been opposed and contested by railroad managers. And now that the doctrine of uniformity has finally become unassailably established, should any court say that a carrier may still discriminate in the matter of rates, thus building up the business of its friends and ruining that of others, and yet the victim of the discrimination be remediless save by resort to the criminal laws, which in most cases would not save him from the disastrous consequences of the wrong against him, or by suit for damages after his business has been ruined, even then, perhaps, to be met with the contention that he has forfeited his right to relief by not bringing his action before such consequences resulted?

We hold that the modern common-law doctrine prohibits all discrimination in tolls as above declared, and that thereunder, and also by virtue of our statutes, the disfavored shipper has a right of action for damages, at least to the extent of the discrimination. No hardship upon the carrier is thus entailed. Compliance with the law and the statutes will avoid the consequences indicated. Order reversed.

PHILIP E. BROWN, J. The defendant, a fraternal association paying death benefits to its members, issued, in December, 1909, to Conrad Strand a benefit certificate undertaking to permit the plaintiff to participate in the mortuary fund of the order in the sum of $1,000, in the event that Conrad, while in good standing, should die from various designated causes. In order to become a member of the order, a registration fee of $1 was required, which was duly paid, and so to remain necessitated the payment of monthly assessments of 65 cents, and 50 cents for lodge dues during each quarter of a year, but at what time during the quarter the dues were payable was not prescribed. Certain assessments and dues were paid; but in the latter part of February, 1911, the defendant suspended Strand from membership in the society for alleged failure to pay the requisite assessments. Thereafter no further payments were made, and he was never reinstated. He died March 30, 1911. The defendant refused to pay under the certificate, as the plaintiff claims, without legal right, and this action to recover the amount stated followed. The cause was tried to a jury, who returned a verdict for the defendant. The court granted the plaintiff a new

REPUBLIC.

(Supreme Court of Minnesota. June 13, 1913.)

(Syllabus by the Court.)

1. PLEADING (8 177*)-ADMISSIONS-ACTION ON INSURANCE POLICY-REPLY.

The plaintiff's reply, in an action upon a death benefit certificate issued by the defendant, a fraternal aid association, considered, and held, when construed liberally, as required by Rev. Laws 1905, § 4143 and in connection with the complaint, not to admit the allegations of the answer as to the nonpayment of assessments.

[Ed. Note. For other cases, see Pleading, Cent. Dig. & 354, 355; Dec. Dig. § 177.*] 2. INSURANCE ($$ 817, 819*)-APPEAL AND ERROR ( 979*)-GRANTING NEW TRIALBURDEN OF PROOF-SUFFICIENCY OF EVIDENCE.

Trial court's action in setting aside a verdict for the defendant and granting a new trial sustained.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1999-2002, 2006, 2007; Dec. Dig. §§ 817, 819:* Appeal and Error, Cent. Dig. 3871-3873, 3877; Dec. Dig. § 979.*]

Appeal from District Court, Ramsey County; William Louis Kelly, Judge.

Action by Kasper Strand against the Loyal Americans of the Republic. Verdict for defendant. From an order granting a new trial, defendant appeals. Affirmed.

Durment, Moore & Sanborn, of St. Paul (S. W. Dixon, of Chicago, Ill., of counsel), for appellant. Ambrose Tighe, of St. Paul, for respondent.

not sustained by the evidence and was contrary to law. The defendant appealed.

[1] 1. The issues made by the pleadings have been contracted by admissions of counsel, leaving the questions involved within narrow limits. It is conceded by defendant that, if Strand was not in default in the payment of his assessments and dues at the time of his suspension, the verdict was wrong, and also that the alleged default consisted only in the failure to pay one assessment of 65 cents, prior to February 1, 1911, or, to state the proposition otherwise, that the aggregate of the assessments theretofore paid showed a shortage on the date stated in the amount stated. On plaintiff's part it is conceded that, if the fact be established as claimed in defendant's second concession, then his case is at an end. Obviously, then, if the dues for January, 1911, remained unpaid, the forfeiture was established; and defendant's first contention is that the reply admits their nonpayment.

of his death Conrad Strand was not in deThe complaint alleged that "at the time fault as to any of the requirements of said contract (the certificate) or of the rules and laws of the order, from time to time in force, and was in absolute good standing in the order." In response thereto the defendant set up in its answer the following: "The said Conrad Strand failed and neglected to pay his dues and assessments for the month of January, 1911, and thereupon and on February 1, 1911, he became and was suspended; and at no time prior to the death of

tain his good standing, in accordance with the conditions of the certificate, until February 1, 1911, and his suspension was unlawful, from which it would follow that the court was right in granting a new trial.

