5 Wyo. 453 | Wyo. | 1895
Lead Opinion
This is an election contest. Plaintiff and defendant were candidates for the office of clerk of the district court for Converse County, and defendant had a majority of the votes cast, counted and returned for the office. Plaintiff contests, however, that the ballots cast at the three voting precincts in the county were illegal and void, and should not have been counted, and were counted contrary to express provisions of our statute. If the votes of these precincts were rejected, plaintiff would be elected.
The alleged illegality in the ballots cast at these three precincts consisted in their not having the name or initials of either of the judges of election, upon the back or upon any part of any of the ballots, and in two of the precincts none of the ballots were endorsed with the official stamp, though the stamp was placed upon the face of the ballots at the head of the ballots.
Upon these facts the district court reserves for our decision the following important and difficult questions:
“1. Are the provisions of the election laws of Wyoming which require that the judge of election, before delivering any ballot to an elector, shall print on the back of the ballot the designation ‘Official Ballot/ and the other words provided by said laws, and that one of said judges shall write his name*460 or initials upon the back of each ballot, directory only, or are they mandatory?
“2. Should any of the ballots cast at said election at either of the above named precincts be rejected, and, if so, which of said ballots should be so rejected?
“3. Upon the facts aforesaid, should judgment be entered for the plaintiff or for the defendant?”
Section 110 of- Chapter 80, of the session laws of 1890, provides that the county clerk or clerk of the municipality, in case of a municipal election, shall furnish to the judges of election the proper number of ballots; and provides fur- ■ ther that “he shall also deliver to the said judges a rubber_or other stamp with ink pad for the purpose of stamping or designating the official tickets as hereinafter provided. Said stamp shall contain the words ‘Official Ballot/ the name and number of the polling precinct, the name of the county or municipality as the case may be, and the name and official designation of the clerk who furnishes the tickets.”
Section 119 of the same act provides as follows: ■
“At each election the judges of election shall designate two of said judges who shall deliver the ballots to the qualified electors. Before delivering any ballot to an elector the said judge shall print on the back and near the top of the ballot with a rubber or other stamp provided for that purpose the words ‘Official Ballot/ and the other words on the said stamp as hereinafter provided, and one of the said judges shall write his name or initials upon the back of each ballot and directly under the official stamp.” * * *
Section 130, in so far as it affects the questions before us, provides 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 act, shall be void and shall not be counted.”
There can be no question that this last provision is mandatory. The language that the ballots specified “shall not be counted” requires no construction and admits of none. It seems to be as plain as any words that could be selected.
• But one member of this court insists that this is an unreasonable and' unconstitutional restriction of-the right of suffrage. The majority of the court think differently.
The -duty of courts to pass upon the constitutionality of acts of the legislature is, perhaps, the most delicate duty -they have to perform. Courts may. well hesitate long before declaring an act of -the legislature invalid, or unreasonable to the extent of being unconstitutional, -and then should not do so unless-such conclusion -is necessary mnd unavoidable. The question whether a provision is -reasonable or unreasonable is a question primarily for- the. legislature to’ decide in enacting the law. And it has been held that'it is the duty of the.courts.to enforce-statutory provisions, however unreasonable they may appear.. Flint River Steamboat Co. v. Foster, 5 Ga., 194. In case of- apparent conflict between statutory and constitutional provisions-they should be. harmonized if possible.- But we find no conflict between the statutory provisions under.consideration-and the.constitution in any of its
Section 11 of the constitution imposes further legislative duties in these words: .
“All elections shall he by ballot. The legislature shall provide by law that the names of all candidates for the same office to be voted for at any election, shall be printed on the same ballot, at public expense, and on election day to be delivered to the voters within the polling place by sworn public officials, and only such ballots so delivered shall be received and counted. All voters shall be guaranteed absolute privacy in the preparation of their ballots, and the security of the ballot shall be made compulsory.”
Our election law was enacted before the constitution went into effect by the admission of Wyoming as a State, but after the constitution had been adopted by the constitutional convention and ratified by the vote of the people. It was thus as complete an expression of the will of the people as to the character of election law as they desired, and as efficient information to the legislature upon that subject as it was afterwards when it went into effect as the constitution of the State of Wyoming. And the act in question has been left in force ever since without important change, and no change affecting .the questions submitted for our decision, as providing the means for carrying these constitutional provisions into effect. This is an emphatic legislative endorsement of these provisions as they stand to-day; and they follow the constitutional provisions very closely.
