127 N.W. 95 | N.D. | 1910
This is an appeal from a judgment of the district court of Ward county holding that the proposition submitted in that county at the last general election for the formation of the new county of Renville from a portion of Ward county failed to carry. Judgment was entered in a contest proceeding held as provided by § 693, Rev. Codes 1905. The facts, so far as necessary to an understanding of the questions involved, are that the question of creating the new county of Renville from a portion of Ward county was submitted at the general election in 1908, and the vote, as returned, showed 3,744 for the creation of the new county and 4,275 against it. The judgment of the district court cut down the majority to about 477. The contention on this appeal arises over the vote of the three wards comprising the city of Kenmare, it being urged by the contestant that none' of the votes cast in that city should be counted. If this be true, a majority in favor of the creation of the new county results. At the general election in 1906, 161 votes were cast in Kenmare. At the primary election held in June, 1908, the 'total number of votes cast was 207. Under the provisions of the Code relating to registration, the vote at the 1906 general election brought Kenmare within the-terms of the law requiring a registration of voters. At the general .election in 1908, on the question of the division and the formation of the new county, there were east in the three precincts of the city 625 votes against the new county and 2 in favor of it. This number was reduced by the recount in the district court. The primary election was held in June, 1908, but the list of names of those who voted thereat was not in the possession of or used by the election officers at the general election in 1908, nor was any list purporting to be a registry list used. No meeting was held to correct registry lists, as required by the general law regarding registration, and none of the
1. Section 21, chapter 109, Laws of 1907, which chapter is-known as the primary election law, requires the clerks of election to keep a list of all persons voting at such election, in duplicate, one of which remains a part of the record of the primary election and the other is required to be delivered to the board of registration within thirty days after the election, and reads: “The poll list so kept at the primary election and delivered to the boards of registration shall take the place of the first registration of the voters now required, and notice only shall be given of the date of the second day of registration, which shall be held and conducted as now provided, and no other shall be -equired to vote at the general election following.”
The registration law, aside from this provision, as contained in article 16, chapter 8, of the Political Code, commencing at § 732, Rev. Codes 1905, requires the persons authorized to act as judges of election in villages, cities, and wards coming under the provisions of the registration law, who, with the inspector of election, constitute the board of registration, to meet on the Tuesday two weeks preceding any general election, or any city election, and make a list, in the manner prescribed, of all persons qualified to vote at the ensuing election in such precinct, such list, when completed, to be known as the registry of the electors of such precinct. It is required that such board shall complete, as far as practicable, such registry list on the day of such meeting, certify the same in the manner prescribed, and file it with the board, and that it shall be kept by one of the judges or the inspector, by whom it shall be carefully preserved for subsequent use. Another copy of the list is required to be postea in a public or conspicuous place at or near the place where the next preceding election in such precinct was held, and to be accessible to any elector desiring to examine it or make copies thereof. Such board is required to again meet on Tuesday next preceding such election for the purpose of revising, correcting, and completing such list.
Section 738 reads as follows: “After such lists shall have been fully completed, such board shall, within two days, cause two copies of the same to he made, each of which shall be certified by it to be a correct list of the qualified electors of the - precinct so far as known,
The clerks of the election are required to enter on the poll list kept by them on the day of election the words “not registered” opposite the names of the persons who are not registered, but who vote by the use of the affidavit referred to, and to insert in the poll list the names and residences of such voters.
The provisions of § 21, chapter 109, Laws of 1907, that the list so kept at the primary election and delivered to the boards of registration shall take the place of the first registration of the voters required by article 16, chapter 8 of the Political Code, and that notice only shall be given of the date of the second day of registration, and that no other notice shall be required to vote at the general election following, is in conflict with § 61 of the state Constitution, which provides that no bill shall embrace more than one subject which shall be expressed in its title. The title to chapter 109 is, “An Act to Provide for the Selection of Candidates for Election, by Popular Vote, and Relating to Their Nomination and the Perpetuation of Political Parties.” It is quite apparent that this chapter relates, so far as disclosed by the title, only to the nomination of candidates for office. No intimation is contained in the title, or warning given thereby, that anything may be found in the body of the act amending the law relating to the regis
2. The provision in § 21, chapter 109, referred to, being in conflict with the Constitution and invalid, leaves those provisions of the registry law hereinbefore referred to and which the legislature attempted to amend, still in force and effect.
