224 P. 1110 | Mont. | 1924
delivered the opinion of the court.
At the general election held in Judith Basin county in November, 1920, the electors were called upon to express by ballot their choice of a place for permanent county seat. The rival candidates were the towns of Stanford and Hobson, and upon the face of the returns Stanford was successful. This action was instituted to secure a review and a judgment that Hobsonhad received the highest number of legal votes. Speaking broadly, the complaint charges fraud and the reception of illegal votes. The trial of the cause resulted in a judgment dismissing the complaint, and plaintiff appealed.
The findings made by the trial court are not challenged, but the conclusions drawn from the facts found furnish the groundsi for the attacks made upon the judgment.
1. It is contended by plaintiff that the Absent Voters Law is unconstitutional; that ballots cast by electors, who were not personally present at the polls are illegal, and that, if such ballots -be excluded, Hobson received a majority of the votes cast for permanent county seat.
The purpose of the Absent Voters Law (Chap. 155, Laws of 1917, now secs. 715 to 735, Revised Codes of 1921) is to afford
In entering upon a review of this case we indulge the pre sumption that the statute is a valid legislative enactment, for the rule is now too firmly established in this state to admit of further controversy, that the law-making department of our state government has plenary power, except in so far as it is abridged by the state Constitution or the supreme law of the land; that legislative authority will not be deemed to be circumscribed by mere implication; that he who attacks a statute as unconstitutional must be able to point out the particular provision which denies to the legislature the power which it has assumed to assert, and that a statute will not be declared unconstitutional unless its repugnance to the Constitution appears beyond reasonable doubt.
It is contended that the Absent Voters Law violates the provi sions of section 2, Article IX, of our state Constitution, which, so far as involved here, reads as follows: ‘ ‘ Every person of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote * * * : First, he shall be a citizen of the United States; second, he shall have resided in this state one year immediately preceding the election at which he offers to vote, and in the town, county or precinct such time as may be prescribed by law.” This section does not, in express terms, forbid the enactment of the statute in question, but counsel for plaintiff insist that the clause “at which he offers to vote” by necessary implication requires the personal presence of the elector at the polls and prohibits the enactment of a statute which authorizes the ballot to be delivered to the election officers by mail. The contention is grounded in the theory that the convention in drafting section 2, and the people in adopting it, intended to prescribe the place or manner of voting as well as the qualifications of the voter.
In Bourland v. Hildreth, 26 Cal. 161, decided in 1864, it was held that the Absent Voters Law of 1863 violated section 1 of Article II of the Constitution of California, which then provided: “Every white male citizen of the United States, * * * of the age of twenty-one years, who shall have been a resident of the state six months next pre
In People ex rel. Twitchell v. Blodgett, 13 Mich. 127, decided in 1865, the Absent Voters Law of 1864 was held to violate the provisions of section 1, Article VII, of the Michigan Constitution, which reads as follows: “No citizen or inhabitant shall be an elector, or entitled to vote at any .election, unless he shall be above the age of twenty-one years, and has resided in this state three months, and in the township or ward in which he offers to vote, ten days next preceding such election.” The court laid great stress upon the fact that this section as it appeared in the Constitution of 1835 had been construed to prescribe “the place in which an elector may vote,” by the legislature in proposing, and 'by the people in adopting, an amendment in 1838.
We are not called upon to express our approval of or dissent from the conclusion reached in each of the foregoing cases. Not one of them presents the precise question which confronts us. We observe, however, that in every instance the decision was by a divided court. Furthermore, the statute considered in each of those cases applied only to electors absent in military service, and authorized the commanding officers to open the polls at the military camps, wherever situated, and to conduct the» election. In other words, the election precincts or districts! were created and the act of voting was completed at the camps. The supreme court of Pennsylvania held, and we think properly, that the legislature could not create an election precinct outside of the state, and a fortiori could not authorize army officers to do so.
In his consideration of the Michigan statute, Judge Cooley observed: “There is no provision in this law anywhere that ‘the soldier’s vote shall be received and have effect in the township or ward of his residence.’ The votes are never to be re
In Baldwin v. Trowbridge, 2 Bartlett’s Contested Election Cases, 46, the House of Representatives in 1866 held the Absent Voters Law of Michigan valid so far as it affected the election of representatives in Congress, and the people of Michigan thereafter amended their state Constitution so as to permit the character of legislation condemned in the Blodgett Case.
The decision in Bourland v. Hildreth was followed in Day v. Jones, 31 Cal. 261, decided in 1866.
