This is an election contest, which originated in the County of Morton, and which involves the title to the office of county auditor of that county. The facts which we regard as decisive of the case are simple, and are not disputed. The plaintiff and defendant were the only candidates for said office at a general election held in said county in November, 1898, and the names of no other persons oppeared on the official ballots as a candidate for said office. The votes cast at said election were canvassed by the county canvassing board, and as a result of such canvass it was found and determined by the canvassers that the plaintiff had received 706 votes for said office, and that the defendant had received 719 votes for said office, and thereafter á certificate of election in due form, based upon said official canvass, was delivered to the defendant by the county auditor. At the trial in the court below the ballot boxes used at said election in a number of the voting precincts of said county were brought into court and opened, and the ballots found therein were counted and • considered in open court. As a result of such count and consideration, a number of important questions bearing upon the regularity of the election were developed; but, in the view which the’Court has taken of the undisputed facts embodied in this record, it will be unnecessary, in this opinion,' to
Counsel concede that if the ballots cast in said precinct, and which were counted and credited to the plaintiff by the canvassers, were illegal ballots, and should not have been so counted or credited, the plaintiff is not entitled to said office, and that the defendant was properly given the certificate of election. As we have reached tile conclusion, for reasons hereafter to be stated, that the. ballots cast in the precinct of Antelope Creek were not official ballots, and hence that the same were improperly counted by the canvassers, we shall not have occasion, in view of the conceded facts, to discuss other questions presented by the record. With respect to the ballots cast at said precinct, the trial court finds the decisive fact in the following language: “That in Antelope Creek precinct 41 ballots were cast for plaintiff, and no ballot was cast for defendant; that none of said ballots had indorsed thereon, or had thereon at any place, the initials of the inspector, or of one of the judges of the election, in said Antelope Creek precinct, as required by section 515, Rev. Codes; that the board of county canvassers, in canvassing said votes, canvassed for and allowed to plaintiff all of said 41 votes in said Antelope Creek precinct, and canvassed for and allowed to defendant no vote in said Antelope Creek precinct.” Upon the facts so found we are called upon to determine whether, under existing laws regulating the elective franchise in this state, a ballot not having upon it the initials of either the inspector or judge of the election precinct in which it was cast is a lawful ballot, despite such omission.
The decision of ''this question will involve a construction of certain sections of the state constitution, and chapter 8 of the Political Code, and particularly section 524 of the Revised Codes. Said section embraces the following provisions: In the canvass of the votes any ballot which is not indorsed as provided in this chapter by the official stamp and initials shall be void and shall not be counted.” The legislative intent, as embodied in the statute, is clear and unmistakable; and hence it will be unnecessary, and would be improper, to resort to rules of construction in its interpretation. Its mandate is explicit and imperative. According to its terms, if its terms are to govern,, it was the plain and obvious duty of the canvassers to reject, and not count, the ballots oast at the precinct of Antelope Creek. Nor can we discover any ground for construing this section as a directory enactment. Had the statute simply declared that the ballot should be authenticated as the official ballot by placing thereon the indorsements as required by section 515, Rev. Codes, and had stopped there, and had wholly omitted to declare the consequences of an omission to so indorse them, the duty oí .considering whether or not this provision was directory or mandatory might, in the supposed case, have been cast upon the courts. The case as it stands, however, forbids that this Court should enter
This brings us to the criticism of the statute which is made by counsel in behalf of the plaintiff. Counsel contend that the statute is unconstitutional, and cite in support of this point a case which is clearly authority for plaintiff’s contention. See Moyer v. Van De Vanter (Wash.) 41 Pac. 60. And we may as well státe here that the only other case where the constitutional question involved here is directly raised, which has come to our notice, is a ,case decided in Wyoming. See Slaymaker v. Phillips, 42 Pac. Rep. 1049. Turning to the state constitution, we find that section 121 thereof defines and describes the classes of persons who shall be deemed qualified electors. This is the entire scope and purpose of the section, and no attempt is made, in this provision of the organic law, either to regulate or restrict the exercise of the voting privilege which it confers. It gives the right to vote to certain classes of the inhabitants of the state, and there it stops. Surely no one can reasonably claim that the voters named and enfranchised by this section of the constitution may, without the passage of any statute whatever regulating the voting franchise, proceed to vote and have their votes counted. It needs no argument to demonstrate that this feature of the constitution is not self-executing. The only other section of the instrument wTich is at all pertinent to the present inquiry is section 129, which reads as follows: “All elections of the people shall be by secret ballot, subject to such regulations as shall be provided by law.” The effect of these two sections of the constitution, when read together, is to confer upon certain inhabitants of the state the privilege of voting by a' secret ballot; but the last clause of section 129 expressly looks forward to legislation, and declares that the voting privilege is to be regulated, and, in terms, is to be “subject to such regulations as shall be provided by law.” This provision is not at all unusual in state constitutions. It is well known that the voting franchise is subject to legislative control to a greater or less extent in all the states of the United States. On the other hand, it is elementary that any law would be at once pronounced unconstitutional and void by the courts which has the effect of disfranchising a person to whom the constitution gives the right to vote. This principle -was applied in a case decided by this Court. State v. Denoyer, 6 N. D. 586, 72 N. W. Rep. 1014.
