99 P. 1116 | Wyo. | 1909
This case comes to this court on error from a judgment of the district court sitting within and for Carbon County, granting a peremptory writ of mandamus requiring the county' canvassing board of said county to assemble and convene and proceed to count and record and enter upon the proper poll sheets as required by law, 13 ballots cast by electors of said county who were absent from their polling precincts on the day of election, viz,: Nov. 3, 1908, which ballots were returned to the clerk of said county and had been opened by said canvassing board, and to include the result of said count in the abstract of votes cast for the office of sheriff. The judgment and peremptory writ required said board to assemble and convene on the 9th day of December; 1908, at the hour of 10 o’clock a. m., and to make known to said district court the manner of their execution of said writ on the 10th day of December, 1908.' The suit was brought in the name of the State on the relation of D. B. Campbell, said relator having been a candidate for the office of sheriff of such county at said general election.
The remaining provisions of the act involved in the consideration of the questions presented are as follows:
“Sec. 2. Such elector must obtain from the registration officers of the precinct in which he is entitled to vote a certificate showing that such elector is entitled to vote, giving the name and residence of such elector, also the number of the registration as appears upon the registration books of such precinct, and if any elector so applying to vote whose place of residence is in a precinct where prior registration is by law not required, then such elector must furnish such judges of election his affidavit taken before the county clerk of his county, which affidavit shall show the name of such elector, his business and occupation, his place of. residence and that such residence is located in a precinct where prior registration is not required by law.”’
• “Sec. 3. The voter so entitled to vote shall present himself at the polls in any precinct in the state where he may be on such election day, and during voting hours, and make and subscribe before one of the judges of election, an affidavit in substance as follows:
“The State of Wyoming, County of., ss.
“I,., do solemnly swear (or affirm) that. I have actually, and not constructively, been a bona fide resident of the State of Wyoming one year, and of the County of.sixty days next preceding this date; that*384 I am an actual resident of Polling Precinct No., in Election District No., in said county (or in the city of.), and am in all respects a duly qualified elector of said county and precinct; that I am a., and that because of my duties (or occupation or business) as such., I am required to be absent from my county (or precinct) on this day, and have not had and will have no opportunity to vote there; and that I have not voted elsewhere at this election.”
“Any judge of election in any precinct in this state is hereby authorized to administer the oath and take and certify such affidavit. Thereupon the affiant shall be given a blank official ballot, as in the case of a resident voter, and shall mark the same as any 'resident voter may, and shall fold the same and hand it to the judges, as in the case of a resident voter, but such ballot shall not be deposited in the ballot box nor entered on the poll books. It shall, together with said affidavit, be securely sealed in an envelope, upon the back of which one of the judges shall write: ‘The ballot of '.., an absent voter of Polling Precinct No., in Election District No., in the County of. (or in the City of.),’ which shall be signed by one of the judges, a copy of which affidavit the said judges shall retain with the other affidavits and papers in connection with their duties as such.”
“Sec. 4. All such envelopes shall, by the judges of election, be mailed to the county clerks of the county where such elector claims residence not later than the next succeeding day.”
“Sec. 5. The said county clerk of the county in which said absent voter resides shall receive said ballot, and shall safely keep and preserve the same unopened in his office until the county canvassing board meet to canvass the vote according to law, at which time, at two o’clock in the afternoon of the first day of the meeting of said canvassing board, any two electors, residents of the precinct in which such elector claims residence, may appear before said can-*385 vassmg board and challenge such voter’s right to vote at such election. When such elector shall establish his right to so - vote to the satisfaction of said canvassing board in accordance with the election laws of Wyoming. Should no such challengers appear during the first day of meeting of said board, they shall not be permitted to so appear thereafter, should the contention of such challengers be by said board sustained, then said sealed envelope shall be returned to said elector, and the said county canvassing board, in the presence of said county clerk and no other person, shall open all envelopes not so challenged and record the said' ballot upon the poll sheet of the proper precinct or district in their possession, in the same manner as clerks of election record votes, and in so canvassing said vote the said canvassing board shall count the votes of all absent voters taken as herein provided, and add the same to the total of the poll sheet, in arriving at the total result of the election in the precinct, or election district, where said voter resides.”
