12 Colo. 256 | Colo. | 1889
Lead Opinion
The appellant was declared elected to the office of county treasurer of said county of Bent, at the election held November 8, 1887, by a majority of eight votes over his opponent, the said appellee. The contestor alleged that illegal votes had been received and counted against him; also that votes had been illegally received and counted against him to his detriment. And the contestee alleged that illegal votes had been received and counted against him. The case was tried by the county judge of the said county under the provisions of the act approved AprillO, 1885.'
From the vote of Sheridan Lake precinct, forty-eight votes, on account of color and width of ballot, ten of the same being held illegal on the additional ground of insufficient residence of the voters in the state.
From the vote of Wilde precinct, thirty votes, on account of irregularities of the judges of election there, nine of the same being held illegal on the additional ground of insufficient residence of the voters in the state and precinct; and from other precincts, three votes on the ground of insufficient residence of the voters, — in all eighty-one votes deducted from those counted for appellant; and from the votes received and counted for appellee, eight votes were deducted on the ground of insufficient residence and other disqualifications of the voters. Whereupon judgment was given for the said appellee, from which the case comes here on appeal.
It is contended here for appellant that the court erred in all of the said deductions from the count for appellant.
1. Of the forty-eight votes of Sheridan Lake precinct, it appears that from a mistake in the directions the regular party ticket, by which appellant was named for the office of county treasurer, failed to reach the voting place of that precinct. Whereupon the tickets for said party were there printed on pale yellow paper three and a quarter inches wide, containing, along with the other candidates of said party, the name of appellant for said office of county treasurer, this paper being the nearest to the kind prescribed by the statute there obtainable upon which to print the tickets. Forty-eight of these tickets were accordingly voted, received and counted at this precinct. The good faith of the transaction is not questioned.
Section 1199 of our General Statutes provides that when it shall be found, on counting votes, that two or
By the statute it is unlawful to print or distribute tickets other than the kind prescribed in said section 1281. It is also declared that in the cases described in said sections 1199 and 1282 the judges of election shall not count the votes. Ho other cases are mentioned in which the judges of election are expressly authorized not to count the votes received. There is no claim that any fraud was intended or perpetrated in the premises.
I see no warrant in the statute for deducting these votes from the count. The courts are without authority to declare such penalty against the voter until the legislature shall have declared that the act of voting such ballot shall be unlawful, and that such ballot, if voted by the elector and received by the judges, shall not be
The right to vote under our constitution is a vested constitutional right, with no condition imposed as to the manner of exercising the right, except that the vote be by ballot. That a right so vested-and exercised—a vote so offered and received — may be defeated by force of legislative enactment at all, may be doubted. See Daggett v. Hudson, 54 Amer. Rep. 832, and note. However, conceding that an enactment expressly declaring against voting, against counting or knowingly receiving, ballots other than those prescribed may be sustained, still it seems clear that the exercise of such right by the elector may not be nullified by force of a strained and doubtful construction of an enactment containing no such expressions.
Such expressions are found in the enactments on this subject in California, Mississippi and Texas, and the exclusion of the prohibited ballots in those states, therefore, rests upon such direct expressions. See Reynolds v. Snow, 67 Cal. 492; Steele v. Calhoun, 61 Miss. 556; Owens v. State, 64 Tex. 509. The California statute provides that no ticket shall be used at an election, or circulated on the day of election, unless it is of á particular description prescribed; and it further provides that when a ballot, contrary to such description, shall be found in any ballot-box, it must be with all its contents rejected.
The enactment of 1880 of - the state of Mississippi is like ours in this regard, except that it provides that a ticket different from that prescribed shall not be received nor counted. And the enactment of 1879 of the state of Texas is also similar to our statute in this regard, with the exception that it provides' that any ticket not in conformity with the act shall not be counted. I find no case, and I think none can be found, where the deduction of such votes from the count is allowed in the
However this may be, it will be conceded that the rights of the electors voting are necessarily involved in contests of this kind; that their rights in the premises may not be ignored; that, to warrant the courts in depriving them of their votes as a result or penalty for having voted ballots printed upon paper different from that prescribed, there must be legislative expression to that effect. It is contended that it was the intention of the legislature, by the enactment under consideration, to deprive them of their votes when so cast, , and that such intention is apparent from the act, notwithstanding the want of expression in this regard, and that such intention should govern, in order to give effect to this provision of the act.