Defendant, however, insists that certain receipts for payments made in Strand's behalf, particularly one of date March 28, 1910, for 65 cents, purporting to be for the March assessment, and signed by Dow, and one of the same kind, of date April 29, 1910, for $1.65, purporting to be for the April assessment and for dues for the first six months of 1910, considered in connection with the whole of the evidence received at the trial, inevitably force the conclusion that the first payment made by Clark was for the purpose of paying the March and April assessments. The only basis for this claim rests upon the documentary evidence received, Dow's statements to the effect that he received the March assessment from Clark, and inferences drawn from the evidence; Dow's testimony in this connection, however, being flatly contradicted by Clark. How Dow could remit to the defendant the March assessment of the deceased prior to April 15th, from money collected from Clark, which, if the latter's testimony be true, was not paid by him to Dow until April 29th, is not explained by any testimony we have been able to find in the record.

No attempt has been made to summarize all of the testimony, or to state the evidence in full. Dow and Clark, however, were the most important witnesses, and we think that enough has been stated to indicate that the order appealed from cannot be disturbed.

We have been greatly aided in the examination of this case by the able, painstaking, and exhaustive memorandum of the trial court.

Order affirmed.

MOON v. HARRIS.

(Supreme Court of Minnesota. June 13, 1913.)

(Syllabus by the Court.)

In the 65 precincts of the county which were recounted, the contestee was given by the recount a majority of 15, against a majority of 23 upon the official returns. In the 2 precincts not recounted the contestant relied upon the official returns, which gave him a majority of 18. The court found the contestant elected It is held that the conby a majority of 3. testant properly relied upon the official returns of the precincts not counted, and the recount of the precincts recounted, and was not required to make a recount of all the precincts give, with the official returns, a result in his in the county, or of more than sufficient to favor; and, if the ballots and returns were kept with sufficient integrity to permit their use in evidence, the court was correct in its finding. [Ed. Note.-For other cases, see Elections, Cent. Dig. 88 306, 307; Dec. Dig. § 299.*] 4. ELECTIONS (§§ 295, 300*) - EVIDENCE (§ 174) CONTEST - BALLOTS AS EVIDENCE · QUESTION FOR COURT.

Whether the ballots and returns are so kept as to justify their use in evidence for the purpose of overturning the official canvass is a question of fact for the trial court; and upon an examination of the evidence it is held that the trial court properly received the ballots and returns in evidence.

[Ed. Note.-For other cases, see Elections. Cent. Dig. §§ 297-299, 308-313; Dec. Dig. $8 295, 300;* Evidence, Cent. Dig. §§ 561-564, 566-569; Dec. Dig. § 174.*]

5. ELECTIONS (§ 293*)-CONTEST-BALLOTS AS EVIDENCE.

The trial court was justified in holding that the contestant, who, as deputy auditor, had access to and was substantially in charge of the ballots, was not precluded because thereof from taking advantage of errors in the count. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 288-296; Dec. Dig. § 293.*]

Appeal from District Court, Beltrami County; C. W. Stanton, Judge.

Election contest by C. O. Moon against J. O. Harris. Judgment for contestant. From

A notice of appeal in an election contest for the office of register of deeds, which states that the ballots cast for the contestant were erroneously counted and returned for the con

testee in all of the precincts of the county, and that if correctly counted and returned they would have given contestant a plurality, sufficiently specifies "the points upon which the contest will be made," within Rev. Laws 1905, § 336, amended by Laws 1911, c. 59.

[Ed. Note. For other cases, see Elections, Cent. Dig. §§ 317-322; Dec. Dig. § 305;* Appeal and Error, Cent. Dig. § 142.]

firmed.

E. E. McDonald and P. J. Russell, both of Bemidji, for appellant. A. M. Crowell, of Bemidji, and C. C. McCarthy, of Grand Rap ids, for respondent.

eral election the contestant, C. O. Moon, and DIBELL, C. At the November, 1912, genthe contestee, J. O. Harris, were rival candidates for the office of register of deeds of Beltrami county. The contestee, Harris, was

The statute cited authorizes an amendment of the notice of appeal. There was no error in permitting the notice to be amended, so as to

board by a majority of 5. The contestant, Moon, appealed to the district court. Upon trial had, he was declared elected by a ma

jority of 3. The contestee appeals from the order denying his motion for a new trial.