3. The learned judge of the trial court held that no registration was required to entitle the electors of Kenmare to vote upon the proposition of creating a new county. He evidently based this conclusion on the language employed by this court, and the writer hereof in State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, in which it was held that the provision-in the primary election law whereby electors were permitted to express their choice for United States Senator at the general election was, in a strict legal sense, a separate election, though held, for certain reasons, in connection with the general election and as a part of it. We think both court and counsel failed to correctly apply the language there used to the facts of the present case. We are of the opinion that when the registration of electors is required, or in lieu thereof the furnishing by them of affidavits showing their qualifications as a prerequisite to receiving their votes at a general election, the term “general election” is used in the statute containing these requirements to identify and designate the whole election held on the Tuesday after the first Monday in November in even-numbered years, and that it applies to all electors desiring to vote on that day either for the election of state officers, or on any other question submitted at the same time, and that unless such electors are registered or furnish the affidavits referred to as a substitute for registration, they are not entitled to vote. McCrary, Elections, § 194. An inspection of the election laws and the procedure which is prescribed and required to be followed by the officers of election supports this theory. Provision has not been made for the preservation of a list of those voting on special questions separate from those voting for state officers, or of those voting small ballots who do not vote the large one, except in the case of women.
An inspection of the provisions and the language of our registration law, and a comparison of the provisions of chapter 445 of the 1864 Wisconsin Laws, are sufficient to satisfy us that our law was copied from that Wisconsin law. It is unnecessary to parallel the different sections of the two laws, but is sufficient to note the similarity between § 738, Bev. Codes 1905, which, with the exception of a few verbal changes, was enacted as § 8 of chapter 122 of the laws of 1881 of Dakota territory. We have quoted § 738, supra. Section 7 of the Wisconsin law referred to reads as follows:
“After said lists shall have been fully completed, the said inspectors shall, within three days thereafter, cause four copies of the same to be made, each of which shall be certified by them to be a correct list of the voters of their district, one of which shall be filed in the office of the
In the Hilmantel Case, supra, the Wisconsin court construed § 7, chapter 445, Laws of 1864, in an action to determine who had been elected clerk of the board of supervisors. Hilmantel had received the certificate, and the complaint alleged that of the votes given and counted for Hilmantel in Milwaukee, 544 were received from persons whose names were not on the register, and no one of whom gave to the inspectors receiving his vote his residence within the district, either by his own affidavit or by the oath of a householder of such district, and that of such votes 145 were received from persons no one of whom proved to the inspectors by the oath of a householder of the district that he knew such person to be an inhabitant of the district, nor did any of them furnish the inspectors any proof upon oath that he was a resident of the election district. Chief Justice Dixon, who wrote the opinion, after explaining his former views of the subject and stating
In State ex rel. O’Neill v. Trask, 135 Wis. 333, 115 N. W. 823, persons not registered voted on executing affidavits furnished by the election officers. Such affidavits were defective, not stating the facts required by the statute. It was claimed that inasmuch as the affidavits furnished by the election officers were the only ones available to them, they had a right to rely on them as sufficient proof of their right to vote, and that since they were in fact electors and residents of the district, their votes should not be rejected after having been received. The court held that the language of the statute was clear and positive to the effect that no votes should be received if the name of the person offering the vote was not on the registry, unless he furnished the proof required by the statute showing his right to vote.
