Olson v. City of Lemmon

146 N.W. 592, 33 S.D. 380, 1914 S.D. LEXIS 46

• Court: South Dakota Supreme Court
• Decided: March 21, 1914
• Status: Published

Opinion

McCOY, J.

This is a contest involving the legality of an election submitting to a vote the question of the sale at retail of intoxicating liquors. There is but one question presented for consideration, laind that relates to the form of ballot used at such election. The following form- of ballot was used:

Shall intoxicating liquors be sold at retail . Yes I — | within city of Lemmon, S. D., during — ' the coming year? ' . No | |

At saiid election there were 176 bailóte marked with a cross in the square at the right.-of the word “Yes,” and 71 ballots marked with a cross in the square after -the word “No.” The statute provides (section 2856, Pol. Code, as amended by chapter 254, Laws off 1913) that the question shall be submitted upon a -separate ballot upon whidi there shall be printed the words, “Shall -intoxicating liquors - be -sold at retail ?” with a square or circle at the left of each of such words “Yes” and “No,” and any voter in favor of such sale shall mark in the square or circle at the left of .the world “Yes” with a cross, and any voter "opposed to such sale shall mark in the square or circle at the left of the word “No” with a cross. It is the contention of tire contestants, the appellants, that iby reason of the fact that the printed ballot used at such election had the words “Yes” and “No” after the words, “Shall intoxicating- liquors be sold at retail?” instead of before such words, and with the squares at the right of the words “Yes” and “No” instead of at the left, the election was void because the question to be voted upon was not submitted in the manner prescribed. by law. It will be observed that the variation from the statute in the 'ballot used is purely a matter of form. All the substance of the form required by ¡the statute appears on the face of this ballot, but not in the position .prescribed; the variation being- that the words “Yes” and “No,” and the squares, are printed after instead of before the question submitted to a vote, thereby resolving the variation down to a matter of purely formal position of portions of the substance required to appear on the face of the ballot. Good and substantial reasons exist why the question of the sale of intoxicating liquors should be submitted on a separate ballot, and there are substantial reasons why the cross should be placed in the circle of square; but we know of no possible reason why just as free and fair an election might not be had with the words “Yes” and “No,” and the squares at the right of the question submitted as might be h'ad with said words “Yes” and “No,” and the squares, at the left of the submitted question. The irregularity here under consideration was due wholly to1 the city official, whose ■duty it was to procure the ballots, and was in no manner due to any act of any individual elector.

[1] It seems to be the general rule that votes of innocent electors are not invalidated by mere irregularities on the part of public officers charged with the duty of preparing- and procuring- official ballots, where such irregularities have not prevented a free and fair popular vote, or where the substance of no essential requirement of the law has been violated, unless the Legislature has expressly so declared. Tuntland v. Noble, 30 S. D. 145, 138 N. W. 291.

[2] We are of the view that the variation in the form of the ballot used was a mere formal irregularity, and that no substantial or essential requirement of the law was thereby violated. We therefore hold that the election in question was valid.

The judgment appealed from is affirmed.