[1] 1. The contestee attacks the sufficiency of the notice of appeal.

Section 336, R. L. 1905, as amended by Laws 1911, c. 59, requires the notice of appeal to the district court in an election contest to specify "the points upon which the contest will be made."

The notice of appeal stated that the contestant received a plurality of the votes cast for the office of register of deeds; that the ballots cast for the contestant were erroneously counted for the contestee in all of the precincts of the county, and were erroneously returned to the county auditor as cast for the contestee; and that the ballots thus erroneously counted and returned, if correctly counted and returned, would have given a result in contestant's favor.

These specifications, though shabbily framed, were sufficient to apprise the contestee of the claim made, and justified the court in ordering an inspection of the ballots. This court has never been averse to the allowance of a fair opportunity of ascertaining the actual result of an election. The important thing is that the truth be ascertained and the will of the voters be given effect; and the notice of appeal is intended as an aid, not a hindrance, to a fair investigation. We have not overlooked such cases as O'Gorman v. Richter, 31 Minn. 25, 16 N. W. 416, Soper v. Sibley County, 46 Minn. 274, 48 N. W. 1112, and Lee v. Kratka, 94 Minn. 524, 102 N. W. 1134.

[2] 2. The contestee claims error in the allowance of an amendment of the notice of appeal. The contestant was allowed, over the objection of the contestee, to amend his notice of appeal, by alleging that the ballots were erroneously counted and returned in all the precincts, except in the precinct of Frohn and the precinct of Grant Valley; the attack on the returns of these two precincts being thus withdrawn. The statute which provides for the notice of appeal permits its amendment.

The amendment was offered and allowed after it was shown that the ballots of these two precincts could not be found. There was no error in allowing the amendment. It was an unnecessary one. The returns of the precinct officers were prima facie evidence of the ballots cast, and the contestant, though he alleged errors in these two precincts making against himself, and in favor of the contestee, necessarily accepted the official returns, unless he or the contestee offered proof showing errors. An allegation by the contestant that there were errors unfavorable to him in the count, without proof, did not change the probative effect of the returns; and still less was it an admission of errors against the contestee in the returns.

was in error in finding that the contestant received a plurality of the votes cast.

There were 67 voting precincts in the county at the 1912 election. A recount of all the precincts except Frohn and Grant Valley was had.

According to the finding of the county canvassing board, based, of course, upon precinct returns, Moon received 1,458 votes and Harris 1,463, a majority of 5 for Harris.

Omitting the precinct returns for Frohn and Grant Valley, where Moon was given 52 votes and Harris 34, a majority of 18 for Moon, the official returns gave Moon 1,406 and Harris 1,429, a majority of 23 for Harris.

Upon a recount of all of the ballots, except in the precincts of Frohn and Grant Valley, where the ballots were missing, it was found that Moon had 1,411 votes and Harris 1,426, a majority of 15 for Harris.

If the official returns from Frohn and Grant Valley are added to the result of the recount, Moon received 1,463 votes and Harris 1,460, a majority of 3 for Moon. The court added the result of the recount of the 65 precincts to the official returns of the two precincts, and found Moon elected by a plurality of 3. If the returns and the result of the recount could be thus used, Moon was elected; if they could not be, Harris was elected.

The official returns are evidence of the votes cast. The presumption is that they correctly state the result of an accurate count of the ballots. The testimony of the precinct officers tended to show that the precinct returns were correctly made, and were at the time of the trial in the condition when made. This evidence was offered to repel the attack made upon their integrity, because of the careless method of their keeping after their return to the county auditor. The contestant, however, necessarily relied upon the legal presumption of their accuracy. There is no presumption that a recount would show a gain or loss either for Moon or for Harris. The presumption is to the contrary. Το make a successful contest it was necessary for Moon, by a recount of the ballots, to change the result declared by the canvassing board to a result in his favor. It was not necessary to recount every precinct of the county. It was necessary that he go far enough to show errors in the returns of certain precincts, which, when corrected and added to the presumptively correct official returns, gave him a plurality. And so when by a recount of the 65 precincts he reduced Harris' vote by 3, and increased his vote by 5, thus reducing the plurality of Harris on the recounted precincts to 15, and used the official returns of Grant Valley and Frohn, where he had a plurality of 18, he was elected by a plurality of 3.