It was stated in the oral argument that this section 1281 was taken from the Ohio act upon the same subject. Upon examination of that act I find that it declares that it shall be unlawful to publish, distribute or vote a ticket different from the ticket prescribed. The prohibition against the voter, being omitted in the act here, is significant, in that it tends to show that the legislature here did not intend to defeat the vote of an honest voter honestly voted, even if his ticket was of different paper from that prescribed, but did intend the provision in this regard for his protection in the premises; that is to say, the legislative intention to be gathered from the language used seems to be that no ballot except the kind prescribed should be printed or furnished to the voter, to
Upon a fair consideration of the statute it is not apparent that the legislative intent was to nullify such votes. See Gilleland v. Schuyler, 9 Kan. 587; McCrary, Elect. (3d ed.) §§ 190-193.
Inasmuch as section 1281 is an almost literal rescript of the Ohio statute, it has been suggested that there has been error in transcribing. The Ohio statute declares that “it shall be unlawful for any person to * * * distribute to any elector, or vote, any ballot printed or written contrary to the provisions hereof. ” Sec. 2948.
Section 1281 provides that “it shall be unlawful for any person to * * * distribute to any elector or voter any ballot printed or written contrary to the kind prescribed.”
An examination of the enrolled act shows no error by the printer or publisher. The printing and punctuation are correct.' No one can say that section 1281 is not as complete and grammatical as the Ohio act. If the change was unintentional it is certainly not apparent on its face. It appears to be the deliberate act of the general assembly, and it would be a most dangerous precedent for the courts to assume to change the express terms or language of a perfectly constructed statute, as changing a noun to a verb, and altering the punctuation, in order to correct the supposed errors of the law-making power. Such corrections must be made by legislative and not by judicial authority. Bishop on Statutory Crimes, section 199, says: “The circumstances will be rare in which any court will so extend an enactment by construction as to involve penal consequences not within the express words.”
To attempt to correct section 1281, or give it the construction proposed, would be to declare the voting as well as the distribution of such ballots to be unlawful,
The courts are inclined to restrict the exceptions which expressly exclude the ballot, rather than to extend them, and to admit the ballot if the spirit and intention of the law is not violated, although a literal construction would vitiate it. State v. Phillips, 63 Tex. 393; Druliner v. State, 29 Ind. 308; Stanley v. Manly, 35 Ind. 275; Kirk v. Rhoads, 46 Cal. 399.
Courts should not extend an enactment by construction beyond the expression of the act, so as to deprive an elector of his right of suffrage. When such consequences are involved the courts go not beyond the expression of the act. To deprive legal voters of their votes, after they have been in good faith by ballot cast and counted, without express statutory mandate therefor, would be an advance beyond all precedent, and, as I think, in violation of correct principles. 2 Bouv. Law Diet. 318.
2. As to the votes of Wilde precinct. There were thirty of them, and all for appellant. The judges had duly counted and tallied the votes, and had put the ballots into the ballot-box and sealed up the box, but had failed to sign the tally-lists or poll-books until the next day after the election, when one of the judges had departed; whereupon a messenger was sent with the said tally-lists or poll-books after said judge, who was overtaken by said messenger out on the prairie, twenty miles distant from the voting place, where he, signed the said tally-lists, and gave them, with his key to the ballot-box, to said messenger, who returned them to the other two judges, who, at the house of one of them, signed the said tally-lists, opened the said ballot-box and put one of the said lists therein, and locked and sealed the said box, and regularly forwarded the same. It is clearly shown by the evidence that-no fraud was perpetrated, that no changes were made nor injury of any kind inflicted, and
3. Referring now to the votes deducted from the count for appellant on the ground of insufficient residence in the state.
First. H. A. Jones. This voter testified at the trial, and stated that he arrived from Iowa at Sheridan Lake, on the 6th day of May, 1887, bought a lot in Sheridan Lake on the evening of .May 7th, and agreed with the town company to erect a building for a hardware store on another lot, to be donated to him, and to do the same within thirty days; that he put up the hardware store, and in the meantime bought a relinquishment to a claim in the precinct with a house on it, and when his family came on June 26th he moved out to the claim, and was still living there at the time of the election and at the time of the trial. When he arrived at Sheridan Lake it was his intention to make that place his home. After leaving Iowa, he had. no home for his family until he bought the- relinquishment. His wife was visiting in Kansas. He had leased his house in Iowa. He left Colorado in May for his family, and returned in June.