But in the case at bar it is not claimed that the statute (section 524) in terms deprives any voter of his constitutional privilege, or that it necessarily so operated. On the contray, counsel’s utmost contention is that an enforcement of the statute as it reads may in some cases operate, and in the case at bar will operate, practically to deprive electors of their constitutional right to vote, and to have their votes counted. But this cannot be made a test of the validity of any regulative statute. There are many regulative provisions
Other illustrations will suggest themselves, but they are unnecessary, because the right of some legislative control over the voting privilege secured by state constitutions is conceded. In fact, there could be no valid election held under the constitution of this state without affirmative .legislation providing the requisite machinery for holding the same. A mere naked constitutional right to vote is absolutely valueless, without some supplemental action on the part of the legislature. See 6 Am. & Eng. Enc. Law (2d Ed.) p. 563, note 4, and Munroe v. Wells, 83 Md. 505, 35 Atl. 142. But the case cited by plaintiff, — Moyer v. Van De Vanter, supra, — while conceding to the lawmaker the general right of legislative control, holds that the prohibition against the counting of votes on which the initials of a precinct official are not written is an unreasonable regulation, and, as it may possibly operate, in isolated instances, to disfranchise the voter, it is therefore unconstitutional and void. But, in our judgment, this reasoning is fallacious, and, moreover, trenches upon very dangerous ground. It proceeds upon the false notion that it is the province of the courts to enter the conceded domain of the legislature, and, upon a question of the expediency of a given regulative measure, substitute the judgment of the courts for that of the constitutional body which has the original right to make the regulation. Upon this point Judge Cooley voices the settled rule. In commenting upon the province of the judiciary, that learned jurist said: “It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power.” See Cooley, Const. Law (5th Ed.) p. 202, and note 1. See, also, 6 Am. & Eng. Enc. Law (2d Ed.) p. 1086, and cases cited in note 1.
The capital purpose of these statutes, manifestly, is to provide the voter with an official ballot, and to enable him to make sure that he gets such ballot. Provision is made, not only that an official shall deliver such ballot to the voter, but, with the same purpose in view, the law requires the official to indorse the ballot so delivered, not merely with an official stamp, with which he is provided, but with his own initials as well. This legislation, therefore, places it within the power of every voter to determine whether a ballot which is handed to him by a precinct officer is or is not an official ballot. If it is not stamped and initialed as the statute directs, it is not an official ballot, and hence cannot lawfully be voted, or, if voted, cannot be lawfully counted. A glance at the ballot will at once apprise the voter whether the ballot has been so indorsed as to be
Counsel argue that the omission to indorse the officer’s initials on the ballot, being the omission of an official act merely, ought not to operate to annul the vote. But,, if this argument is sound as to the initials, we can see no reason why it is 'not equally valid as to the matter of printing on the ballots the words contained in the official stamp, which the state provides and requires to be stamped on the ballot before it is delivered to the voter. The statute is equally plain, and' its mandate equally imperative, in the one case as in the other; and the object in view in these two provisions is one and the same. That object is — First, to give the voter an official ballot which he may surely know to be such; and, second, to enable the public to identify the actual ballot east in the event of an election contest. But what would be the result to this carefully devised and well-approved election law if the courts should hold these statutory requirements to be not binding either upon the voter or upon the precinct officials; that is to say, -not binding in the sense that their nonobservance would not invalidate the ballot? We think such holdings would very soon destroy all that is valuable in the notable ballot reform which is embodied in the Australian system of voting. If the methods of securing the sanctity of the ballot now devised by legislative wisdom are to be annulled by mere judicial construction, we can'conceive of none others which could not as readily be disposed of by the same false method of reasoning. If experience should show that the' provisions of section 524 are unnecessarily rigid, — we do* not think it will,— then it will become the duty of the legislature to intervene and devise some different regulation of the elective franchise.
We do not care to further elaborate upon the issues. All that
It follows, from the authorities we have cited, that the board of commissioners improperly canvassed and counted the ballots cast at said precinct of Antelope Creek; said ballots not having been indorsed with the initials of any of the precinct officers. The judgment of the court below must be reversed', and the court is directed to dismiss this contest.