OATES, J.

This election contest is before us on rehearing. See same title, 178 N. W. 881, and 179 N. W. 30. Pursuant to the directions given in the opinion last cited, three questions are presented for determination.

[1,2] The first question concerns the publication of a legal notice on a holiday other than Sunday . Section 7604, Rev. Code 1919, which relates to the giving of notice of elections upon the question of issuing bonds, requires that the notice shall be published once in each week for four successive weeks next prior to the date of the election. The notice in question was publishd five times, viz. on Thursday, December 25, 1919, January 1, 8, 15, and 23, 1920'. It is therefore contended that no legal notice of the election was given. No question is raised as to the publication of the notices, except that the first two publications were made on legal holidays. iSection 21, Rev. Code 1919, which defines holidays and includes the first two of the above-named dates, further says:

“Aside from Sundays, the observance of which is provided for in title 4, no public business, except in case of necessity, shall be transacted on any one of said days, and no legal process in civil cases shall be served on any of said days.”

It is not, and could not successfully be, contended that the publication of a notice of election constitutes the service of- legal process. The question then arises whether the publication of this notice is the transaction of public business within the meaning of that section. In so far as the school district is concerned, there was no transaction of business by it on those days. Its business was transacted when it gave-the notice to the publisher for publication, and the publication amounted merely to the giving of notice that on the day of election certain public business would be transacted. In so far as the newspaper publisher is concerned, is the publishing of his paper the transaction of public business? We think the word “public,” in this section, is to be contrasted with the word “private,” and that the publishing of a newspaper is private business, within the meaning of that section. Mack v. Costello, 32 S. D. 511, 143 N. W. 950, Ann. Cas. 1916A, 384.

[3] The second question relates to the matter of stamping the ballots. None of the ballots cast at the election were stamped “Official Ballot.” It is the contention of appellant that, because of section 7604, 7558, and 7559, Rev. Code 1919, the provisions of section 7278 became applicable, which deciare that any ballot which is not indorsed by the official stamp shall be void and not counted. Respondent contends that the only provision in the statutes for the furnishing of a rubber stamp to election judges which contains the words “Official Ballot” is section J2-áp, which relates to general elections, wherein the duty of furnishing the stamp and the ballots rests upon the county auditor. It is clear to us that the county auditor has no such duty under school elections, and that school districts are not election precincts within the meaning of said section 7242. No officer of this state is expressly charged with the duty of providing such official stamps for election precincts except the county auditor. The duties of the clerk of independent school districts with reference to school elections are found in section 755®, Rev. Code 1919 viz. (italics ours) :

“The clerk of the board shall provide proper ballots similar in form to those authorized by law for municipal elections, except as to party affiliation, on which shall be printed the names of the candidates for the respective offices, each being given a position for each office in the order of the priority of the filing ‘of their nominating certificates. The clerk shall provide the voting booths required by lawi in each polling place and such sup plies, poll books and stationery as may be-necessary.”

No reference to such rubber stamlps is found in such section, or in any section of article 3, consisting of sections 75152-7561, Rev. 'Code 1919, which article relates to the conduct of elections in independent school districts. It is only by construing the italicized words, “such supplies” and “as may be necessary,” as an imperative requirement that such stamps be furnished that any duty on the part of the clerk of the board of education to furnish them may be found. If it were the intention of the Legislature to impose such duty on the clerk of independent districts, we think it would have manifested such intent in more particular and explicit language than that contained in the italicized portions of section 7558, supra. Moreover, section 7559, Rev. 'Code 1919 (also a part of said article 3), says:

“■Such election shall be conducted in accordance with the general election laws of this state, so far as applicable and not inconsistent wlith the provisions of this article.”

When it did not create a duty on the part of any officer to furnish such rubber stamps for school elections, -we think it cannot be said that the Legislature intended that requirement to be applicable to school elections. It is therefore clear to us that the provision of section 7278, Rev. Code 1919, 'that unstamped ballots, “shall be void and not be counted” is not applicable to school elections.

[4] The last question raised relates to the form of the printed ballot. At the election all of the ballots furnished and used contained the words “Yes” and “No,” with their respective circles, at the right of the proposition submitted. Appellant contends that these words and; circles should have been printed at the left of the proposition submitted, by reason of the provisions of sections 7558, 7559, and 6327, Rev. 'Code 1919. Respondent contends that section 7605, Rev. Code 1919, is the section applicable, and that under that section the words “Yes” and “No” are just as much “opposite” the proposition, if printed on the right thereof, as if printed on the left. Under the decision of. this court in Olson v. City of Lemmon, 33 S. D. 380, 146 N. W. 592, we must, and do, ‘hold that, even if the form of the ballots used was erroneous, it was a mlere error of form, and not of substance.

The judgment and order denying new trial are affirmed.