125 P. 679 | Utah | 1912
Appellants instituted this proceeding for the purpose of contesting and annulling the result of an election held in Beaver City, Utah. Said election was held pursuant to chapter 106, Laws Utah, 1911, and the question submitted was whether the sale of intoxicating liquors as a beverage should be permitted within said city or not. Upon a hearing the district court entered judgment declaring the election valid, from which judgment this appeal is prosecuted.
“The election of any person to any public oflB.be, the location or relocation of a county seat, or any proposition submitted to the vote of the people may be contested.” (Italics ours.)
The grounds for contest are then set forth; and the grounds stated in the complaint filed in this case are within those enumerated in said section.
The question submitted to the electors of Beaver City was whether the sale of intoxicating liquors as a beverage should be authorized or denied within the limits of said city. The form of the question on the' official ballot was, “For Sale 0”- and “Against Sale 0,” and the voter indicated his preference by placing a voting mark, either in the circle placed after the words “For Sale,” or in the one placed after the words “Against Sale.” The election therefore was held to pass-upon a “proposition submitted to the vote of the people,” and thus comes within the purview of section 914, supra. The contention of counsel therefore cannot prevail.
In view of the facts presented by the record, the following questions arise: (1) Did the placing of the numbers upon the back of the ballots destroy their secrecy? (2) If it be assumed that such was the case, did the casting of said ballots vitiate the election ? (3) Did the numbering of the ballots constitute a distinguishing mlark, within the purview of the Australian ballot law in force in this state, and were the ballots thereby made illegal ?
The record discloses that when the first voter appeared at the polls to cast his vote in districts No. 1 and No. 2 he was handed a ballot numbered 1; and his name was written in the poll book opposite No. 1. A similar record was made with respect to subsequent voters; the only difference being that the numbering was in the order in which they appeared and voted. It is contended, therefore, that the proof is conclusive that by comparing the number of any particular ballot with the name which was written opposite the same number on the poll book any one could ascertain who voted a particular ballot, and how he cast his vote on the proposition whether for sale or against sale. It is contended that the secrecy of the ballot guaranteed by the Cbnstitution and statutes of this state was thus destroyed. It may be conceded that in comparing the ballots with the poll book, as suggested, it could be
Were the ballots void, or did the use thereof vitiate the election? These very questions very recently came before the Supreme Court of Idaho and are passed on in the case of McGrane v. County of Nez Perce, 18 Idaho, 114, 112 Pac. 312, 32 L. R. A. (N. S.) 730, Ann. Cas. 1912A, 165. The Idaho Constitution provides that “all elections by the people must be by ballot. An absolute secret ballot is hereby guaranteed, and it shall be the duty of the legislature to enact such laws as shall cany this section into effect.” At an election held in one of the counties of Idaho to determine the question whether intoxicating liquoi’s shall be sold or not, ballots were used which were' consecutively numbered, both on the face of the stub- and the face of the ballot, so- that it could be ascertained by comparing the ballots with the poll book who voted a particular ballot, and how such voter voted, just as in the case at bar. The- Supreme Court of Idaho in effect held that, while such a ballot was not the secret ballot contemplated by the Constitution, yet, in view of the fact that the numbers were placed on the ballots innocently, without any purpose on the part of any one to intimidate any one, or to ascertain how the voters voted upon the question, and in view that the voters cast such ballots in good faith, believing them to be legal and in due form, without being influenced in any way in their votes by the use of such ballots, the election was valid. This decision is assailed by appellants’ counsel as being unsound. We have carefully read the decision; and we feel constrained to say that, in our judgment, the reasoning of Hr. Justice Ailshie- is sound, and that the conclusions reached by him are supported by the great weight of authority. The more recent decisions with respect to the legal effect of casting numbered ballots, from which it can be ascertained who voted them, and how such
if it were shown tbat ballots were voted, tbe secrecy of wbicb was destroyed, whether tbe number was large or small. Sucb, in our judgment, is not tbe law. We think tbe true doctrine is tbat, although it be shown tbat ballots wbicb were not secret were used and voted, yet, unless tbe contestant goes farther and shows that tbe result of the election was in fact affected by voting sueb ballots, be cannot prevail in com testing an election so held. Tbe electors cannot be disfranchised by declaring their votes void for an act or omission of some election officer, or some one else, unless sucb act or omission violates some express constitutional or statutory provision, or amounts to intimidation or fraud. To tbis effect is tbe great weight of authority. See, among other cases, McGrane v. County of Nez Perce, 18 Idaho, 714, 112 Pac. 312, 32 L. R. A. (N. S.) 730, Ann. Cas. 1912A, 165; Farnham v. Boland, 134 Cal. 151, 66 Pac. 200, 366; Freshour v. Howard, 142 Cal. 501, 77 Pac. 1101; In re Town of Groton, 63 Misc. Rep. 370, 118 N. Y. Supp. 417; Hirsh v. Wood, 148 N. Y. 142, 42 N. E. 536; Eufaula v. Gibson, 22 Okl. 507, 98 Pac. 565. In tbe case last cited, it is said:
“A voter ought not to be disfranchised and his ballot rejected where, as in this case, an election officer improperly marks or numbers it, when it is not shown when it was done, or that it was*90 done with, the connivance, consent, or knowledge of the voter, and for the purpose of distinguishing it.”