Under constitutional provisions somewhat similar to those recited above, absent voters laws enacted in Wisconsin, Iowa and Ohio during the Civil War period were sustained against a like attack. (State ex rel. Chandler v. Main, 16 Wis. 422 (1863) ; Morrison v. Springer, 15 Iowa, 304 (1863); Lehman v. McBride, 15 Ohio St. 573 (1863).)
The advisory opinions of the justices of the supreme court of Connecticut, New Hampshire, Rhode Island and Vermont (30 Conn. 591; 44 N. H. 633; 45 N. H. 595; [N. H], 113 Atl. 293; 41 R. I. 118, 102 Atl. 913; 37 Vt. 665), considered constitutional provisions so vastly different from anything found in our state Constitution, that they do not reflect in the least upon the question now before us. The Constitution of each of those states was drafted with reference to the peculiar New England system of elections at town meetings.
In 1898 the court of appeals of New York considered a statute which authorized a polling place to be established beyond the boundaries of an election district and permitted electors of the district to vote at such polling place. The Constitution of New York then provided: “Every male citizen of the age of twenty-one years, who shall have 'been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, aiid for the last four months a resident of the county and for the last thirty days a resident of the elec
Absent Voters Laws of recent enactment are now in force hi more than thirty states of the Union. The Missouri Act was assailed upon the ground that it conflicts with the provisions of section 2, Article VIII, of the Constitution of that state, which provides that an elector “shall have resided in the county, city or town where he shall offer to vote at least sixty days immediately preceding the election. ’ ’ Likewise it was contended that an absent voters law was prohibited by the language of section 2, Article VI, of the Constitution of North Carolina, which reads as follows: “He [the elector] shall have resided in the state of North Carolina for two years, in the county six months, and in the precinct, ward or other election district, in which he offers to vote, four months next preceding the election." In each instance the statute was upheld. (Straughan v. Meyers, 268 Mo. 580, 187 S. W. 1159; Jenkins v. Board of Elections, 180 N. C. 169, 14 A. L. R. 1247, 104 S. E. 346.)
The difference in phraseology employed in the several provisions considered in the cases above may account to some extent for the different conclusions reached; but if it can be said that the difference between any one of them and our section 2, Article IX, is a difference of form of expression, rather than substance, we reply that the decision of the highest court of another state is not binding upon us. It is entitled to respectful consideration and is valuable to the extent only that
Chapter 155, above, is not open to the objections which were urged against the Absent Voters Acts of the Civil War period. It is general in its terms and provides all the safeguards necessary to secure a secret ballot and an honest expression of the elector’s choice. It does not undertake to create election precincts outside of this state or to authorize an elector to vote outside the precinct of his residence; but it does provide a simple and convenient method by which he may vote in his home precinct though absent in person from the polling place. It provides that the qualified elector who is duly registered and who expects to be absent from the county of his residence on election day, may in advance receive from the county clerk an official ballot. He must then make the required affidavit, mark his ballot, place it in the envelope provided for that purpose, securely seal the envelope, subscribe the affidavit printed upon the envelope, have the officer before whom he makes the affidavit, subscribe the certificate also printed upon the envelope and the ballot is then transmitted by mail to the county clerk, who sends it with the elector’s application to the judges of election of the elector’s precinct. On election day the judges of election remove the ballot from the envelope, detach the stub, and deposit ■ the ballot in the ballot-box. Ample means are provided for identifying the elector, whose right to vote is subject to challenge as in the case of an elector personally present. It will be observed that our Act is not open to the criticism offered by the justices of the supreme court of New Hampshire (113 Atl. 293) that the elector parts with all control over his ballot and has in fact voted when the ballot is marked and deposited in the mail addressed to the proper election officer. Our general election laws (secs. 700-703, Rev. Codes 1921) provide that when a ballot is tendered to the judges of election by an
The question then recurs: Does section 2, Article IX, prohibit the legislature enacting a statute which permits a tender made in this manner, or does it by necessary implication require the elector himself to make manual delivery of his 'ballot to the judges of election? The section does prescribe minimum age, citizenship, and residence as necessary qualifications of an elector, and, if it undertakes to fix the place or manner of voting, the requirement is to be found in the clause “at which he offers to vote.” It must be conceded that qualifications to vote, and place or manner of voting, are not homogeneous. The terms involve essentially unrelated ideas. Standing alone, the clause “at which he offers to vote” is meaningless, and it acquires meaning only by association with the context. Aside from that clause there is not anything in the entire Constitution which suggests an intention on the part of the framers to prescribe the time or place for holding elections or the manner in which they shall be conducted or the votes east. In the schedule
In some of the early decisions referred to above it was evidently considered a cogent reason for holding absent voters laws invalid that at the time the Constitution considered was adopted, the only recognized methods of voting were viva voce, a showing of hands, a division, or the manual delivery of a ballot to the proper election officials. If that be an argument, it is not available in this instance, for absent voters laws were in effect in some of the states at the time our Constitution was adopted. But to our minds it is not an admissible argument.