In the cross-examination the following appears: “Ques
' By section 1150 of our General Statutes, as to residence, it is provided that a voter shall have resided six months in the state, ninety days in the county, and ten days in the precinct where he votes. Did the six-months residence of Jones in the state of Colorado commence as early as the 8th day of May? The domicile or residence, in a legal sense, is determined by the intention of the party. He cannot have two domiciles at the same time. When he acquires the new home he loses the old one; but to effect this change there must be both act and intention. McCrary, Elect. § 62. There must be the act of severance from the old place, with the intention of uniting with the new place. The intention should be gathered from the acts of the party. The acts of Jones were as follows: (1) Erom his prior home in Iowa he wrote to his friends at Sheridan Lake, Colorado, with reference to locating there. (2) He leased his house in Iowa, terminating his residence there, and left his wife visiting in Kansas, while he proceeded to Sheridan Lake, in Colorado, arriving there on the 6th day of May. (3) On the Ith day of May he bought a lot at Sheridan Lake;
Second. W. A. Laffaty. This voter testified that he resided at Sheridan Lake; was cashier of the Citizens’ Bank there; came to Colorado on May 3, 1887; before coming to Colorado resided in Illinois, where he was handling a stock of general merchandise; sold out the business, and left Illinois April 29th and came direct to Colorado. His intention was to become a citizen of Colorado, and had never changed such intention. On May 3d he was at the Bailroad House in La Junta, Bent county, Colorado, and consulted with Killgore & Seeley there; was looking up a place of business; went from there to Lamar, Bent county, and went to Sheridan Labe June 15th, and lived there ever since; had no family. When he first went to La Junta, he registered from lili
On cross-examination he stated that since May 3d he had no interest in real or personal property outside of Colorado, except notes and accounts at Alexis, Illinois; that he came to Colorado to engage in business; was not certain he would engage in business until he had made up his mind to go into the banking business; did not know that he would have stayed in Colorado if he had found no business that suited him; if he had found business in some other state that suited him better, would have gone there; commenced to build his banking-house July 15th; had been waiting some time for lumber to do the work with. Before deciding to go into the banking business at Sheridan Lake, had not decided what business he would go into, nor in what town.
On re-direct examination he stated that after his arrival at La Junta, May 3d, he did not give the matter of going into any other state or territory a.ny thought or consideration; had no fears or doubts at any time after he first came to La Junta as to being able to find a permanent location in Colorado. Between the time of going to La Junta and the time of locating at Sheridan Lake he resided in Colorado, at the following places: Cheyenne, Wells, Kit Carson, Manitou, Denver and Pueblo; and there is nothing in the evidence contrary to this testimony.
Did this voter’s residence in Colorado commence as early as May 8th? The act of changing from Illinois to Colorado was consummated May 3d. That such was the intention is verified by every act thenceforward. This voter had no family. His first residence or domicile in Colorado was at La Junta. While there he had no other. So, too, with the other places he resided at previous to his permanent location at Sheridan Lake in June or July. The domicile or residence in the state may com
Third. A. D. Bortle. From the evidence it appears that this voter was located on a pre-emption claim in the precinct where he voted on the 2d or 3d day of May, 1887. That he and his family lived there, and continued to live there at the time of the trial. That he boarded with the witness and with a brother-in-law there, while building his house on his claim; went to meet his family, who had been on their way out to Colorado, and were then at Leoti, Kansas; was gone for his family four or five days. That he and his family moved into the house on the claim during the month of May. That the former home of Bortle was in Missouri: From the testimony of one witness it appears that Bortle’s family arrived as early as the 6th day of May; that they stopped at his house on arrival in the precinct. There is nothing in conflict with nor contrary to this evidence, except a slight difference as to the date of the arrival of the family. Bortle was not called to testify, though shown to be within reach of the process of the court. I see nothing to cast a doubt against the sufficiency of Bortle’s residence to constitute him a legal voter at the said election. The court erred in deducting his vote from the count.
Fourth. Frank J. Barnes. It appears that this voter was registered as residing on section 22, township 26. A witness testified that he did not live on said section as early as the 8th day of May, 1887. Another witness testified that he knew said Barnes, and saw'him in the pre
Fifth. John W. Gwin. It appears that this voter was registered as residing on section 31, township 37; and a witness testified that there was no one living there as early as May 8th. Another witness testified that he knew the said Gwin, and. that he resided in the precinct; and this is all that is disclosed of him by the evidence.
