19 Mont. 249 | Mont. | 1897
Counsel for respondent construe section 1361 in connection with section 1354 of the Political Code, as follows :
‘ ‘How to Prepare Ballots. The law does not allow a voter in any case to erase any names on his ballot. The law requires voting to be by the X-mark. First, on receipt of his ballot, the elector must forthwith and alone retire to one of the compartments, and prepare his ballot as follows :
“How to Vote a Straight Ticket. (1)' If the voter shall desire to vote a straight party ticket, he may do so by making a cross in the circle at the head of the list representing his political party. No other marks are necessary in such a case. Or (2) he may omit the cross in the circle at the head of the ticket, and make a cross opposite the name of each and every person on his party list for whom he desires to vote.
“How to Vote a Mixed Ticket. Omit the cross in the circle at the head of any list, and make a cross opposite the name of each and every person on any list for whom the voter desires to vote.
The foregoing interpretation of the manner in which a voter should prepare the form of his ballot under said sections 1854 and 1361 is substantially correct. It is insisted, however, in behalf of respondent, that the provisions of section 1361 as to the manner in which a voter shall mark his ballot are mandatory, and that section 1403 does not justify or contemplate any other construction. Counsel for respondent ask, “What was the true purpose of section 1403? ” and, answering, say : “It was this : When a voter has made an honest attempt to comply with the law, and has gone far enough to show his intention to comply with the law, in marking his ballot, then the aid of section 1403 may be invoked; as, for example, when the voter attempts to make a cross, and makes not a perfect one, * * * and when the voter does not get his cross directly opposite the name of the candidate, but a little above or below. * * * An intent expressed in a way not authorized by the law is not expressed at all. * * * Section 1408 does not impose any additional duty upon judges of election or courts. If that section was entirely stricken from the statute books, the same duty rests upon those officers of the law (judges of election). It would still be their duty to count any part of the ballot which expresses the intention of the voter in the way and manner the law directs it to be expressed, and no less a duty to refuse to count it when such intention is not so expressed. ’ ’
All this line of argument is controverted by counsel for ap
It is a general rule that election laws must be liberally construed. This court, in Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80, (on page 57, 16 Mont., and page 85, 40 Pac.,) announces that “in the construction of election laws the whole tendency of American authority is towards liberality, to the end of sustaining the honest choice of the electors. ” The reason for this rule is that the paramount and ultimate object of all election laws under our system of government is to obtain an honest and fair expression from the voters upon all questions submitted to them. Underlying the Australian ballot system — embodied in the present election laws of this state— is the same principle. This new system was adopted because it was considered an improvement as to details on the old system adhered to in the preceding election laws of the territory. The primary object of both systems was to obtain an expression of the will of the people. The new system furnishes the latest and most modern safeguards evolved from practical experience to secure the individual volition and independence of the voter, and prevent fraud and coercion in any form. It is apparent that any form of voting prescribed by election statutes, while a natural and necessary incident, is still only an incident to the main object in the enactment of the same. In considering the details of any and all means by which an end is to be accomplished, the end itself must never be overlooked. Hence, it is our duty in this controversy — if we can, under the law — to count all ballots honestly cast; for, if the voter substantially complies with the prescribed statutory method for preparing and casting his ballot, the main purpose of the election law is complied with.
The distinctive feature of the Australian ballot system is the use of the mark in connection with the names of the candi
In State v. Russell, 34 Neb. 116, 51 N. W. 465, the question of when statutory provisions as to the manner of voting are mandatory and when directory, is clearly discussed. The opinion by Post, J., quotes first section 190 of the last edition of McCrary on the Law of Elections. That section is as follows : ' ‘If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all consideration touching its policy or impolicy must be addressed to the legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done within a particular time, or in a particular manner and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election. ’ ’
Section 448 of Paine on Elections is also quoted. The opinion then states : ‘ ‘The view expressed by these authors has the support of the great majority of cases in this country and
In a recent opinion of the New York Court of Appeals (People v. Wood, 42 N. E. 536) Andrews, C. J., says : “The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly-qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstruction to make the right of voting insecure and difficult. ’ ’
Wigmore on Australian Ballot System (2d Ed. p. 193) says: “Whenever our statutes do not expressly declare that particular informalities avoid the ballot, it would seem best to
Counsel for respondent urge that the previsions of section 1361 are so clear and plain that they cannot be misunderstood. We cannot agree with this statement. They are not so free from ambiguity that even an intelligent voter may not readily be misled by them. Nowhere in the election statutes of ■ this state is there any express declaration that the said provisions of section 1361 are mandatory. The following cases have been cited as holding that 1 £the provisions of the statute as to voting are mandatory: ” Taylor v. Bleakley (Kan. Sup.) 39 Pac. 1045; Lay v. Parsons (Cal.) 38 Pac. 447; Parvin v. Wimberg (Ind. Sup.) 30 N. E. 790. The Kansas decision, supra, was rendered under an election statute which directly declared that a vote not marked in the manner prescribed should not be counted. The California opinion, above, enunciates the doctrine more by way of dictum than decision. In the Indiana case, supra, the court cites as one of the reasons for its decision a section of the state’s statutes which declared that when a stamp was placed upon a ballot so as not to touch 'a square thereon, the stamp should be held to be a distinguishing mark, and the ballot,' in consequence, should not be counted. The decision, in Curran v. Clayton, 86 Me. 42, 29 Atl. 930, does not impress us as correctly stating the law. But it is unnecessary to comment upon the decisions of other courts, for most or all of them were rendered under statutes differing from the one before us. If we construe section 1403 as appellant claims it- should be construed, then the question of whether the provisions of section 1361 are mandatory or
In this view of the law, can it be said that it is impossible to determine from their ballots the choice of the 72 electors whose votes were rejected by the lower court ? They were marked with- a cross in the circle at the head of the Democratic or People’s party list, and in each a cross was placed opposite Hartman’s name in the Silver Republican list or column. The name of no candidate for congress appeared on the Democratic or People’s party list. We think it is clear that the in-, tent of these voters was to cast a ballot for their own straight party ticket and also for Hartman. These voters, counsel for respondent claim, by the use of a cross opposite Hartman’s name, must be held, in the eye of the law, to have intended to vote only for a congressman. Upon this theory their votes by crosses in the circle for all the other candidates listed on the
Reversed.