It will be observed that not a single one of these constitutional provisions is self executing. There could not be an election by ballot without a law providing means for the polling of the vote by ballot. So as to the other provisions. It was and is necessary, and the constitution expressly requires that the legislature shall provide by law for the privacy of voters in preparing their ballots, for the compulsory secrecy of the ballot, that' the names of candidates shall be printed
If we could entertain a doubt as to the correctness of our conclusion, that section 130 of the act of 1890 requires both the official stamp and the name or initials of a judge of the election to make a valid ballot, and that the legislature has not exceeded its authority in enacting the provisions quoted from the act, and that they are not in conflict with the eon-' stitution, there are some further considerations which would suffice to remove all doubt. We have examined a considerable number of cases industriously collated by the Chief Justice, and fairly collated without regard to the question of whether they sustain his dissent or not. We have also examined the authorities at hand upon the general question of the authority of legislatures, under constitutions more or less similar to our own, to enact laws resulting in the rejection of illegal ballots, even when involving large numbers of votes, the votes of entire precincts, or districts consisting of a number of precincts, or the validity of an entire election. After such examination we feel safe in announcing the following proposition:
No respectable authority can be found denying the power of the legislature to define and prescribe what shall constitute a lawful ballot; and the further proposition that no respectable authority can be found denying the power of the legislature to enact that none but lawful ballots shall be received or counted. Such provisions our legislature has enacted. The first subdivision of section 164 of the act of 1890 reads:
“No officer shall deposit in the 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*464 the election, and offered by a qualified elector during the time of election.” And the authorities are unanimous to the effect that an illegal ballot will not be counted. If it be considered doubtful whether section 130 requires both the official stamp and the name or initials of a judge of the election upon the ballot, it can not be considered doubtful under section 164. And section 128 of the act provides also that “No judge of election shall deposit in any ballot box any ballot upon which the official endorsement hereinbefore provided for does not appear.” The official endorsement is the official stamp .with the name or initials of a judge of election written directly under it by himself. The meaning of these three sections taken- together is 'clear. A legal ballot is one with both the official' stamp and the name or initials of a judge of the election upon it, no judge of election shall deposit any other ballot in any ballot box, and no other ballot shall be counted. And if any judge of election deposit any other ballot in any ballot box the act is highly penal. The eleventh subdivision of section 164 provides:
“Any officer violating any of the provisions of this section shall be imprisoned in the penitentiary not more than five years and not less than one year, or be fined not more than two thousand dollars and not less than one hundred dollars, or may be both imprisoned and fined as aforesaid, and shall forever thereafter be incapacitated from holding any civil office or of exercising the elective franchise in Wyoming.”
The legislature evidently regarded- the observance of these provisions as of great importance and made the penalty thus severe.
But- the voter has duties to .perform supplementary to that of the officers, and the performance of these duties by the voter constitutes an important part of the scheme of the constitution and the-statute to secure the purity of elections, to guard against abuses of the elective franchise, and to secure the secrecy of the ballot. And section 165 of the act imposes a severe penalty upon any person upon whom any duty is imposed by the act, “who shall wilfully do or perform any
And the act specifies some things which the elector himself shall do, and some things which he shall not do'.
“On receipt of his .ballot the-elector shall forthwith, and without leaving the polling-place, retire alone to one of the places, booths or compartments provided' to prepare his ballot. He shall prepare his ballot-by marking a cross before or after the name of the person or' persons for- whom he intends to vote.” (Sec. 120.)
“Ho elector' other than-one who may, because of his disability to read or physical-disability, be unable to mark his ballot shall divulge to any one within the. polling place-the name of any candidate' for whom he' intends to vote or (to) ask or receive the assistance of any person.within the, polling place in the preparation of his ballot.” (See..'127.)
'. “After preparing his -ballot the elector-shall fold it so- that the face of the ballot will be concealed, and so that the endorsement therein may be'seen. He shall then vote-forthwith and before leaving -the-polling place.”' (Sec. 122.)
• What acts' of omission- or - commission will subject- the elector to the'penalties of section 165 we-will not now-consider. But we cannot regard-' the -elector who neglects to comply with any of these positive provisions of the statute as blameless, and we think he has no cause of complaint if, in •consequence of such neglect, he loses hiswote. -The positive command of-the statute that the-elector shall fold his-ballot 'so that the endorsement may be seen- implies that he- shall -look for such-endorsement. It cannot be said that it is impossible for him to comply with this requirement when the ballot furnished bears no. endorsement.'-' The judges are there with the official stamp. It is little trouble'to ask them to endorse'the ballot próperly. '• We have-no patience to consider the idea that the-voters generally have not the intelligence to do this.
We will-'not' .'speculate -as 'to. what -presumptions may arise ■from this neglect of dirty by the officers of the three precincts named with the acquiescence of'all the voters. "But we must
But these are minor considerations in the discussion of the questions before us. The description of a lawful ballot is plain. The command to the judges to place no other ballot in the ballot box and the provision that any. ballot not answering to the description shall not be counted, are plain, imperative and mandatory. The doctrine of all the authorities as to such language in election laws is well summed up in McCrary'on Elections at se'ction 190. He says: “The language of the statute to be construed must be consulted and followed. If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether, the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all considerations of its policy or impolicy must be addressed to the législature”.
