101 P. 153 | Mont. | 1909
Lead Opinion
delivered the opinion of the court.
At the general election held in November, 1908, Lorin T. Jones was the Republican candidate, and Nat. G. Carwile the Democratic candidate, for the office of clerk of the district court of Yellowstone county. The votes were counted, returned and canvassed, and from the canvass it appeared that Jones had received 1,584 votes, and Carwile 1,574 votes. A certificate of election was thereupon issued to Jones, and Carwile contested the election. Upon the trial of the contest the district court found that Carwile had received 1,577 votes, while Jones had received 1,575 votes. From the judgment declaring Carwile elected, and annulling the certificate issued to Jones, the defendant Jones has appealed. Under the provisions of the Act of the Tenth Legislative Assembly, approved February 25, 1907 (Laws 1907, p. 66), the exceptions of each party are presented for review.
1. Plaintiff’s Exhibits 4, 5, 9, 10, 12, cmd Defendant’s Exhibit L. The plaintiff predicates error upon the ruling of the trial court in refusing to count for him each of six ballots. In three of these (Exhibits 4, 5, and 9) the cross is placed after the name of Carwile, and entirely without the Democratic column. In Exhibit 10 perpendicular lines are drawn through the names in the Republican column, but there is not any cross placed before the name of Carwile. In Exhibit 12 the name of Carwile is written in the Socialist column, but there is not any
2. Defendant’s Exhibit Z-l. For the same reason defendant’s Exhibit Z-l was properly excluded. The cross was placed to the right of Jones’ name and without the Republican column.
3. Defendant’s Exhibits H, T, U, Z-2. Error is predicated upon the refusal of the trial court to count for Jones each of four ballots, marked substantially as follows:
We think the court’s ruling correct. The Political Code of 1895, in section 1361, made provision for voting a straight party ticket, and also provided that an elector might vote a mixed ticket by placing “a cross opposite the name of every candidate,” etc., for whom he intended to vote. This section was amended in 1901 (Laws 1901, p. 117) by abolishing the circle at the head of the party column, and by providing that the elector “shall prepare his ballot by marking an ‘X’ before the name of the person or persons for whom he intends to vote.” The section as thus amended was further amended in 1907
4. Defendant’s Exhibit V. The court also refused to count for Jones a ballot marked by crossing out all the names in the Democratic and Socialist columns, and on which there was not any cross in the square before the name of Jones. For the reasons given above this ruling of the trial court was correct. While the intention of the voter is generally a very material consideration, still, in order to have his ballot counted, he must express his intention substantially as indicated by the statute. (McKittrick v. Pardee, supra.) In Dickerman v. Gelsthorpe, 19 Mont. 249, 47 Pac. 999, this court said.: “The distinctive feature of the Australian ballot system is the use of the mark in connection with the names of the candidates and questions to be voted on; and, of course, unless the mark is employed to indicate the choice of the voter in his ballot, the ballot he casts is a nullity, however clearly that choice may otherwise be expressed.”
6. Defendant’s Exhibits I, F, Y. The court counted for Jones three ballots, in each of which the cross mark is placed after Jones’ name, but within the Republican column. In each of these instances we think the court erred. It cannot be said that the voter substantially complied with the law which requires him to place the cross “in the square before the name.” This is the holding of the courts generally in construing stat
7. Defendant’s Exhibit J. The court counted for Jones a ballot marked substantially as follows:
There is in fact a crossing of two lines within the square before the name of Jones. An examination of the entire ballot discloses that in most instances the elector made fairly good cross marks, but in nearly every instance there is manifest the difficulty under which the voter labored. His pencil marks are retraced, additional lines are made, the figures are crude, and the entire ballot shows that he was embarrassed by age, infirmity, insufficient light in the booth, or unfamiliarity with the use of a pencil. We do not think the legislature ever meant to require that a perfect letter “X,” inclosed in quotation marks, should be the only means by which an elector can express his choice. Any mark which can be said to be a cross mark will answer. In the absence of anything to indicate a purpose on the part of the elector to identify his ballot by the use of a third line within the square, this defect ought not to vitiate the ballot. In Parker v. Orr, above, similar defects are illustrated in the opinion of the court, and they are there held not to render the ballot invalid. (See, also, 7 Current Law, 1245.) There was not any error in the trial court’s ruling.
