29 Mont. 548 | Mont. | 1904
prepared tbe opinion for the court-.
Election contest. Clarence R. Lane, an elector of Rosebud county, contests the right of Charles W. Bailey to hold the office of county clerk. Bailey and one Roderick McRae were opposing candidates for the office, Bailey being the democratic, and McRae the republican, candidate. The canvassing board found that B:ailey had received a majority of the votesi oast for the office of county clerk, and declared him elected. As ground for contest, Lane alleged that a number of persons, exceeding con-testee’s majority, who were not entitled to vote in said county, had voted for contestee; that they were not bona» fide residents thereof, but had been, brought into the county; thirty days of thereabouts, prior to the election, pursuant to a conspiracy entered into by James S'. Hopkins, Fred Ramsey, William McCarthy, William J. Nix and others, to colonize Rosebud county by illegally importing and bringing into the county large numbers of persons shortly before the- election, and causing them to be registered- and to vote the democratic ticket, and for said
To the complaint the contestee filed an answer which, in addition to a general denial, alleged that Bailey was in fact elected over McRae' by a, majority o.f 82 legal votes, for the reason that at Hathaway precinct 18 persons, and at Rosebud precinct 49 persons, had illegally registered without ever having taken or subscribed, or offered to take or subscribe, the oath prescribed by Section 1209 of the Political Code, as amended. This the contestant denied in his reply, and further alleged that said persons were in fact duly qualified voters in all respects, and that if they did not take the oath it was the fault of the registry agent, and not the fault of the voters.
The pleadings are of great length, and only the gist of the issues' is given here. Trial was to the court, sitting without a jury. The court found that 24 illegal votes had been cast and counted for the1 contestee, deducted the same from the number of votes received by him, and declared McRae elected, and entitled to the office of county clerk. Prom this judgment the contestee has appealed.
McCrary, in his work on Elections, says: “It is a rule well
Section- 2 of Article VI of the North Carolina Constitution provides that: “It shall be the duty of the, general assembly to provide from time to, time for the registration of all electors, and no person shall be allowed! to vote without registration, or to register, without first taking an oath to support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith.” The supreme court of that state says: “This section of the Constitution provides, that the ‘general assembly’ shall pass registration laws, and that no one shall be entitled to> register without taking an oath, and that no one shall vote whoi is not registered. This provision of the Constitution, that no one shall be entitled to register without taking an oath to support the Constitution of the state and of the United States, is directed to the registrars. It must be to them and to them alone, as is said by this court in Southerland v. Goldsboro, 96 N. C. 49, 1 S. E. 160. But if the registrar, through inadvertence, registers a qualified voter, who, is entitled to register and vote, without administering the prescribed oath to him, shall he, for this negligence of the officer, be deprived of his right to vote, and thereby the will of the maj'ority defeated? And if this omission was not through inadvertence, but with a view to- entrap the voter and thus defraud him out of his vote, it is much more the reason why he should not be, and that such methods should not be allowed to prevail. We do not hold that, where a registrar proposed to- administer the oath, and tire party wishing to be registered refuses to take the oath, it is, the duty of the registrar to register him. We would say that under such circumstances he should not be registered. * * * And a qualified elector cannot be deprived of his right to vote, and the theory of our government that the maj’ority
In State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 Pac. 1,the court adopts the following quotation, from People v. Wood, 148 N. Y. 142, 42 N. E. 536: “W© can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them.” And see State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128,. 83 Am. St. Rep. 573 ; Moyer v. Van De Vanter, 12 Wash. 377, 41 Pac. 60, 29 L. R. A. 670, 50 Am. St. Rep. 900; Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 33 Am. St. Rep. 491.
Election statutes, being intended to promote purity in public elections) to the end that a full and fair expression of the public will may be had, axe remedial and beneficial, and should be liberally construed. We therefore hold that the electors of Hathaway and Eosebud precincts were not disqualified because, through no fault of theirs, they failed to' take the oath prescribed. (Stackpole v. Hallaban, 16 Mont. 40, 40 Pac. 80, 28 L. R. A. 502.)
The correctness of these general principles will not be disputed. In answer to this it is sufficient, to< sa,y that even a cursory inspection of the, transcript discloses that, there was evidence sufficient to justify the conclulsion that the conspiracy charged in the statement of contest did in fact exist; that the conspiracy was for Hie purpose of employing a, sufficient number of men to carry the county in the interest of the Democratic ticket, or a, portion of it; that in furtherance of it a large number of men were employed a little over a. month prior to the election, with the understanding that they were to go into' Rosebud county for the purpose of obtaining employment for one month, and of voting the Democratic ticket; that their expenses were to be paid in traveling to, and from Kosebud, county; that a large number of them actually registered and voted in Rosebud, county; that, indeed, the conspiracy was actually carried out. These men, if the testimony be true1, knew the illegal purposes for which they were employed, perjured themselves in order to obtain registration, violated tlie election laws of the state, and thus became parties to the conspiracy themselves. Their declarations, as well as those of the persons who instigated the unlawful acts (the original conspirators), during the pendency of the conspiracy — while the negotiations for tlie men’s employment were pending, after they were, employed, during the election — and which were germane to the conspiracy, or a part, of the res gestae, are admissible1 in this case. The conspiracy existed as between the parties to- it until all its ends were accomplished. (See State v. Byers, 16 Mont. 565, 41 Pac. 708; Pincus v. Reynolds, 19 Mont. 564, 49 Pac. 145;.