We are willing to go to the extreme limit of liberal construction in order to save an honest election, or to avoid the loss of votes cast in good faith; but we cannot conceive that it is permissible for this court or any court to set aside positive legislative enactments. The statutes under consideration aTe too clear in their meaning to require construction. The question is simply whether we will enforce them or not. We are of the opinion that the Supreme Court of Kansas has well stated the correct principles applicable to such cases in Boyd v. Mills, 25 L. R. A., 486, as follows:
“The departure .from the law in matters which the legislature has not declared to be of vital importance must be substantial in order to vitiate the ballots.”
“Where tbe law is explicit in prohibiting tbe counting of any ballot which does not conform to tbe requirement of tbe statute that the courts will enforce tbe law as it stands without interposing their own judgment as to tbe reasonableness or unreasonableness of the requirements.”
We are of tbe opinion that the statutory provisions under consideration are reasonable, constitutional and efficient means of the discharge by the legislature of the duty imposed by the constitution to pass laws to secure the purity of elections, to guard against abuses of the elective franchise, and to make the secrecy of the ballot compulsory.
But we are not prepared to give the categorical answer of yes or no to the first question reserved for our decision; neither do the facts of the case call for it. We should be loath to say that a defective stamp not containing all the words required by the statute, used upon all the ballots of a voting precinct, would require the rejection of the vote of the precinct east at an election fairly and honestly conducted.' And the facts of this case do not raise this question. Neither do we decide whether the stamp and the name or initials of a judge of the election must be upon the back of the ballot to authorize its counting. If the stamp and the name or initials of the judge were upon some other portion of the ballot, and the ballot were folded so that this could be seen, but the tickets printed upon the face of the ballot concealed,, it might be that this would be a sufficient compliance with the spirit, if not with the letter, of the law, to save the ballot from rejection. This, of course, in the absence of fraud, and when the place of the stamping and the writing of the initials would not be a mark or means of distinguishing the ballot from ballots cast by other persons. But we are of the opinion that the official stamp and the name or initials of a judge of the election must appear upon the exterior of the ballot when it is so folded as to conceal the tickets which it bears upon its face; and if this is not the case, the law must be enforced which prohibits the counting of such ballot. We are inclined
■ To' the second question we- answer that all of the ballots cast, at the three precincts.named should be rejected.
As to. the third' question, we are not in position to say whether further .proceedings may not lawfully be had prior to'judgment. The cause will be remanded for further proceedings in accordance.with this opinion.
Dissenting Opinion
dissenting.
■ B.y the-decision of the majority of this Gourt, the voters of three- election precincts of Converse County have been deprived of. the right to have the-.ballots counted as. cast by them, through no fault .of.'their .own, but simply and Solely through the- carelessness or inefficiency of the judges of- election. ■ These officers were charged by the law, under heavy penalties;'with the duty of placing on the back and near the to'p "’of the ballots, With a rubber or other stamp provided for '-that purpose, the designation “Official Ballot” and the name and number of the polling .precinct, the name'of the'county, the date of the election and the name and official designation of the clerk furnishing the tickets; and one of the judges .of election was required to: write-his .name, or initials upon the back of each ballot, and directly under the impression of the official stamp. Sections 110, .110,. Ch;. 80, Sess., Laws-,189,0. .
• In all three of the precincts the name or-initials of a judge of election1 does not appear on any-of the ballots voted, and at two of the precincts the'endorsement of'the official ballot was not stamped on the back of any of the:ballots, although it was'printed or stamped on the face .of the ballots* The author
Counsel for the defendant insists that this act maybe so construed as to permit a ballot to be counted which has -either one of these endorsements, the official stamp, or-the name-or initials' of the judge of election. Courts have -been- extremely cautious in'construing -the Australian ballot law in'such -a manner as not to-disfranchise the voter, where the omission is not through his own fault, and any construction which-will uphold the ballot and secure its- count is seemingly upheld, though the reasons therefor are not always very satisfactory. The statute of Minnesota provided that- the initials of two of the .judges” of election of opposite political parties should be endorsed on the ballot. •
- It was held that where -there- was no wilful disregard of- the statute, and no wrong-or fraud intended or perpetrated, that the requirement was not mandatory, but- was complied -with if the initials were those of two judges of the same ■ political faith. But this was mainly-upon the ground that the statute though requiring-the .endorsement on the ballot by two judges of opposite political affiliations did not say expressly that a ballot not containing such endorsement should not be counted, although it did say that ■ “no ballot which had not the initials -of two judges of election in said judges’ own handwriting on the back thereof,” shall be placed in the box. The reasoning of the court is not quite clear, as it' seems that the statute, strictly construed, would mean that, no ballot should be deposited in the box unless it be the identical- ballot handed to the voter by the election officer, upon which should appear the initials of- two judges of election of opposite political faith. State v. Gay, 59 Minn., 6. In the case of Boyd v. Mills, 53 Kan., 594, 25 L. R. A., 486, the Supreme Court of Kansas decides a case more nearly in-point. The statute of that State provided thát the “ballots shall be on-plain white
These provisions from Kansas and Minnesota are recent ones and illustrate the extreme reluctance on the part of the courts to so construe the Australian Ballot Law as to deprive any elector of his vote, or of the right to have his vote counted as cast, when the fault is not his own, but that of the election officers. I cite these cases as showing how liberally the statutes are construed in favor of the voter and against a strict construction that would result in disfranchisement.