Similar, and in some instances even stronger, language is used in all of the cases we have cited' above. In all of those ■cases, numbered or marked ballots were cast by at least some, if not all, of the voters; but, notwithstanding that fact, it was ■held that the ballots were properly counted, and that the ele6-tions at which they were cast were valid.
In principle, the case of Ritchie v. Richards, 14 Utah, 345, 41 Pac. 670, is not distinguishable from the case at bar. In that case, the election was assailed upon the ground that numbered ballots were used and counted, the secrecy of which was destroyed; and hence such ballots were illegal. In other words, it was contended that, because such ballots were supplied to the voters and were voted at the election, therefore the election was void. While the majority of the court held that the ballots were illegal because of being, numbered, yet the effect of the holding also is that the use thereof did not vitiate the election nor affect the result thereof, as shown by the return of the ballots that were cast. We are of the opinion, therefore, that, while the numbering of the ballots in question destroyed their secrecy, and for that reason were not such as the constitutional provision contemplates, and that the use of such ballots must be condemned, yet, in view that said ballots were numbered and cast under the circumstances hereinbefore stated, they were properly counted; and the election at which they were cast was also properly upheld by the district court.
*91 “No ballot furnished by the proper officer shall be rejected for any error in stamping or writing the indorsements thereon by the officers charged with such duties, nor because of any error on the part of the officer charged with such duty in delivering the wrong ballots at any polling place, but any ballot delivered by the proper official to any voter shall, if properly marked by the voter, be counted as cast for all candidates for whom the voter had the right to vote, and for whom he has voted.’-’
These provisions are in strict harmony with the doctrine announced by the courts that voters are not to be disfranchised, nor is the result,' as the same is expressed by their ballots, when legally marked and east, to be set aside, except for some substantial reason which affected the fairness or legality of the election. The numbers placed on the backs of the ballots in question did not constitute distinguishing marks, in view that they were not placed there by the voters, or with their knowledge, connivance, or consent; and hence the voters could not have been intimidated or influenced thereby, nor could they have intended the numbers as distinguishing marks! Moreover, the ballots in question here were the official ballots, and were, by the proper election officers, tendered to the voters as such. The voters therefore had the right to receive them and accept them as proper ballots to be cast by them.
In conclusion, we desire to state that we have carefully examined the cases cited and relied on by appellants. All of the cases cited by counsel, except, perhaps, two, to wit, Sweeney v. Hjul, 23 Nev. 409, 48 Pac. 1036, and Treat v. Morris, 25 S. D. 615, 127 N. W. 554, are easily distinguishable; both in fact and law, from the case at bar. In the -case of Sweeney v. Hjul, supra, a case from the same court, namely, Lynip v. Buchner, 22 Nev. 426, 41 Pac. 762, 30 L. R. A. 354, is referred to. In the latter case, the court held in accordance with the views herein expressed; while in Sweeney v. Hjul, apparently a different conclusion was reached. This, however, is more apparent than real, because
We are of tbe opinion that tbe ruling of tbe district court was right, and that tbe judgment should be affirmed. Such is tbe order. Respondents to recover costs.