“Sec. 6. Said ballot, when so opened by the canvassing board, shall be sealed in an envelope with the endorsement thereon: ‘Vote of absent voter of Polling Precinct No., in Election District No., in the County of. (or in the City of.),’ and the same shall be kept in the county clerk’s office as other ballots are kept until destroyed according to law; and in case of a contested election the same may be counted and opened as in other cases. The said board of canvassers and the county clerk of each county wherein any vote of any absent voter is received, as herein provided, shall keep the fact of such vote and persons for whom the same is recorded and contents thereof secret and shall not reveal or divulge the same.”
The petition alleges the occurrence of a general election on the 3rd day of November, T908, for the election of county officers of said county, and among others the office of sheriff. That the relator was the regularly nominated candidate of the Democratic party of said county, for said office, that his
The petition further alleges that at said election votes were cast by twenty-three legal voters of said Carbon County at precincts other than those in which said elector resided “in accordance with the provisions of Chapter 88 of the Session Laws of the State of Wyoming, passed by the Eighth State Legislature, generally known as the Session Laws of 1905, and said ballots so cast by said absent voters were sealed in envelopes and transmitted to and received by the said John Pratley, county clerk of Carbon County.” That no' challengers appeared during the first day of the meeting of said canvassing board as provided in Section 5 of said act, “and thereupon upon the second day of-the session of-said Board, to-wit: on the 17th day of November, 1908, the said defendants so sitting as a board of county canvassers
It is then alleged as follows: “that the relator, although given no oportunity whatever to examine any of the said fourteen ballots which the said defendants refused and still refuse to count, so that he cannot positively say for whom each of the said ballots for the office of sheriff were cast, still he has reason to believe and does believe that a majority of said ballots were cast for him, the said D. B. Campbell, and against the said Walter S. Hilands for the office of sheriff of Carbon County, and that if said fourteen ballots were counted by said defendants as such county canvassing board, the said relator, D. B. Campbell, would be shown to have received a majority of all of the votes cast at said election, both those regularly returned from the various precincts in Carbon County and those cast by the absent voters as aforesaid, and would be entitled to receive the certificate of election to the office of sheriff of Carbon County.”
It is alleged that said defendants intend to speedily make abstract of said votes cast at said election, including the
On the 20th day of November, 1908, the defendants filed a motion that the petition be made more definite and certain, and on the 3rd day of December, 1908, by leave of court, withdrew said motion and filed a return to the alternative Writ, and thereupon, on the same day the relator filed a demurrer to said return which was regularly heard upon that date and on the following day, December 4, 1908, said demurrer was sustained, to which ruling the defendants excepted. Thereupon, the defendants elected to stand upon their return, and refused to further plead, and an order was entered for a peremptory writ to issue, to which ruling also the defendants excepted, and such writ was thereupon issued.
The petition in error was filed in this court on December 7, 1908, and thereupon an order was made by the chief justice staying execution of said judgment and writ upon certain terms unnecessary to mention, which terms were complied with.
It was admitted by the return that on the second day of the session the said canvassing board proceeded to open the envelopes containing the said ballots cast by the said twenty-two persons, but it was denied that each of the envelopes so opened contained a legal and lawful ballot. The return then alleged that at the time of the issuance of the alternative writ the defendants were without knowledge as to whether the relator and the said Hilands received the number of votes stated in the petition, but that said defendants as such canvassing board had not then completed its duty of canvassing the returns, there still remaining uncanvassed the returns of four precincts. It was further alleged that the defendants as such county canvassing board on the 17th day of November, 1908, proceeded in secret session as required by law to open all the envelopes received by the county clerk, to-wit: the twenty-two envelopes received by the county clerk which were presumed by the clerk to have been returned as containing and to contain the ballots of absent voters; that nine of said envelopes so opened were found by said board to contain ballots cast in accordance with the provisions of Chapter 88 of the Laws of 1905; that said board duly inspected and considered the remaining thirteen votes alleged to have been cast by absent voters at precincts other than those of their residence, “and upon careful inspection and consideration of those ballots these defendants found that the said
That one ballot was not accompanied by a certificate from the registry agent of any election district in Carbon County where prior registration was made as by law required, nor was there any affidavit accompanying said ballot from the county clerk of said county as is required by law in the case of an elector applying to vote whose place of residence is in a precinct or district where prior registration is not required, nor was affidavit made and subscribed to before the judges of election or any of them by the person- applying to vote setting forth the facts as required by Section three of said act, but said ballot was accompanied by an affidavit required by law to be made by a person voting in his own precinct where prior registration is not required by law.