If thése two eases were taken as guides in construing section 130 of our election law, supra, it seems to me that if the ballot contains the “endorsement” of the official stamp alone, even if it were not placed upon the proper part of the ballot, that the law would be technically complied with, and the ballots should be counted. The court said in Boyd v. Mills, supra, “We reach the conclusion that the law has not been substantially infringed because we are unable to see how the purpose of the act can have been impaired in any degree by the mistake made in using the colored ballots.” True, the opinion contains some deductions which might be considered as supporting the views of the majority of the court in this case, on abstract questions of the law, but this closing extract
But the next section, 131, of the law must be read with its predecessor quoted herein. It relates to the canvass of the ballots east at the election precinct, and provides that as soon as the polls of election shall be closed, the judges of election shall immediately proceed to canvass the vote, and shall continue without adjournment until the canvass is completed, and then follows this provision: “The canvass must commence By a comparison of the poll lists, and they must be made to agree; the ballot box shall then be opened and the ballots counted by the judges and clerks, unopened, and if there are more ballots than names upon the poll list the ballots must be returned to the box, shaken up, and one of the judges shall draw from such box ballots enough to make the remainder agree with the poll list, which ballots so drawn shall be destroyed, and two or more, ballots being found so folded as to bear the appearance of having been voted by one person, shall not be counted, but preserved with the poll books; the poll list and ballots being made to agree, the judges and clerks shall then proceed to count and ascertain the number of votes for each person named upon such ballots.” It appears to me that this section is either inconsistent with the one preceding it, or if construed with it, as it must be, effectually neutralizes the provisions of the other. Nothing is said in this section 131 about not counting the ballots denounced in section 130, but only those ballots may
It was held where one received a majority of the votes cast for the office of township treasurer, — it being contended that he was not the nominee of any party, as the ticket was not properly certified, and he was not therefore entitled to a place thereon, and that such tickets should not be counted,— that the voter finding the ticket upon the ballot could not be required to determine its regularity at his peril. The court said: “This might involve a necessary knowledge of facts difficult to ascertain. He (the elector) may safely rely upon the action of the officers of the law, whom he has the right to suppose have done their duty.” Bragdon v. Navarre, 102 Mich., 259. This was the rule contended for by me in my dissenting opinion in the case of State v. Barber, 4 Wyo. It is with much pleasure that I notice that the case of Price v. Lush, 10 Mont., 61, holding to the contrary, which I refused to follow, has been, it is said, “modified,” but as the concurring Justice, Judge Hunt, says, “overruled,” in a recent case in the same court in which a masterly opinion was delivered
I see evidences of returning reason in the more recent construction of the Australian ballot laws, and I am confident that the rule I follow in this case will finally be plainly announced by the courts of the country. The law attempts to prevent former evils in protecting the individual voter from corruption and intimidation, but it should not be so construed as to invite a wholesale disfranchisement of unsuspecting voters, who have relied upon, and who have the right to rely upon, the faithful performance by election officials of the duties imposed upon them. I can not insist upon the literal interpretation of the ballot law that may deprive any voter duly qualified through the misfeasance, non-feasance or malfeasance of any officials, where the elector has obeyed instructions minutely mapped out for him by the law. The sole object of the sections of the law quoted from is that the elector shall vote only an official ballot delivered to him by a judge of election, after having prepared it, and in this case it seems to me irresistible that the law was complied with on the part of the elector. It is difficult to construe, and the most liberal construction should be given to it in order to secure freedom and purity of elections, but not to deprive any elector of his vote through the fault of the election officials. To hold to any other rule would be to sacrifice substance to form, and to have our last estate worse than the first. It is safe to say that the framers of the Australian ballot law, as it appears in our statutes, many of them men of prominence in the history of the State, never contemplated the wholesale disfranchisement of electors through the negligence of election officers.