7. Under the rule tbat, where in an election contest it does not appear from tbe direct evidence of tbe voter for whom tbe ballot was cast, circumstantial evidence is; admissible to establish tbe fact (Boyer v. Teague, 106 N. C. 576, 11 S. E. 665, 19 Am. St. Rep. 547; Sorenson v. Sorenson, 189 Ill. 179, 59 N. E. 555; Black v. Pate, 130 Ala. 514, 30 South. 434; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; McCrary on Elections (4th Ed.), p. 363), and for the purpose of establishing tbat a conspiracy existed, contestant introduced considerable testimony tending to show tbat a number of men employed by Ramsey as ranch bands, and who' voted at tbe election, were hired mainly for political'purposes, and not to work on tbe ranch.
Witnesses testified tbat there was no demand for ranch bands in tbe immediate neighborhood of Ramsey’s ranch, and that Ramsey bad no' special use for tbe ten men) be bad there. Testimony was given- tending to prove tbat these ten men, or most •of them, simply “killed time.” Contestee introduced considerable evidence to contradict this line of testimony, and excepted to several rulings of tbe court upon questions bis counsel asked tbe different witnesses.- Eor example, the witness Miller, one of tbe alleged illegal voters who was employed on the Ramsey ranch, and who had qualified himself to answer, was asked: “From your observation, are you able to state whether or not they were kept busy during the time they were there ?” Also: “Erom your experience and observation do you know, and can you state, when a man is doing a day’s, work and is kept busy ?” Contestant objected to these questions as incompetent, and tbe objections, were sustained. This testimony, having been offered in contradiction of that on part of contestant, should have been admitted, and tbe court erred in sustaining the objections,, but the case cannot be reversed on that account. The testimony called for by tbe two questions just quoted related solely to- tbe conduct of the men employed at Ramsey’s ranch, and who voted
An appellate court will not reverse a judgment merely because the lower court committed error; it is only when the error has materially affected appellant’s rights on the merits of the case.
Section 1364 of the Political Code-, as. amended, provides: “Any elector wrho- declares to the judges of election, or when it appears to the judges of election that he cannot read or write or that because of blindness or other physical disability he is unable to' mark his ballot, but for no other causey must upon request receive the assistance of two of the judges, who' shall represent different parties, in the marking thereof, and such judges must certify on the outside thereof that it was so marked with
"Whether the ballot is the best evidence as to how Petrovich voted depends upon whether it may be identified; if it can be identified, it is the best evidence; if it cannot be, then the testimony of one who knows how it was marked is the best evidence. Having shown that the ballot bore the certificate of the judges, in order to introduce the testimony of Terrett it was incumbent upon contestee to show that the ballot could not be identified. If Petrovich’s ballot was the only one bearing the certificate of the judges, Terrett and Marcyes, such certificate would serve to identify it; but if there were several ballots cast a.t Forsyth, under the provisions of Section 1364, supra, all of which bore the certificate; of the said judges, then it is probable that Ptetro-vich’s ballot could not. be identified. No elector shall place any mark upon his ballot by which it may afterwards be identified by him. (Section 1358, Political Code, as amended; Session Laws- 1901, p. 118 et seq.) And the judges should not place any distinguishing marks thereon, except as provided by law; the law evidently contemplates that the. same certificate; in effect, shall be placed upon all ballots to' which the judges, certify. Upon proof that Petrovich’s ballot could be identified, the court could have ordered the same produced, under the provisions of Section 1413 of the Political Code. The court was therefore right in excluding the testimony.
Counsel insist that under our voting system, an absolutely secret ballot is contemplated, and to this end extraordinary precautions are provided" for; bystanders are prohibited from, approaching within a given distance from the voting booth; the voter is prohibited from placing a distinguishing mark upon his ballot; he must retire and mark his ballot alone, and fold it so its contents cannot be discovered. These precautions are provided for the protection of the voter. The design is ho make it impossible for others to prevent him from exercising his own free will. It is generally held that a legal voter may refuse to testify as to how he voted, but this is a privilege he may waive. (Van Winkle v. Crabtree, 34 Ore. 462, 55 Pac. 831, 56 Pac. 74; Boyer y. Teague, 106 N. C. 576, 11 S. E. 665, 10 Am. St. Rep. 547; Black v. Pate, 130 Ala. 514, 30 South. 434; Vallier v. Brakke, 7 S. E. 343, 64 N. W. 180; Dixon v. Orr, 49 Ark. 238, 4 S. W. 774, 4 Am. St. Rep. 42; Cooley’s Constitutional Limitations, 762; McCrary on Elections (4th Ed.), Secs. 438, 491, 492.)
There, is reason in this rule. While public policy requires that all electors be enabled to cast their ballots in absolute secrecy and with the utmost freedom, yet it is also to the public interest that a correct expression of the popular will he ascertained. Hence', when the validity of an election is being inquired into-, legal voters are encouraged to give testimony concerning it. Courts, should give a wide latitude to' such inquiries. Nothing concerns the people nearer than the purity of their elections. A fundamental principle of our government is that the majority shall control. When the popular will is subverted by conspiracies and other illegal practices, the searchlights of the- courts should be.fully turned on.
Dor the foregoing reasons, we are of the opinion that the judgment should be. affirmed.
Nor the reasons given in the foregoing opinion ,the judgment is affirmed.