That six of the thirteen ballots were unaccompanied by either a certificate or affidavit from the county clerk or any registry agent of Carbon County as required by Section 2 of the act aforesaid, or by any affidavit of the person voting as required by Section 3 of said act, but that each of said six ballots was accompanied by an affidavit which is required by law to be made by a voter in a precinct where registration is by law required who was unable to register during the last period of registration by reason of absence.
That four of said ballots were not accompanied by affidavits taken before the county clerk of Carbon County or by certificates from any board of any registry agents as required by Section two of said act of 1905, nor any affidavit as required by Section 3 of said act, but that each of said four ballots was accompanied by an affidavit from judges of election in the precinct in which said ballots were supposed to have been cast, setting forth in said affidavits that said persons so voting were bona fide electors
That upon the envelope containing one ballot the signature to the statement endorsed thereon was not followed by the words “Judge o’f Election,” and that said envelope was delivered to the county clerk by a courier in person and not by mail as required by Section four of the act of 1905; that the ballot contained in said envelope had what was presumed to be the official endorsement printed on the back thereof as provided by Section 336 of the Revised Statutes of 1899, but not the name or initials of any judge of election, either directly under the endorsement or otherwise.
That one ballot was unaccompanied by any certificate or affidavit from the county clerk or from any board of registry agents of said Carbon County, or any affidavit whatever.
Following a statement of the reasons upon which said thirteen ballots were found unlawful, illegal and void, it was alleged in the return that the said canvassing board, by unanimous vote, rejected said thirteen ballots and each of them, and declared that they ought not to be counted as legal votes, and that thereupon each of said thirteen ballots was excluded from the count of said canvassing board. It is admitted that from the canvass and count of the nine absent votes made by said board Walter S. Hilands received five and the relator three votes.-
It was further alleged by the return that the defendants proceeded to complete the canvass of all the election returns made from the various precincts of Carbon County by said absent voters and to tabulate and make an abstract of said votes, and that thereupon it appeared to said canvassers, and they so found that Walter S. Hilands received the largest number of. votes for the office of sheriff and that he was thereupon declared by said board to be duly
It thus appears that after the canvassing board had opened the envelopes containing the twenty-two ballots referred to, and counted nine of them, giving to the relator three of the votes so counted and the opposing candidate five, and before the completion of their labors as such board, the alternative writ was issued; and by the return of the sheriff endorsed upon such writ it is shown that it was served on the date of its issuance upon two of the members of the board, viz: the two justices of the peace, and on November 23, 1908, upon the county clerk. It also appears by the return of the defendants to the writ that they did not finally adjourn until November 25, 1908, and that they then adjourned without counting and including in their canvass and abstract either of the thirteen ballots in dispute. Without counting said thirteen ballots, or any of them, Hilands was found and declared to be elected, and a certificate of election was issued to him. The demurrer to the return challenged the sufficiency of the reasons set forth therein for the neglect and refusal of the board to count said ballots and include such count in their abstract of the votes cast at said election for the office of sheriff. The question here, therefore, is whether the demurrer was ■or was not properly sustained. It may be conceded arguendo, as contended by counsel for plaintiffs in error, that if the reason given for excluding any one of the contested ballots is good the demurrer should have been overruled.
