1 Or. 123 | Or. | 1854
Lead Opinion
Kent says that no poll-book was sent by the judges of the election in Cow Creek precinct to the county auditor, as directed in section 28, and, therefore, the return from said precinct should be wholly rejected.
Assuming the premises to be true, the legal conclusion drawn therefrom does not follow. County canvassers are only required to decide who has received “ the highest number of votes,” for any office to be filled by an election of the people, and no poll-book is necessary to enable them to make that decision. Clerks and judges of election in each precinct of a county are compelled to send to the county auditor a certificate, to which the one from Cow Creek conforms in substance, and these certificates together constitute the evidence upon which the county board determine the result of the election for that county. Had the poll-book of Cow Creek precinct been returned with the certificate, as the statute contemplates, such poll-book would only have shown that A., B. and C. voted at the election, and not for whom
To sacrifice the end of an enterprise, when attained, for mistakes in the mode of precedufe, is to throw away the kernel and preserve the shell. Times and places for holding popular elections are appointed by law, to enable freemen to make choice of persons to fill the offices of the government.
"When, therefore, the qualified voters of an election district, at the time and place fixed by law, deliver their ballots to a legal depositary, the choice of the people of that district is made. Whoever has received a majority of the legal votes cast, is as much elected at the closing of the polls, as he possibly can be by means of that election. The choice of the voters has become a perfect fixed fact. To make proof of that fact is all that remains to be done. Counting the votes and making the returns are no part of the election, but the mere steps of the agents of those who have voted, to make known the result. Now, it must be evident that it is quite immaterial to the electors and the elected, whose rights are involved in the transaction, in what way the choice of the
Suppose there had been no return whatever from Cow Creek precinct, but Day had received the certificate of election, and Kent had then contested, Day would be allowed to prove by parol that he had received twenty-three votes in said precinct which had not been counted for him, and thus sustain his right to the office, for his rights would not depend upon the acts or omissions of judges and clerks, but upon the votes of the people. Is Day worse off, with an imperfect return, than he would be with no return at all 2 Legal distinctions have been confounded in what has been said for Kent in this case, for it has been contended that the doctrine here laid down would make the choice of a person for office, by any loose assemblage of men, an election.
Voting implies something more than the mere expression of an elector’s will. "When a man votes he must express his will viva voce or by ballot, at a time and place fixed by law, and to a person having color of right to receive such expression, and these are all necessary and essential parts of the act of voting. To vote, an elector must do all that the law requires him to do in the performance of the act, and then he has voted, and nothing can afterwards be done by others to deprive him of the benefit and effect of that sovereign act. Judges and clerks may prove ignorant or corrupt, may return poll-books or not, as they please; but the just judgment of the
Judgment reversed.
Dissenting Opinion
dissented, by the following opinion:
The determination of the question, who is legally entitled to the certificate of election in this case, is a matter of secondary moment. However decided, the effect in this particular instance will be but transitory, and cannot extend beyond the existing term of the office about which the controversy arises. A majority of the court have decided the question in favor of the plaintiff in error. Although I differ from the majority in their reasoning and conclusions, from beginning to end, yet, if the .decision in its consequences ended with this case, I could be content to dissent in silence. But the doctrine now sought to be established, and armed with the authority of stare deeisis, extends in its consequences beyond this occasion into the future. The principles involved in this case are of vital importance to the well-being and peace of a community like ours. The genius of our institutions, and the tendency of the age, combine to make the polls the final arbiter of all questions involving a choice of public
Experience has shown that, in times of public excitement and desperate party strife, all manner of nefarious devices and expedients are frequently resorted to for the purpose of improperly affecting the result of the election. To preserve, then, unimpaired the authority and usefulness of the polls,, must be among the most important duties of the law-making power. Accordingly, we find that the legislature of the various States, as well as that of our own territory, have from time to time, as experience demonstrated their necessity, enacted laws intended and calculated to guard the purity and secure the correctness of the polls, by decreasing, as far as possible, the temptations and opportunities for fraud and mistake.