I think that they will stand aghast at such an interpretation of their statute. It may be intimated that without a close adherence to the letter of the law, if it can be ascertained, which is to me extremely doubtful, the door to fraud by election officers would be opened, but I think not. In one case in the books the judges of an election precinct stamped and endorsed according to law official ballots after the polls
However, the case might well be disposed of on other grounds: The law -was enacted before the constitution went into effect, and, if repugnant to that instrument, must fail, as only those territorial laws are • continued in force- that are not repugnant to the constitution, and if the construction of the statute adopted by this court -is the true one, the law is invalid. The constitution provides certain qualifications-required of electors, such as age, residence, Federal citizenship, ability to read and write the English language, and excludes from the electorate idiots, insane persons, those convicted of
In the case at bar, if the law operates to disfranchise any elector and prevents ballots cast by the elector, received by him from the election judges, from being counted, whether properly endorsed or not, in the absence of fraud, is repugnant .to the constitution.
I believe that an “honest ballot and a fair count” is secured by the constitution, and that no law, whether adopted prior or subsequent to'the time of the taking effect of the constitution, can step between the voter and the constitution, and that any requirement of any statute that adds to the qualifications of suffrage as enumerated in the constitution itself is void, particularly when it is attempted to impose upon a qualified voter such additional qualifications or restrictions as to make the
All the disputed ballots should be counted, and judgment rendered for the defendant, and the district court for Converse County should be so advised.
Rehearing
OH REHEARING.
The principal questions now called to our attention arise upon the provision of section 130 of Chap. 80, session laws of 1890, in regard to the rejection of ballots: “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 act, shall be void and shall not be counted.”
1. It is urged that this may be construed to mean that “In the canvass of the votes any ballot which is not endorsed by the official stamp and has not the naipe or, initials of the judge of election, as provided in this act, shall be void and shall not be counted,” thus requiring the absence of both the stamp and the name or initials to authorize the rejection of a ballot. It is true that some courts have gone to the extent of construing “or” to mean “and” in order to carry out the plain intent of the legislature; but, as shown in the opinion handed down on the first hearing, the whole tenor of the act in which this provision occurs shows that the legislature meant what is expressed.
The following example was given in argument in illustration of the use sometimes made of the word “or:” “Any person who is not a citizen of the United States or has not declared his intention to become such is not entitled to vote.” As to this it is to be said that any author using this language would be saying what he did not mean. The evident meaning is that “any person who is not a, citizen of the United States and has not declared his intention to become such is not entitled to vote.” The evident intention is to say that both dis
2. It is further contended that the provision of section 130, requiring the rejection of ballots, is in conflict with part of the next section of the act upon the same subject. The next section is as follows: “Sec. 131.1 As soon as the polls of'the el'ection-shall be closed the judges shall proceed immediately to canvass the vote given, .and shall’ continue without adjournment-’until the canvass is. compléted. The canvass must commence by a comparison- of the.- poll lists> .and they must .be made- to agree;- the ballot, box shall' then be opened and’the ballots-counted by. the judges and clerks, unopened, and if there are more ballots than names upon the poll list, the-ballots must be returned-to the'box, shaken up, and one of the-judges shall-draw from sueh box ballots enough to make the remainder agree with the. poll list, which ballots so drawn shall be destroyed,-and-two of ...more ballots being found so folded as tq bear the- appearance of having been voted by one person,-shall not be-counted,-but preserved with the poll books; the poll list and ballots being made to agree, the judges and clerks .shall then proceed’to .count and ascertain the number of votes for each person named upon sueh ballots.” ’ This section contains,'.in substance^ the-usual'provisions authorizing and requiring the proper officers to canvass the vote. So far as the cases have fallen under our observation or been called to our attention,.-such'provisions have not.been held’to conflict with’ other provisions requiring the rejection of -other ballots than those- specified, nor to require the. counting of illegal or .void ballots'. It.-is the duty of- the courts to 'so- construe the provisions of a statute that they may all stand and have-effect, .-if this-can be done-by-a reasonable construction. Section 13.0-provides that any ballbt which is. not ■ endorsed by .the official stamp, or has not the name .or initials of the judge ;of election .as provided by this.act, shall be void and