The county clerk, to whom the envelopes containing ballots cast under the provisions of the ,act of 1905 are
The votes cast and deposited in the ballot box in any precinct by resident voters are counted by the judges and clerks of election at such precinct. (Id. Sec. 340.) When such votes have been examined and counted the clerks are required to set down in their poll books the total number of persons voting in such precinct; the name of every person voted for, the office for which such person received such vote, and the number he received. It is provided
When a person offering to vote at an election is challenged he cannot vote until he shall take a prescribed oath to the effect that he is a qualified voter, and also deliver to the judges of election an affidavit of two qualified electors of that precinct, stating certain prescribed facts, to the effect that the person so offering to vote is qualified. After the name of such a person .who has voted the clerks are required to write on the poll list the word “sworn,” and
We do not understand it to be contended that in making abstracts of the votes shown by precinct returns the canvassing board is authorized to examine and recount the ballots returned by the election officers, or to go behind the entry made in the poll books showing the result of the count of the votes as made by the judges and clerks. Nor that it is any part of the duty of the board as to precinct returns to examine and pass upon the sufficiency of the affidavits of challenged or unregistered voters, or those of voters in precincts where prior registration is not required, although such affidavits are required to be sent with the poll books to the county clerk. The board must, of course, determine upon the genuineness of the returns. In other respects their duty as to precinct returns is merely ministerial, requiring a setting down of the number of votes (returned as cast in the various precincts for the different offices, or upon questions that may have been submitted, and calculating the total of such votes. (15 Cyc. 379; 10
The certificate or affidavit provided for in Section 2 is not required by the statute to be enclosed wi.h the ballot, nor is its return in any manner to the county clerk provided for. The obvious purpose of the section is lo require the one offering to vote to .furnish evidence to the judges of the fact of his registration or that he resides in a precinct where prior registration is not required. Since that evidence so required to be furnished to the judges of election where the vote is offered is not required to be enclosed or returned with the ballot, it is clear that the fact that it does not accompany the ballot would not justify its rejection or exclusion by the board, or the presumption that the required certificate or affidavit was not properly furnished.
The affidavit prescribed by Section 3 is required to be enclosed in a sealed envelope together with the ballot, and so sent to the proper county clerk. Upon his making that affidavit the person so offering to vote becomes entitled to receive from the judges a blank official ballot, and to mark, fold-and hand the same to the judges, the same as a resident voter, assuming that he has furnished the evidence required by Section 2 as to his prior registration or his residence in a precinct where that is not necessary. The duty of enclosing the affidavit with the ballot seems to devolve upon the judges, and the failure of those officers to perform that duty ought not to be held sufficient ground for an exclusion of the ballot from the count to be made by the canvassing board, thus resulting in disfranchising the voter, unless, at least, the statute has so declared either expressly or by clear implication. To ascertain whether that result is, in such case, declared or clearly contemplated by the statute it will be necessary to consider Sections 5
Section 5 provides in substance that the county clerk shall safely keep and preserve the envelope so received unopened in his office until the meeting of the canvassing board; that at a stated hour in the afternoon of the first day of the meeting of the board, any two resident electors of the precinct in which the elector having so voted claims residence may appear and “challenge such voter’s right to vote at such election,” whereupon the elector shall establish “his right to vote” to the satisfaction of the' board “in accordance with the election laws of Wyoming.” In case no such challengers appear on the first day of such meeting they shall not be permitted to so appear thereafter. Where such a challenge is made and sustained the sealed envelope shall be returned to the elector. That the board shall open all envelopes not so challenged “and record the said ballot upon the poll-sheet of the proper precinct or district in their possession, in the same manner as clerks of election record votes, and in so canvassing said vote the said canvassing board shall count the votes of all. absent voters taken as herein provided, and add the same to the total of the poll-sheet, in arriving at the total result of the election in the precinct, or election district, where said voter resides.”