From the fact that an elector is guaranteed qualified immunity from arrest in going to, attending and returning from an election (see. 4, Art. IX), no inference can be drawn that the Constitution requires the personal presence of the elector at the polls and forbids the enactment of an absent voters law. Of course, if the elector attends in person he enjoys the immunity, but, if he does not, the provision has no application to him. A somewhat similar immunity is extended to witnesses by section 10676, Revised Codes of 1921; but no one would have the temerity to suggest that this section by necessary implication requires the personal presence of a witness in court, and forbids the use of depositions or affidavits in proper cases.
We think the absent voters law is not open to any of the objections urged against it.
2. It is contended next that, even though the statute be upheld as a valid legislative enactment, its provisions were so far disregarded that many votes cast by absent voters should not have been counted. The trial court found that absent voters’ ballots were east as follows: In precinct 38, thirteen; in precinct 38%, thirteen, and in Arrow Creek precinct, four; that in every instance the elector’s application for a ballot was accompanied by the affidavit of only one resident elector of his precinct, together with the affidavit of a resident elector of another precinct, but, notwithstanding the finding, the court concluded that twenty-nine of the votes should be counted, since every one of the voters, excepting one, was a
Section 4 of Chapter 155 (sec. 718', Rev. Codes) requires the application for an absent voters ballot to be accompanied by the affidavit of each of two resident registered electors of the precinct in- which the absent voter resides, to the effect that the affiant knows the applicant, that the person whose signature is appended to the application is the applicant, and that the applicant resides in said precinct. It is contended by plaintiff that this statute creates a new right or privilege not theretofore recognized or existing, that it directs that the ballot may be secured only in a prescribed manner, and that compliance with the precedent conditions is indispensable to the use of the ballot. In other words, it is contended that the statute is mandatory, and that a failure upon the part of the elector to comply with its terms renders his vote illegal.
We do not agree that the statute creates any new right. It merely provides the means for facilitating the exercise of the right which the elector has in virtue of his qualifications as an elector. The manifest purpose of requiring the affidavit of each of two registered electors of the same precinct as the applicant is to furnish the county clerk evidence of the applicant’s identity and place of residence, and thus prevent an official ballot for a given precinct falling into the hands of anyone who is not entitled to use it. We say that the affidavit is for the enlightenment and protection of the county clerk; and this must be so, for as soon as the ballot is issued it ceases to perform any function whatever. It is indisputable that without the full measure of evidence which the statute prescribes, the county clerk could not be compelled by mandamus, or otherwise, to furnish the ballot; but, if he acts upon less evidence than the statute prescribes and furnishes the ballot, and the applicant is in fact a qualified and registered elector of the precinct for which the ballot is issued, and he casts the ballot in good faith and in all other respects complies with the letter
The like question has arisen in other jurisdictions. A statute of Illinois provided “that no vote shall be received at any state election, if the name of the person offering to vote be not on the register, unless such person shall furnish to the judges of the election his affidavit that he is an inhabitant of the district and entitled to vote therein, and prove, by the oath of a householder and registered voter of the district, that he knows such person to be an inhabitant of the district.” At an election ballots were cast by electors not registered, and the
It is impossible to reconcile these conflicting decisions, and no useful purpose would be served by an attempt to differentiate between mandatory and directory statutes. In Price v. Lush, 10 Mont. 61, 9 L. R. A. 467, 24 Pac. 749, decided in 1890, this court held that the provisions of the Act of March 13, 1889 (the Australian Ballot Law [Laws 1889, p. 135]) were mandatory and that informalities in the nomination of a candidate for office vitiated his election. The effect of that decision was to disfranchise the electors who had voted for Lush and to determine an election contrary to the will of the majority of the electors. The decision was practically overruled in Stackpole v. Hallahan, 16 Mont. 40, 28 L. R. A. 502, 40 Pac. 80, and since 1895 this court has adhered consistently to the doctrine that the purpose of our election laws is to secure to every qualified voter the right to cast an'honest ballot and have it counted as cast; that any arrangement made by law to encourage the exercise of that right will not be nullified by the courts unless the arguments against it are so clear and convincing as to be unanswerable; that a ballot will never be vitiated by anything which is not clearly within the prohibiting words and meaning of the statute; and that an elector should not be de
3. The trial court found that twelve ballots were cast in Dry Wolf precinct in favor of Stanford by electors who were not personally present at the polls; that when the envelopes containing these absent voters ballots were received by the judges of election, not one of them was accompanied by the elector’s application for his ballot. The court found further that every one of the ballots was cast by a duly qualified registered elector of the precinct, and that there was not any element of fraud present. Upon these findings the court concluded that the ballots were properly counted, and the correctness of that conclusion is now called in question.