3. It is further contended that the provision quoted from section 130 is repugnant to the constitution because its en•forcement will result in the rejection of ballots of persons having the constitutional qualifications of electors. So far as we are at present advised, assisted by the diligent research of counsel, there are, up to this time, but two authorities holding that a statutory provision such as that of section 130 is in conflict with constitutional provisions-fixing the qualifications of electors. And the qualifications of electors-are fixed by constitutional provision in every, or nearly every, State in the Union. It is said that there are one or two exceptions, but we know of none. (6 Am. & Eng. Enc. Law, 263.) These two authorities are the dissenting opinion in this case, and the case of Moyer v. Van Devanter, 12 Wash., 377. These authorities command and receive o.ur respectful consideration. As to the ease of Moyer v. Van Devanter, it is,to be remarked that it was decided under statutory and constitutional provisions different from our own. The ballots drawn in question in that case bore the proper stamp but had not the name or initials of a judge of the election as required 'by statute. Another section of the statute makes it a misdemeanor for any inspector or judge of election to deposit in any ballot box any ballot upon which the stamp does not appear. It is not made a crime to deposit a ballot upon which the initials do not appear. Our statute punishes as for a felony any election officer who deposits in a ballot box a ballot which has not both the stamp and the name or initials of ¿'judge of the election. The constitution of the State of Washington provides' that “all elections shall be by ballot. The legislature shall provide for
“Thus it has been held in Missouri that a statute making it the duty of the judges of election to cause.to be placed.on each ballot-.the-number corresponding with the number of the voter offering the same, and providing that no ballot, not numbered shall be..counted, is,mandatory, and must'be em-forced. Although this-doctrine may .sometimes result in very great hardship and injustice.by depriving, the voters, of their rights by reason of the negligence or misconduct of the officers of the election, it-is,.nevertheless, difficult to see how any different construction could "have , been placed upon, such a statute. Statutes which simply direct the judges of- election to number the' ballots, without . declaring, what -consequences shall follow if this be not done, may well be held directory only; but where.'the statute, both" gives'the directions and declares what the consequences .of-neglecting their.observance shall he, there'is-no! room-for'construction. . Such statutes are intended to prevent fraudulent voting;! and if the- legislature is of the'opinion:that the general good,.'to be derived from their strict enforcement will more than counterbalance the
And the qualifications of electors are fixed by the constitution in Missouri! The rule in Kansas, announced in Jones v. The State, 1 Kan., 273, and approved in Gilleland v. Schuyler, 9 Kan., 569, and quoted by McCrary, is stated in these words: “Unless a fair consideration of the statute shows that the legislature intended compliance with the provisions in relation to the manner to he essential to the validity of the proceedings, it is to be regarded as directory merely.” And the qualifications of electors are fixed by the constitution in Kansas. The case of Lloyd v. Sullivan, 9 Mont., 577, is cited in the dissenting opinion in this case. It was a ease of fraudulent misconduct of election officers, and the return of the vote of a precinct was rejected and the entire vote of the precinct lost on account of such misconduct. And the qualifications of electors are fixed by the constitution’ in Montana.
In Michigan, statutory provisions for securing the secrecy of the ballot -are held mandatory without a statute, that when those provisions are disregarded the ballots shall be void or shall not be counted. Attorney General ex rel. Leavitt v. McQuade, 94 Mich., 439. And in- Michigan the qualifications of electors are fixed by the constitution.
In Nebraska, the indorsement of a name which is not the name of a judge of the election upon a ballot causes its rejection in the count, without any express statutory provision to that effect. Spurgin v. Thompson, 37 Neb., 39. And in Nebraska the qualifications of electors are fixed by the constitution.
In Texas, a law was passed in accordance with a constitutional requirement that ballots should be numbered. The law further provided that ballots not numbered should not be counted: Held, mandatory. State v. Connor, 86 Tex., 133. And in Texas the qualifications of electors are fixed by the constitution.
In Moyer v. Van Devanter, supra, and in the dissenting opinion in the case at bar, it is held that omissions in violation of statutes mandatory in form are not sufficient to justify the rejection of the poll or ballot, hut that such statutes are unconstitutional. These authorities are entitled to and receive our respectful consideration. We will not disregard them on the sole ground that they are opposed to the great weight of authority. The principal reason urged in support of these opinions is the hardship and injustice of depriving the voters of their right by reason of the negligence or misconduct of election officers. McCrary answers this in the quotation already given: “Such statutes are intended to pre-. vent fraudulent voting, and if the- legislature is of the opinion that the general good to he derived from their strict enforcement will more than counteract the evils resulting from the occasional throwing out of votes honestly cast, the courts can not reconsider the mere question of policy. The legislative will upon such a subject, when clearly expressed, must prevail.”