Section 6 provides that when opened by the board the ballot shall.be sealed in an envelope endorsed: “Vote of absent voter of Polling Precinct No. in Election District No., in the County of.(or in the city of.),” and that “the same shall be kept in the county clerk’s office as other ■ ballots are kept until destroyed according to law; am,d in case of a contested
By the express provisions of Section 5 a challenge is only permitted in a stated manner on the first day of the meeting of the board, while the ballot remains unopened, and then only of the “voter’s right to vote at such election.” In the case at bar it appears that no such challenge was offered in the manner provided for. We assume that the board had the right in the first place- to determine whether the endorsement upon the envelope as received by the county clerk was genuine, or whether any envelope was received in such a manner as to show fraud in its transmission. But it is evident that all the envelopes here in question were regarded as genuine returns of the votes of absent voters, since they were all opened, notwithstanding that it is alleged that the signature to the endorsement upon one of the envelopes was not followed by the words “judge of election.” Whatever discretion the board had as to opening the ballots was exercised.
Upon opening the envelopes it became the duty of the board by express command of the statute to record the ballot upon the poll sheet of the proper precinct' or district in their possession “in the same manner as clerks of election record votes,” which obviously means that the names
It is clear we think that other or different affidavits than those prescribed by Section 3 found in the envelope with a ballot cast by an absent voter under the statute in question
The argument that the board may upon opening an envelope containing the ballot of an absent voter determine from the fact that the affidavit is not therein enclosed that the voter was without right to vote, and on that ground exclude the ballot from their count, disregards the plain provisions of Section 5 and misinterprets the manifest intent of those provisions. When one offering to vote at his own precinct is challenged he is permitted to vote upon furnishing his affidavit and the corroborating affidavits provided for by the statute. The analogous provision of the statute in question requires a challenge to be made before the opening of the envelope and the decision of the board
In view of the statute providing that informality in the delivery of precinct returns shall not invalidate the vote of the precinct in the absence of fraud, and the general rule that in the absence of suspicious circumstances a mere irregularity in such delivery will not warrant a rejection of the returns, unless a non-compliance with the method directed by statute is expressly declared to be fatal, the objection that one of the envelopes was delivered to the clerk in person by a courier instead of by mail, and others were mailed to another officer of the county mistakenly named as the county clerk cannot be held to authorize the rejection of such votes, since there is no charge of fraud in their transmission, but on the contrary the clerk received them, and the board being evidently satisfied as to their genuineness, accepted and opened them.
The precise questions here presented do not appear to have been before the supreme court of the State of Kansas under this statute, but in the case of Sharpless v. Buckles, 70 Pac. 886, that court was called upon to decide whether or not a county canvassing board could be required by mandamus to reconvene and recanvass the absent vote and to exclude such vote from their count and canvass on the ground of the alleged unconstitutionality of the statute.
We are aware of no statute in any other state similar to the one in question, but the decisions upon analogous questions seem to amply support our conclusions with reference to the right of the canvassing board to reject the vote for the failure of the judges of election to return with the ballot the prescribed affidavit. Among other authorities we cite the following: Clark v. Robinson, 88 Ill. 498. That was a contested election case in which certain votes which had been counted for one of the parties were objected to for the reason that the affidavits of the qualifications of ■ the persons casting the votes which were received by the judges of election were defective in the particular that the persons by whose oaths the affidaivts were supported were not registered voters and householders as required by the statute. Some of the persons were shown affirmatively to have been legal voters. As to the others there was no evidence upon-the subject. It was held that the presumption must be, the .votes having been received, that the persons were legal voters, and the court said: “The presumption of the legality of the vote in no way depends upon the omission to challenge or object to it, or any presumed knowledge of the judges of election, but it arises from the fact of the deposition of the ballot in the ballot-box. A vote so deposited is presumed to be a legal vote, until there is evidence to the contrary.” (Peebles v. Commissioners, 82
This disposes of the grounds alleged by the board as cause for refusing to count the thirteen ballots, except as to one
“No officer shall deposit in th.e ballot box any ballot except a lawful one. A lawful ballot is an official ballot officially stamped and marked with the initials or name of a judge of election.” This section has not been specifically amended.
A provision which became known as Section 334 of said Revised Statutes read at the time of the decision in the case aforesaid, as follows: “No judge of election shall deposit in any ballot box any ballot upon which the official endorsement herein provided for does not appear.” And a provision that became a part of Section 341, and controlled the counting of votes by the judges and clerks of the election, was as follows:
“In the canvass of the votes any ballot which is not endorsed by the official stamp or has not the name or initials of the judge of election as provided in this title, shall be void, and shall not be counted.”