Chapter 155, above, provides that when an envelope containing an absent voter’s ballot is returned to the county clerk by the elector, the clerk shall inclose the same unopened with the elector’s application for the ballot in a larger envelope (see. 722, Rev. Codes), which shall be delivered to the judge of election of the proper precinct to whom the official ballots are delivered (sec. 723); that on election day the judges of election shall first open the outer envelope and compare the signature on the application with the signature on the inner envelope, and if the signatures do not correspond “such vote shall not
It is the contention of plaintiff that since the comparison of the signatures could not be made, the judges of election erred in depositing these twelve ballots in the ballot-box, and that they should be rejected. This contention presents fairly the question: Are these twelve duly qualified electors, each of whom complied with the very letter of the law, to be disfranchised solely because the county clerk failed to transmit to the judges of election the application cards — an act in the discharge of which the electors had no voice and over which they could not exercise any control? To ask the question is to answer it.
In State v. Fransham, 19 Mont. 273, 48 Pac. 1, this court quoted approvingly from People ex rel. Hirsh v. Wood, 148 N. Y. 142, 42 N. E. 536, the following: “We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even willful misconduct of election officers in performing the duty east upon them,” and added: “Or it might be put in this way: If no ante-election objection * * * is made, the provisions of the statute are to be treated as directory.”
In Lane v. Bailey, 29 Mont. 548, 75 Pac. 191, it appeared that ballots were cast by electors whose names had been entered on the registry lists but from whom the registry agent had not exacted the statutory affidavit, and for that reason the ballots were attacked as illegal. In holding that electors could not be thus disfranchised, this court said: “That a registry agent neglects his duty should not deprive an elector of the right to exercise his franchise. If the elector may be deprived of his right to vote in this manner, an unprincipled registry agent may change the political status of a precinct at will, and
In Carwile v. Jones, 38 Mont. 590, 101 Pac. 153, it was made to appear that the judges of election had deposited in the ballot-box' a ballot from which they failed to detach the stub, thus making it possible to identify the voter. In the contest which followed the trial court refused to count that ballot, and the ruling was held to be erroneous. This court said: “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.’ * * * In the absence of any showing of a corrupt or unlawful purpose, it will be presumed that this omission was the result of accident or inadvertence; but in any event, neither Jones nor the voter should be made to suffer for the misconduct or mistake of an election officer, where, as in this case, there is not any showing that either participated in, or was at all responsible for, the error.”
In Harrington v. Crichton above, it appeared -that the judges of election in a given precinct, when stamping the ballots as they were delivered to the voters, in each instance placed the stamp so near the top of the ballot that when the stub was removed, the stamp was removed with it, leaving the ballot without the indorsement required by law. The statute then in force (now sec. 777, Rev. Codes) provided that any ballot not indorsed by the official stamp “is void and must not be counted.” Notwithstanding the language of that statute, this
Finally, in Thompson v. Chapin above, it was made to appear that, certain electors had been permitted to vote without signing the precinct registry book, and the question presented was whether their ballots should be held to be illegal. Section 576, Revised 'Codes, provides, that before any elector is permitted to vote, the judges of election shall require him to sign his name in the precinct registry book provided for that purpose, and, if he fails or refuses to do so, being able to write, “he shall not be allowed to vote.” This court held that the duty to see that the elector signs the registry book devolves primarily upon the election judges, and, if they fail in the performance of that duty and the electors are not at fault, their ballots cannot be excluded. It was said: “The general rule laid down by this court, which appears to be universally recognized, is that the right of our citizens to vote at an election cannot be defeated because of the failure of election officials to perform an administrative duty in the conduct of the election, specifically imposed upon such officials.” It is no argument to say that the clerk may be punished for his dereliction of duty, for his punishment would not repair the wrong resulting from a disfranchisement of duly qualified electors.
Without further discussion we hold that where, as in this instance, the question of the right of the elector to vote under the circumstances here disclosed is not raised until after election, the provisions of section 727 above will be held to be directory, and that the failure of the county clerk to perform his duty will not operate to disfranchise the electors who were duly qualified and without fault.
Waiving aside the question whether, under proper circumstances, the defendants could bring before this court the testimony taken at the trial, without a bill of exceptions, it is
The judgment is affirmed.
Affirmed.