Respondent relies especially upon Minnesota authorities as holding similar provisions of the Minnesota registration law as only directory. That law is quite dissimilar to ours, but the section corresponding to § 738, while differing generally, does contain this language : “At such election no person shall vote whose name is not upon such list at the .time of opening the polls.” It was held in Taylor v. Taylor, 10 Minn. 107, Gil. 81, that the failure of the officers to perform any administrative act in relation to the election could not invalidate, it if the electors had no actual notice and there was no mistake or surprise. In that case there was no registry poll list made. This decision was followed in Edson v. Child, 18 Minn. 64, Gil. 43, and in Soper v. Sibley County, 46 Minn. 274, 48 N. W. 1112, but the opinion in those cases furnish very unsatisfactory reasons for the conclusions arrived at, and' in the Taylor Case the dissenting opinion written by Judge Berry is far more convincing than that of the majority of the court.
In the Edson Case Judge Berry, who wrote the opinion, states that, in his opinion, the rule laid down in the Taylor Case is unsound and
In the Soper Case the invalidity claimed consisted in a failure to. post the list of electors, and it was held that such failure was not fatal, but this is not an authority on the question we are now considering. In State ex rel Harris v. Scarborough, 110 N. C. 232, 14 S. E. 737, the supreme court of North Carolina held that the vote of a voter should be received and counted if he offered to comply with the laws in reference to registration, and was prevented by the wrongful conduct of the registrar, but if the vote was cast upon an invalid registration it should be rejected, and that it could not be counted by proving that none but duly qualified electors voted. We are of the-opinion that the Wisconsin authorities cited are controlling in this case, and we must therefore hold the statute prohibiting the receipt of a vote, unless the voter has registered, or furnishes the affidavit required by the statute, mandatory.
5. [Respondent urges that the primary election held in June, 1908,. in Kenmare, notwithstanding the provision of the primary law substituting that election for the first day of registration is unconstitutional, constituted a de facto registration of those electors who voted thereat,, and that, therefore, their votes should be counted. We have given this matter long and earnest consideration, and have reached the conclusion, on the facts found in this case, that this is immaterial, hence-we need not determine whether it was a de facto registration or not. The prime purpose of the law requiring the registration of voters is to-prevent fraud at elections. It contemplates that the registration list shall be in the hands of the election officials at the polling place on the-day of election, and that voters who have been registered shall have their names checked off on the registration list, while those who are unregistered shall furnish the affidavit prescribed as necessary to entitle them to vote. ■ The names of the latter are then placed upon the poll list and marked “not registered.” This prohibition against receiving the votes of persons not registered unless they furnish the statutory affidavit, and all other requirements of the registration and election laws, bearing on this -subject, are merely idle enactments and wholly useless, unless the registry list is present and used at the election. That list furnishes the only means provided whereby the elec
In Perry v. Hackney, 11 N. D. 148, 90 N. W. 483, this court held that, in construing the provisions governing the conduct of elections, they should be held mandatory when the purpose of the law-making power would be plainly defeated by a violation of such provisions, and that in construing them every positive requirement which, if disobeyed,
Erom what we have said, we feel that it is clear that the application of these principles compels the conclusion that the presence and use of the registry list at the polls on election day was, in the case at bar, essential to a valid vote in the three precincts of Kenmare except as to electors who might furnish 'the statutory affidavit. The trial court found that at the general election in 1906 only 161 votes were cast for governor in those precincts; that at the primary election in 1908, 207 votes were cast. No finding was made, and no hint or suggestion is offered, that there was any such increase of population in Kenmare between June and November, 1908, as to warrant any court to concluding that, had the requirements of the registration law been complied with, there would have been an increase from 207 to 627 votes between June and November. Under the authorities, one of the most marked indications of fraud in the conduct of an election is a sudden and unexplained material increase in the number of votes cast.