Sixth. Emmet W. Smith. It appears that this voter was registered as residing on section 33, township 37, and a witness testified that Smith was not living there as early as May 8th. Another witness testified that he knew said Smith, and that he resided in the said precinct;. and this is all that is disclosed of him by the evidence.
Seventh. J. Elzen. There was an ineffectual attempt to show that this voter did not live on the claim shown by his registration to be his place of residence.
As to the last four of these seven voters, the evidence concerning them seems to have been given upon the impression that a residence of six months in the precinct was necessary. The registration occurring but a short time previous to the election, the precinct in which the voter then resided would, of course, appear as his place of residence, such registration showing simply where he resided when registered. There is nothing in the evidence touching these four voters to show that they had not been bona fide residents of the state for six months previous to the said election, as well as residents of the county and precinct the requisite time. It is certainly clear that the presumption in favor of the legality of their votes in this regard is in no way nor to any extent overcome by the evidence.
Eighth. O. H. Perry. Erom the testimony given by this voter it appears that he arrived from Chicago, Illinois, at the precinct of Arlington Springs in said county of Bent, on the 9 th day of May; that he had been elected
As to the remainder of the twenty-two votes of this class deducted from the count for appellant, I think the evidence sufficient to sustain the findings of the court against a large portion of them, on the question of residence. As to the eight votes deducted from the count for appellee, no question was made as to the court’s findings thereon in the argument. However, I think the evidence clearly sufficient to sustain the findings of the court thereon as to all except one, viz., L. H. Herne, of which there may be room for doubt. The evidence does not make it clear as to the
It follows that appellant had a legal majority of at least two votes; that the said errors of the court below were prejudicial to the appellant, and that the judgment should be reversed.
For the reasons stated in the foregoing opinion the judgment of the court below is reversed.
Reversed.
Dissenting Opinion
{dissenting). I feel reluctantly constrained to dissent from the views expressed and the conclusion reached by a majority of the court. In so doing I adopt the following opinion, which is almost verbatim the one prepared by Commissioner De France, concurred in by Commissioner Kising, and reported in this case to the court. I believe it to be the sounder exposition of the statute under consideration.
The manner of voting at elections in this state is by ballot, and the law-making power has at least attempted
The law thus stood until 1888, ■when section 1281, in connection with other provisions, was enacted. The purpose of such enactment is not to be doubted. It was to afford the voter a better security for the secrecy of his ballot than then existed. The forty-eight ballots in question in this case were printed ballots,- printed on yellow paper. The provisions of this section prohibit the use of any other than plain .white news printing paper for printed ballots. The wddth of the ballot is provided for, allowing some latitude therein. The law prescribes what a lawful ballot shall be, and its essential purpose is to prohibit the use of a, ballot which, from its color, width or any device or mark thereon, may be readily distinguished, by its back or in outward appearance, .from a lawful ballot. Such a ballot is by this law made an illegal ballot. It' is declared unlawful to even print ballots of that kind for distribution at the polls or to distribute the same to the electors. It has been suggested that because the law does not in express terms say that it shall be unlawful to vote the same, nor declare any consequence for so doing, it may be inferred that such act was not intended as one of the things prohibited, and that at all events it was not intended that the voter committing such act should lose his vote. But this cannot be, for if the voting of such ballot is not to be deemed prohibited,
The necessary .consequence under this statute is that the voter shall lose his vote. If the law provided a penalty for casting such a ballot, the consequence might perhaps be different, and the vote, in that event, be considered valid, for the reason that no other consequence than that prescribed should be visited upon the voter. Morril v. Haines, 2 N. H. 246; Lester v. Bank, 33 Md. 558; Harris v. Runnels, 12 How. 79.
But where no express penalty is prescribed, and the nature of the forbidden act is such as carries with it or determines the consequence, then such consequence must attach, and especially when, without attaching it, the legislative enactment would be left without force. In the case before us, if the consequence — that is, the loss of the vote — be not attached, then the principal object of the law is defeated. A statute must be so construed and applied as to fully carry out the true intent and meaning thereof. Sec. 3143, Gen. St. 1883; Sedg. St. & Const. Law, 325. To place any other construction upon the essential provisions of sec. 1281 — as, for instance, to hold such provisions to be merely directory — would do violence to the enactment, and leave it without force. ‘ ‘ Stat - utory requisitions are deemed directory only when they relate to some immaterial matter, where a compliance is
In the case of Rex v. Loxdale. 1 Burrows, 447, Lord Mansfield says: “ There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory.”