Section 336, which remains in force, provides that before delivering any ballot to an elector the judges shall print on the back and near the top of the ballot with a rubber or other stamp provided for that purpose the designation “Official Ballot,” and certain other words required by Section 290, designating the county, precinct, date of election, and the name and title of the clerk who furnished the tickets, and, further, that one of the judges shall write his name or initials directly under said official stamp.
In 1907, Sections 334 and 341 were amended and reenacted, so that Section 334 instead of positively prohibiting the deposit in the box of a ballot not properly endorsed, now reads as follows:
“It will be the duty of the judges of election to see that the official endorsement herein provided for appears upon each ballot before the same is deposited in the ballot box.” (Laws of 1907, Ch. 54, Sec. 1.)
Section 341 was amended by Section 2 of the same act, so that as to ballots in the box not properly endorsed the section now provides:
“In the canvass of votes if it shall appear that there is a greater number of ballots in the box than the. number called for by the poll list, it shall be the duty of the judges to reject any ballots which are not endorsed with the official stamp or which have not endorsed thereon the initials or name of the judge of election, as provided in this title, until the number of ballots in the box shall agree with the number on the poll list.” By Section 4 of said amendatory act it is provided that all acts and parts of acts “in conflict with the provisions of this act are hereby repealed.”
There can be no question about the purpose of the legislature in enacting the amendatory statute of 1907, and it is to be construed with the legislative intent in view. To more plainly show the intention of the law Section 3 provides that nothing contained in the act shall be so construed as to change, amend or modify any existing act in the determination or decision of any election contest “now pending,” but Sections 334 and 341 as amended “by this act,” and the other statutes amended, modified or repeaeld “by any of the provisions of this act,” shall be continued in force
As the act of 1907 changed the provisions of Section 341, so that instead of rendering a ballot not properly .endorsed void and prohibiting its being counted, it provides for rejecting such ballots “until” the number of ballots in the box and the number of names in the poll list agree, and Section 334 was materially changed in language, it is clear that it was intended to avoid the effect as declared in the case of Slaymaker v. Phillips, supra, of the mandatory language of the sections as they stood before the amendment. And that result has been accomplished it seems to us by the change made in the sections aforesaid. Possibly Section 334, as amended, might be held mandatory in language, but without some declaration rendering non-compliance with its provisions by the judges of electon as necessarily fatal to a ballot, it is doubtful, at least, whether standing alone it could be construed as having that effect. However, by the amended Section 341, it seems to be declared that the only effect of depositing ballots in the box, not properly endorsed, is the rejection of a sufficient number of such ballots, in case there are more ballots in the box than the number called for by the poll list, to make the list and number of ballots agree. Section 285 is left standing without specific amendment, but if it was previously to be construed. as mandatory, so as to vitiate a ballot placed in the box in violation of its provisions, its construction is materially affected by the amended Sections 333 and 341, and the repealing clause of the amendatory act of 1907. The duty imposed upon the judges of election to deposit in the box only such ballots as are endorsed in the manner provided by law should be faithfully complied with, but as a result of the recent amendments, except as now provided by Section 341, as amended, a ballot accepted and deposited is not to be invalidated and excluded from the count, because of
It follows that the demurrer to the return was properly sustained, and that the judgment must be affirmed. At the time the cause was commenced and the alternative writ issued the- board, it is conceded, had not completed the labor of canvassing the vote and returns, and it appears that when they thereafter adjourned, they had not completed such labor, since they omitted to count and canvass the votes here in question. Not having counted and abstracted those votes nor shown sufficient cause for not doing- so, the peremptory writ was properly granted. It will be ordered that said canvassing board and the members thereof, the defendants below, and plaintiffs in error here, assemble and reconvene within ten days and proceed to perform the duty required by the peremptory writ, and that forthwith thereafter they make due return to the said district court of their performance of said duty.