The authorities which we have cited, supra, are in harmony with our conclusions. In State ex rel. Wood v. Baker, 38 Wis. 71, the supreme court of Wisconsin held that, although the registration list was irregularly prepared, yet, in view of the fact that it was present and used at the polling place and the voters could observe its use when offering their ballots, and therefore were without any sort of warning that additional proof of their right to vote was necessary, that their votes should be counted. The doctrine of the decision seems to be that had they found no registry list in use when offering their ballots, their votes would have been challenged by law, and on their failure to furnish the required affidavit, similar to the one required by our statute, their votes should not be received, or counted if received. The opinion as a whole, and the reasoning of the court, support our conclusion in the case at bar. In State ex rel. Harris v. Scarborough, 110 N. C. 232, 14 S. E. 737, it is held that a vote cast upon an invalid registration should be rejected, and that one who seeks to vote without complying with the requirements of the registration law-must show that he offered to do all required of him by such law, and was prevented by the fault of the officers. And the court says: If, in the face of the statute which required the elector to place upon the-registration book
In Cusick’s Election, 136 Pa. 459, 10 L.R.A. 228, 20 Atl. 574, it is held that the primary object of the law requiring affidavits of unregistered electors to entitle them to vote was to prevent fraudulent voting, and that it must be so considered as best to carry out that intent, and that one whose affidavit was not in compliance with the requirements of the law was not entitled to vote, that the statute was mandatory, and that until an elector had established his qualifications in the manner pointed out by the law, be was not even a prima facie qualified elector, and that court says: “As before remarked, the contention upon this point settles down to the argumentum ab inconvenienti. It may be that the careless voter who does not value his privilege sufficiently to see, as every voter can see with very little trouble, that his name is placed upon the registry list, and who gives no thought to the means to establish his right to vote until he comes to the poll to deposit his ballot, may suffer some inconvenience and in some instances lose his vote, not because he is not duly qualified, but for the reason that he has not the means of proof at hand to satisfy the tribunal which the law has appointed to hear his case. So, the litigant in a suit at law may be defeated though his case be never so good, if he fail to produce his evidence at the proper time. When an unregistered elector offers his vote at the polls, the law challenges it instantly, and he knows that he can only avoid the challenge by a strict compliance with the requirements of the statute. If he comes to the poll without his proof, it is his own folly and improvidence. He has no right to expect that his indifference to his rights, or indolence in asserting them, are to be condoned by nullifying the provisions of a law which is the main bulwark of the purity of the ballot, and which deprives no qualified elector of his right, except as the result of his own indifference to his duties as a citizen.”
See also People ex rel. Foley v. Kopplekom, 16 Mich. 342. In
When the voters in Kenmare presented themselves at the polling places, they were charged with knowledge of the requirements of the law, and that, on observing the failure of the officials to use a registry list, they were only entitled to vote on furnishing the prescribed affidavit showing their qualifications. None of them furnished such affidavits. The primary duty was on the electors; at least had they not failed to comply with the provisions of the law, the present difficulty could not have arisen. The basic fallacy of respondents’ claims may be resolved logically, on final analysis, into the position that the possession of the qualifications of an elector entitles one to vote. This is not so. Eor a discussion of this subject, see Miller v. Schallern, 8 N. D. 395, 79 N. W. 865. It might as well be said that any citizen qualified to take a government homestead may acquire title to one without proving compliance with the law regarding residence and cultivation.
6. The learned trial court was of the opinion that § 2334, Kev. Codes 1905, which provides that no refusal nor neglect on the part of any official to perform his rightful duty in connection with-such election shall, in any wise, affect the validity of such election, rendered the failure to have at the polling places and make use of such registry list immaterial. What we have previously said, we think, is a sufficient answer to .this suggestion. We cannot believe that it was intended by-the enactment of § 2334 to render ineffectual the purpose of the registration law. In our opinion that section is only intended to apply to the minor details of conducting the election, such provisions as are plainly directory and a violation of which constitutes an irregularity only. This enactment is only in conformity with the holdings