Where a statute requires the manner of voting to be by ballot, it is imperative, and votes cast viva voce cannot be counted. McCrary, Elect. (2d ed.) § 446. The chief reason for the ballot system is its secrecy, and the chief object of sec. 1281 is to secure such secrecy; and its requirements, being reasonable, should have the like force and effect given to them as are accorded to a statute adopting the ballot system.
As the underlying principle of our government is that the will of the majority shall rule, so the chief object of our election laws is to ascertain what that will is. It is important, therefore, that no legal voter should be deprived of his vote, or lose the same after it is cast; and hence the principle of strict construction is applied, as a general rule, to all election laws, where it can be applied consistently with their provisions, in favor of the innocent voter, that he may not, by the wrong-doing or omissions of others, be deprived of a voice in the conduct of goverñmental affairs. But we know of no well-considered authority which extends such principle to a case where the voter himself has broken the law. This distinction is well recognized by Brewer, J., in the case of Gilleland v. Schuyler, 9 Kan. 569, where he says, at page 591: “ The complaint is that the officers have designated an improper place, and not that the electors have assumed to disregard the selection of either the legislature or any officer. Where the electors have not themselves broken the law, ought they to be disfranchised?” And see McCrary, Elect. (2d ed.) § 312, and authorities there cited.
It is claimed that because the section contains no negative words, as that the proscribed ballot shall not be received, or that it shall not be counted, or the like, it was not intended to invalidate the vote, and that its provisions must be considered directory. But as I have before stated, they amount to nothing if so treated. The judges of election may not, when they come to count the votes, be authorized to refuse the counting of such as are proscribed by this section, if any such be cast, in the absence of a statutory provision to that effect, for they then act in a merely ministerial capacity; but their power, when acting as judges, to reject the same, if offered, is not, I think, to be doubted. If they are not possessed of such power because not expressly given, then, if an elector should offer a wooden ballot, or one of any other material, too large to go into the ballot-box, the judges of election may not reject it, for the same reason. When the matter of such ballots come before a court to be passed upon, the court is not limited to the powers of a mere canvassing board.
But it is by no means a uniform rule, nor even a safe guide, that a statute containing no negative words is to be treated as directory. The nature of its provisions, its language, and the end to be attained, must be looked after. “Affirmative words may, and often do, imply a
. It is sometimes very convenient to call the requirements of a statute directory. In Briggs v. Georgia, 15 Vt. 61, Hebard, J., criticising such practice, says: “I am not very well satisfied with the summary mode of getting rid of a statutory provision, by calling it directory. If one positive requirement and provision of a statute may be avoided in that way, we see no reason why another may not.”
The law does not provide the ballot for the voter. It leaves that matter to him, and he therefore has control over it. The preparation and tender of a lawful ballot, except where such tender may be excused, is a condition precedent to the voter’s right to have his ballot received. The voter himself may not complain, nor any one for him, if he loses his vote under such circumstances, for it is his own act which brings about the result. In the case of Kirk v. Rhoades, 46 Cal. 399, under a statute regulating the size and form of ballots and the kind of paper to be used, it was held that as to those things over which the voter has control the law is mandatory, and as to such things as are not within his control it should be held directory. This case is cited with approval in McCrary, Elect. (2d ed.) section 403. I approve the rule, but would include more things as being under the control of the voter than is done in that case. The voter should equip himself with a proper ballot. The' law permits him to use a written or printed ballot. If he neglects to provide himself with a ballot, and relies wholly upon its being furnished him by others on election day
I think the matters complained of, as to the return made of the election from Wilde precinct, and as to the return from Las Animas precinct, are hut irregularities which could not, under the evidence, be held to invalidate such returns.
In reference to the charges and counter-charges of
In my opinion the judgment should be affirmed.
Reversed,
Rehearing
ON PETITION FOR REHEARING.
Upon further examination, we see no occasion to change the views heretofore expressed in the Opinion of Commissioner Stallcup. See State v. Wolf, 20 Pac. Rep. 316 et seq., reviewing State v. McKinnon, 8 Or. 494. The petition for a rehearing is denied.
Denied.
Helm, C. J., dissenting.