These laws are two-fold in their character—preventive and remedial. The remedial are such as provide a remedy or mode of proceeding, by which the result of the election, in any particular, may be scrutinized or contested, whenever it is conceived that it is vitiated by fraud or illegality; but by far the mpst important and useful of those regulations are the preventive. Without them, an election would be unworthy of the name, and degenerate from a law-appointed and law-regulated proceeding into a mere voluntary assemblage, where the right of the elector, the manner and evidence' of the exercise of that right, would be governed and protected by no more certain and just rule than the caprice of the hour, or the interested and uncertain passions of the greater number.
Upon this subject the Code of Oregon, after providing for the public notice of elections, the number and manner of selecting judges and clerks, substantially enacts, that the clerk of the county commissioners shall furnish one of the judges of the election with two poll-books, at least five days
But the law founded upon experience presumes that such devices will be practiced, and the defendant in error is entitled to have that security against such contingencies that the law has provided; that is, a comparison of the poll-list (kept name by name publicly, as the election progresses) with the ballots before the votes were counted. If a fraud has been practiced in this particular, (and if it was, the judges and clerks would not likely have been aware of it, for they had no means of detection,) the defendant in error would be almost powerless to detect and expose it. It could hot be done without an exact knowledge of the number of voters. How is that to be obtained, when no record was kept of them ? "Whose business is it to stand by and keep count, and remember it, and if it were any one’s, whose memory could be relied upon with any degree of certainty for such information ? especially in a precinct that would cast a thousand votes, an event not uncommon in densely populated neighborhoods. But to go further. Suppose it were true that twenty-three ballots were given at Cow Creek for the plaintiff in error, ten, or any number of them less than twenty-three, may have been given by persons not electors of the county.
The judges and clerks are not bound to know that every man who votes is qualified, nor is it possible that they can. But the law, founded upon experience, presumes that illegal votes may be thrown, and therefore it has provided that a poll-book be kept, the simple inspection of which will determine who did vote at a given election. The leading fact being known without doubt, a party who has been injured by illegal votes being cast against him, is enabled to show the fact. Besides, to vote illegally, knowing the same, is a criminal offence, and therefore it is important that a poll-book be kept.
The first step to be taken in the matter is to ascertain who did vote; this, by the security which the law has provided for him, the defendant is entitled to know from the poll-book; but by the decision of a majority of the court, it depends upon whether the judges of election see proper to keep a poll-book or not. If, through ignorance, negligence or corruption, they omit to keep a poll-book and return it, the burden of their ignorance or corruption must fall upon him. If they certify that A. B. had twenty-three votes, or one thousand, he must find out who gave them the best way he can; and if he cannot, as in most instances he could not, of course he is practically concluded from showing their illegality, although, in point of fact, one-half of them might have been so.
It is said, however, that the court is to disregard “ technicalities ” in the decision of this case; true, so the Code declares, but in the same sentence, by a particular expression, is defined in what sense the word technicalities is here used. The whole expression is, “not regarding technicalities or errors in spelling the name of any candidate for such office.” To my mind the inference is absurd, that because the law commands the court to disregard such “technicalities” as error in the spelling of a candidate’s name, that therefore the judges and clerks need not be sworn, that therefore there need be no list of the voters’ names, that therefore there need be no comparison of the poll-lists and the ballots before ■counting the votes; in short, that therefore all the security and guard which the law has thrown around the poll is merely so much parliamentary advice to the judges and clerks of election, which, whether they follow or not, shall make no sort of difference with the result.
Again, it is said that the court is to regard the will of the majority as indicated by their votes. The argument which •has been drawn from this partial statement of the law, if it proves any thing, proves too much. That will of the ma
For instance: the Code directs that the clerk of the county commissioners shall furnish the judges of election with two
It is said that although these provisions of the law are di
To be certain, then, of any security from fraud or mistake, or to have the means of its detection, if made, there must be some limit to what is directory, something must be imperative. In Eneas s’ Case, page 581, Parsons’ Select Equity Oases, Judge King says: “the manner of receiving and recording votes is also prescribed, and the procedure in this respect demanded by the law is most important to the prevention of fraud.” Again, he says of the same duty, “ this direction is among the vital provisions of the law, which no inspector, disposed faithfully to execute his duty, ought to omit, and the absence of which must tend to make the conduct of the election suspicious, if not absolutely illegal.”