But in the ease at bar some question is made in the dissenting opinion as to the intention of the legislature in enacting the statute in question. It is there said: “It is safe to say that the framers of the Australian ballot law, many of them men of prominence in the history of the State, never contemplated the wholesale disfranchisement of electors through the negligence of election officers. I think they wfll stand aghast at such an interpretation of their statute.” As to this it is only necessary to say that our legislators have expressed their
The státutory provisions under consideration are part of an act of the last territorial legislature, consisting, of 184 sections, entitled elections, approved March 14, 1890. At that time the constitution had been ratified by popular vote by an overwhelming majority. . That legislature, fresh from the people who , had so recently ratified the constitution, enacted this law. It is safe .to say that the-members of this.legislature did not regard as unconstitutional the provision that certain bal-' lots should-be void and should not. be counted. The first State legislature re-enacted, .generally, all the statutory law of.the territory nok^repugnant.to the constitution. (Sess. Laws 1891, p. 157..)...This legislature also amended the election law in some-particulars, but in no point. affecting the decision of the questions reserved in this case. The second State .legislature did not amend this law in any particular. The third State legislature amended- the election law in some of its provisions, but not in any point affecting the- questions under consideration. These .successive legislatures left in force section. 119, that “before.delivering any. ballot to an elector the said judges shall print-on the back and near the-top of the ballot, with a rubber or .other stamp provided for the purpose, the designation ‘official ballot,’ and the .other words on the official stamp as-.hereinafter provided, and one
It is safe to say that these successive legislatures in preserving these sections did not think that they were violating the constitution, or impairing the constitutional rights of electors. It is safe to say that they intended these provisions to have effect and to be enforced, and that the prohibited ballots should not be counted. And-while they were doing this, so far as we have been able to ascertain, assisted by the diligent research of counsel and of the dissenting justice, there could not be found a decision of any court or an opinion of any judge denying the constitutional authority of the legislature of a State to pass a law defining a lawful ballot, and prohibiting the counting of ballots which are not lawful. These provisions, and the entire system of voting known as the Australian ballot law, are intended to prevent fraud. It is poor consolation to the honest voter to cast his vote and have it counted when he knows it may be offset by a purchased vote. It is poor consolation to the majority of honest voters of a populous district to cast their votes and have them counted when they know that their majority will be met and overwhelmed by the votes of hordes of hired ruffians and repeaters. It is poor consolation to them to go into court for a remedy, and vainly attempt to get evidence of frauds which are notorious, while the successful criminals are laughing at their futile efforts. It is notorious in the recent his
Evils of this nature, so monstrous in older communities, were threatening Wyoming. Wyoming does want fair elec-i tions. Legislators, truly prominent in the history of the State, men of integrity and ability,' have devoted their best thought to devising and perfecting a plan to meet and crush such frauds in their inception. prevention is better than attempted cure. The result of their sustained and persistent labor is the present election law. By this law, Wyoming, through four successive legislatures, has said that she does want fair elections. This law is her answer to the question, “What are you going to do about it?”
One provision of this law was considered so essential to the prevention of fraud, bribery, intimidation and corruption, that it is put in language expressly mandatory. It specifies certain ballots which shall be void and shall not be counted. This provision is attacked as repugnant to the constitution.
The legislators of Wyoming have done their work carefully, and, it would seem, wisely and well. That it is satisfactory to the people is evidenced by their preserving every distinguishing feature of the work after repeated tests in its practical operation, and repeated opportunities to repeal or modify it through their legislators. But this is straying from the question. Is the law constitutional? From considerations
Rehearing denied.
Dissenting Opinion
I dissent. Since a rehearing was ordered in this case I have seen nothing to change my views as announced upon the original hearing. Indeed, since my opinion was filed, decisions in parallel cases, including some very recent ones, have intrenched my position.
There can be no question that all of the disputed ballots, which were all of the ballots voted at three precincts in Converse County, were honestly cast and honestly counted. There is no imputation or suggestion of fraud in the ease, and it is apparent that if the ballots are illegal, they become so through the failure, of the judges of election, or some of them, to make or cause to be made all the endorsements thereon mentioned in the act.