8. Defendant’s Exhibit L. The court counted for Jones the ballot, defendant’s Exhibit L above, and this action is claimed to be erroneous. As said above, a cross is placed before the name of every candidate in the Republican and Socialist columns, and the names in the Prohibition and Independence columns are crossed out by various marks. In our judgment, this ballot falls within the class mentioned in section 575, Revised Codes. That section provides that “any ballot * *' * from which it is impossible to determine the elector’s choice is void and must not be counted. ’ ’ The mere fact that the Socialists did not have any candidate for clerk of the district court does not militate against this position. We think the court
9. Defendant’s Exhibit M. The court refused to count for Jones a ballot, perfect in form, and upon which the voter indicated his preference for Jones for clerk of the court, but from the ballot the stub is not detached, and since the stub bears the number corresponding to the number of a particular voter in precinct 14, of course the identity of the voter could be ascertained. But we think the court erred in disfranchising this voter for the failure, on the part of the election officer, to do his duty. It is a rule of well-nigh universal application “that one entitled to vote shall not be deprived of his privilege by action of the authorities.” (Cooley’s Constitutional Limitations, 775; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; McCrary on Elections, p. 144.) In Farnham v. Boland, 134 Cal. 151, 66 Pac. 200, the court said: “It is claimed that the trial court should have rejected ballots which had the stub attached to them — a stub that should have remained in the book from which the ballots were taken. We hold that these ballots were properly counted, and likewise those were properly counted which the officers of- election placed in the ballot-box without first tearing therefrom the numbers attached. It is quite apparent that these violations of the law arose from the carelessness of the election officers. Such carelessness or maleonduct upon the part of those officers may render them liable to severe penalties, but that is all. The law as to identifying marks refers to marks made by the voter, and it is only marks made by him that demand the rejection of the ballot. After citing many eases to the point this court said, in People v. Prewett, 124 Cal. 7, 56 Pac. 621: ‘The principle underlying these decisions is that the rights of the voters should not be prejudiced by the errors or wrongful acts of the officers of election, unless it shall appear that a fair election and an honest count were thereby prevented.’ ” (See, also, Bates v. Crumbaugh, 114 Ky. 447, 71 S. W. 75; Lynip v. Buckner, 22 Nev. 426, 41 Pac. 762, 30 L. R. A. 354; Moyer v. Van De Vanter, 12 Wash. 377, 50 Am. St. Rep.
10. Defendant’s Exhibits K-l and K-2. In precinct No. 13 there was found in the ballot-box a ballot badly torn, so that there are two separate portions of the ballot, and there is missing, from near the middle, a portion containing the names of two candidates in each party column. The portion bearing the names of Jones and Carwile does not bear the official stamp; and, although the ballot was marked as for Jones, the trial court refused to count it for him. In this we think the court erred. Of course, if the ballot was mutilated by the voter, it ought not to be counted; for provision is made in the statute for supplying a voter, with a new ballot in the event he has mutilated the one first delivered to him. But there is not anything here to indicate that this ballot was torn by the voter. In the absence of such showing the presumption is always in favor of the voter, and it would be presumed that the ballot was torn after it left the voter’s hands. This is the general rule. But in this instance we are not left to rely upon presumptions. When the two portions of the ballot are folded together, as they were by the voter, the evidence is so convincing as to be said to amount to a demonstration that the ballot was torn by the ballot judge in detaching the stub, and for this the elector cannot be made to suffer.