This result was reached by the trial

tached to the keeping of the ballots and returns as required their exclusion; and this is a claim made by the contestee.

[4] 4. The contestee claims that the ballots and returns were so carelessly kept, and with so much opportunity of being tampered with, that they should not be received in evidence to overturn the finding of the county canvassing board.

The court found that the blue envelopes, containing the county ballots of the precincts of Frohn and Grant Valley, "were surreptitiously removed from the county auditor's vault by sonie one whose identity the evidence does not disclose." They disappeared during the progress of the recount.

The

There were a number of irregularities in the keeping of the ballots, in the way of stringing them, and in sealing them, and in returning them to the county auditor, and in keeping them after they were returned. Some seals were missing from the envelopes, or were broken, or were mutilated. court specifically found that "the ballots were, when recounted by the inspectors, and when received in evidence herein, in the same condition as when counted by the judges of election." It was specifically found that the votes cast in the precincts of Frohn and Grant Valley were as shown in the official returns. Upon the recount few errors were found. In only 12 of the 65 precincts recounted were errors discovered. In Tenstrike there was an error of 5 due to a mistake in the tally sheet. In none of the other precincts was there an error greater than a gain or loss of 1 for either candidate. The difference between the total vote shown by the returns and upon the recount was only 2. In referring to the ballots the trial court, in its memorandum, said: “I am fully satisfied that they are intact and genuine, and that they are the identical ballots cast by the voters, and are now in the same condition in every respect as when voted. This conclusion is based upon all of the testimony of the case, including that of two of the inspectors, as well as upon my own careful inspection of the envelopes and ballots."

The books are replete with cases stating, in one form or another, that the ballots are the primary or the best evidence in a contest of an election, but that to overcome the result of an official canvass by a resort to the ballots it must be shown that they are intact and genuine and have not been tampered with. Newton v. Newell, 26 Minn. 529, 6 N. W. 346; Stemper v. Higgins, 38 Minn. 222, 37 N. W. 95; Caldwell v. McElvain, 184 Ill. 552, 56 N. E. 1012; Hartman v. Young, 17 Or. 150, 20 Pac. 17, 2 L. R. A. 596, 11 Am. St. Rep. 787; Albert v. Twohig, 35 Neb. 563, 53 N. W. 582.

The question whether the ballots have been so preserved that they may be safely used to defeat the result shown by the returns is a question of fact, the decision of which is with the trial court. The court found that the ballots and the returns, when offered in evidence, were in their original condition. It was in a better position than we can be for making a correct finding, and we hold that it was properly made.

[5] 5. Allied to the question just discussed is the contestee's claim that Moon, because he had access to the ballots, and an opportunity to tamper with them, should not be permitted to make use of them in overturning the finding of the county canvassing board.

Moon was a deputy auditor. He was substantially in custody of the ballots as they were returned from the precincts. He, more than the auditor, seems to have had to do with them. Propriety should have kept him away from them. He was openly in charge.

The trial court considered the claim now made, and in connection with it cited Murphy v. Lentz, 131 Iowa, 328, 108 N. W. 530, and Coglan v. Beard, 67 Cal. 303, 7 Pac. 738. It found that there had been no tampering with the ballots or the returns, and that as offered in evidence they were as when returned to the county auditor.

We are of the opinion that Moon should not be prevented from making use of the ballots and returns for the purposes of his contest. It is a matter of public concern, and not merely the interest of contesting aspirants for office, that the will of the voters be given effect. The statute which gives a right of contest permits any elector to institute one, regardless of the wishes of the candidate defeated on the face of the returns, and evinces a purpose, as does the trend of our decisions, to give effect to the actual vote cast.

It is likely true that in some jurisdictions ballots kept as these were would not be allowed in evidence to overturn the result of an official canvass, and that a contestant as close to the ballots as Moon was would not be permitted to overturn the official count by their use. We think that under the finding the trial court was right in receiving them.

The election was very close. A slight change in the two uncounted precincts would give the election to Harris; but the presumption is against such change. A slight tampering with the ballots might bring the same result; but the finding is that there was no tampering. The finding of the trial court that Moon was elected by a majority of 3 is supported by the evidence.

Order affirmed.