Nefzger v. D. & St. P. Railway, 36 Iowa 642

36 Iowa 642 | Iowa | 1873

Day, J.

We deem it necessary to consider only the second ground of relief, stated in plaintiff’s petition, to wit: The entire disregard of the provisions of the registry law; for it seems to us that upon that ground, if upon none other, the action of the court below is fully sustained. Section 8, chap. 172, Laws Twelfth General Assembly, provides that “ no vote shall be received at any general or special election, hereafter held in this State, from any person whose name does not appear on the register, unless the person offering to vote shall furnish the judges of election his affidavit, showing that he is a qualified elector, and a proper reason for not appearing, before said board on the day for correcting said register, and prove by the affidavit of a person whose name is on said register that he knows such person to be a resident of such township * The object of the act as declared in its title is to prevent fraudulent voting. Its language is mandatory. It reads, “ no vote shall be received from any person whose name does not appear on the register.” To hold that an elector may vote whose name is not registered would render an observance of the law merely optional, and its provisions nugatory.

In the People v. Kopplekom, 16 Mich. 342, a statute similar to ours was construed, and it was held that the failure to make a registration of voters in a township rendered all the votes received in such township void. In announcing the opinion of the court, Graves, J., said: “ That interpretation, then, which to make valid the votes' of electors, where there has been no registration, would make the act subject to an unexpressed condition, by means of which it could, at any time, be practically extinguished in whole townships, is manifestly opposed to the language and apparent scope, spirit and purpose of the law.” And in State v. Hilmantel, 21 Wis. 566, a like statute was construed and the same conclusion was reached. In this case Dixon, C. J., said: “ And next it is to be observed, that it is a negative statute. It has been said on very high authority, that negative words will make a statute imperative. Dwarris on Statutes, 715, and cases cited. The words of the act are: “ no vote shall be received at any annuul election in the State, unless ” etc. It is difficult to concéive of language more strongly imperative than this. Again, if we consider the mischief complained of, and the remedy provided, it will be seen 'that the forms prescribed are 'of the very essence of the statute. It is entitled, an act to guard against the abuse of the elective franchise, and to preserve the purity of elections, by a registration of electors. Abuses cannot be guarded against, nor rights preserved by statute withóut resorting to proceedings more or less formal.”

The petition alleges an entire disregard of all the requirements of the registry law, and the demurrer' admits these allegations to be true. The court did not err, therefore, in overruling the demurrer and in granting the relief prayed. ‘

Affirmed.