11. Residence. From the total vote returned in favor of Jones the trial court deducted 4, on account of ballots cast for Jones in Broadview precinct by former residents of Iowa: Waterman, Leonard, Claude Barkhuff, and William Barkhuff. George A. Waterman came from Iowa to Yellowstone county in July, 1907, and engaged in the real estate business, and in
"In view of the facts appearing that the family of each of these men remained in Iowa until after November, 1907, we must start our inquiry by the application of rule 8 of section 481 above: “The place where a man’s family resides is presumed to be his place of residence.” This is in reality a rule of evidence; and, when the plaintiff showed that the family of each of these four men remained in Iowa until after November, 1907, he made out a prima facie ease against the right of each to vote, and the burden was east upon the defendant to show a state of facts which brought the men within the definition of a legal voter of Montana. We may derive assistance, in attempting to solve this problem, by reversing the case somewhat, and assume that these men, having done the things which they did in Montana in the summer of 1907, had, upon their return to Iowa, sought to vote there. Would they have been held to be legal voters there? We think not. And we think our answer is the correct interpretation of the court’s decision in Vanderpoel v. O’Hanlon, 53 Iowa, 246, 36 Am. Rep. 216, 5 N. W. 119. At the time that ease was decided Iowa does not seem to have had a statute similar to our rule 2 of section 481 above, and the fact that the plaintiff was a student attending college .was not
A case somewhat similar to this is presented in State ex rel. Smith v. Deniston, 46 Kan. 359, 26 Pac. 742. Stringer, who had been a resident elector in Kansas, went to Oklahoma, and on June 8, 1889, filed on a homestead claim, broke some ground,
Rule 9 of section 481 further provides: “A change of residence can only be made by the act or removal joined with the intent to remain in another place.” "While the word “or” appears in the Code, the word “of” is evidently intended. The inquiry immediately arises: When did these men remove from Iowa to Montana? Our judgment, based upon reason and the adjudications, is that their coming to Montana in the summer of 1907, coupled with the selection of new homes here, constituted the removal mentioned in the statute. The word “removal” means the act of making a change in place; and, as applied to these men, it means the act of changing their former homes in Iowa to their new homes in Montana. Waterman did not file on a homestead in 1907, but he did engage in business in Yellowstone county, and formed the intention of making that county his home.
After all, in prescribing the one year’s residence as a qualification for the voter, our Constitution and statutes look to two primary objects, (1) familiarizing the elector with the conditions and needs of his new home, and with the qualifications of candidates; and (2) preventing the colonization of illegal voters.
The judgment is reversed and the cause is remanded to the district court, with directions to vacate the judgment entered, and to enter a judgment according to the facts and conclusions herein announced. Each party will pay his own costs.
Reversed cmd remanded.
Concurrence Opinion
I concur in all that is said in the foregoing opinion, with this exception: I believe that the district court was correct in counting the ballot marked “Exhibit L,” for Mr. Jones. The voter complied literally with the statute in marking this ballot; he marked an “X” in the square before the name of Mr. Jones. This vote for Jones was not nullified or offset by the “X” placed before the blank space in the Socialist column, because that party had no candidate for the office of clerk of the district court. My opinion is that, when the voter complies literally with the statute, as a matter of law his vote is thereby cast, and the court has no power to examine the remainder of the ballot for the purpose of finding out what his intention may have been, or to inquire into his intention at all. (See People v. Seaman, 5 Denio (N. Y.), 409-412, Beardstown v. Virginia, 76 Ill. 34-48, and People v. Saxton, 22 N. Y. 309, 78 Am. Dec. 191.) To me it seems a corollary of the principle upon which Exhibits H, T, U, and Z-2 are rejected that Exhibit L should be counted. Those exhibits bear palpable
I think, therefore, that the judgment of the district court should be reversed and the cause remanded, with instructions to enter judgment declaring the appellant to be entitled to the office in question.