The provision of law quoted in the majority opinion was doubtless enacted for the purpose of preventing ballot box stuffing, and the voting of other than the official ballots, not to work a wholesale disfranchisement of honest and unsuspecting voters. “It is one of the great maxims of interpretation, to keep always in view the general scope, object and purpose of the law, rather than its mere letter.” Rutledge v. Crawford, 91 Cal., 533. Laws are to be construed according to their spirit and meaning, and not according to their letter. Assuming the constitutionality of a law, before it should be construed to work the disfranchisement of an elector, it must be clear that under the circumstances then existing, the legislature intended such to be the case. “All statutes tending to limit the exercise of the elective.franchise by the citizen should be liberally construed in his favor, and unless the ballot comes within the letter of the prohibition against a particular kind of ballot, it should be counted. A great constitutional privilege — the highest- under the government — is not to be taken away on a mere technicality, but
It was held in Canada, in an early case, in Wigmore on the Australian Ballot System, at page 194, that although at a certain polling place none of the ballots deposited had the initials of the election officers on the back as required by law, that as the irregularity occurred on all of the ballots, without reference to a particular candidacy, and was evidently the result merely of the ignorance of the election officers, the ballots were valid. Ex parte Tremblay, 13 Queb., L. R. 64 (1887). It may be that the provincial statute did not contain the mandatory language of our statute, denouncing such ballots as void and providing that they should not be counted, but I think this makes but little difference in principle. The legislature certainly could never have intended to mean that all of the ballots cast at a polling precinct should be excluded because they do not contain all of the indorsements mentioned in the act, where it does not appear that there was a design to evade the statute or to effect a fraud on the part of the electors, or in the action or failure to comply with the provisions of the act on the part of the judges of election, and where it must be inferred that such failure to comply with the strict terms of the law was owing to the carelessness or-inadvertence of the judges of election. The provision, even though mandatory in its terms, is not quite clear in denouncing the ballots as illegal for a lack of all of the indorsements, but a survey of the whole act, keeping in view the great object in its enactment, makes it plain that it- was never intended to defeat the popular will by casting out bodily the entire votes of districts by any provision of the statute. It was intended to prevent the voting of any ballot but an official one received from the proper officials and deposited by the elector who so received it. It is clear that none but official ballots were cast and counted, and this is sufficient, as the statute, however it may be construed, is
The ease of Spurgin v. Thompson, 44 N. W., 297, relied upon in the majorityopinion, does-not go to the extent claimed therein. As I understand the facts in the case, a name appeared written on the. ballot which was inferred to be that of an elector, and so it was rejected, and not because the name of the election officer was not thereon. .
A review ofval-l the cases -hearing upon the construction of statutes similar to ours convinces me that no-provision of the act before us should be allowed to operate against the evident object and purpose of the; act; and to -bring it into contempt and reproach, by making- it a means .of disfranchisement of whole districts and its .technical violation result in.-the conversion of a minority of electors of a county into. a.majority. The ballots are delivered to -the electors by the judges of election, received again by .them and- deposited in the ballot box and counted, although, p.erhaps, not indorsed ■ with • all the matters required by the statute, are sufficiently identified as official ballots, and 'should-not be rejected..- =
2. But the great question at stake in this case -is, .assuming ■that .the statute is-as-it-is construed by'the majority of. this court, whether it- would be permitted to -disfranchise" all of the electors of one or more precincts because a judge-of elocution has failed to make certain indorsements, upon the ballot, which it is contended are required by. the statute,- whether it would be constitutional. The ease of Moyer v. Van Devanter,
“Were we authorized to hold otherwise, such a holding would be subversive of the best interests of society, and might result in great peril to our governmental structure. Such a holding is not necessary to preserve the purity of elections; for provision can be made for the investigation of • charges of actual fraud upon the part of electors and election officers. It would be an interminable task to refer to each of the cases cited in detail, and we content ourselves with giving our conclusions drawn from all of them. No decision cited has gone to the extent we are asked to go by the appellant in this case; and to accord with the general holding of the courts, as we understand them, in the light of what has actually been decided in the cases, we are compelled to hold that the provi-. sion aforesaid against counting ballots where no initials are placed thereon cannot be sustained.”
The court puts- the distinction very clearly .as to statutes held to be mandatory and constitutional, and those that are not; the former is where the voter is required to do certain things, and is charged with obedience to the regulation, and the latter where certain duties .devolve upon election officials, a distinction, I think, the majority of this court have overlooked. ' The majority opinion states that this decision by the Washington Supreme Courtis against .the weight of-authority. I think not. - Neither is it based upon constitutional and statutory -provisions differing in any material respect from-our own.
The provision of our constitution invoked by the majority
Our constitutional provision was never intended to cover such a “means of identification” of any ballot as to nullify the popular will, and to establish a triumvirate in each election precinct, which shall hold in its hands the fate of any
The doctrine I contend for was established in Michigan by the decision in the case of Attorney General v. Detroit, 78 Mich., 545, where the court say: “The object of a registry law, or of any law, to preserve the purity of the ballot box, and to guard against abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege. It is for the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot box, it is proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the legislature, in attempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the legislature in such eases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by the regulation. It must be regulation, not destruction.” After citing a number of authorities, the opinion reads: “These authorities all tend in one direction. They hold that the legislature has the right to reasonably regulate the right of suffrage, as to the manner and time and place of voting, and to provide all necessary and reasonable rules to establish and ascertain by proper proof the right to vote of any person offering his ballot, but has not power to restrain or abridge the right, or unnecessarily to impede its free exercise.” And further on, the opinion says: “No elector can
It is unnecessary to multiply-authorities' in-support -of my position. -Their name is legion and their reasoning is unanswerable. The-doctrine they-.establish is--imbedded in constitutional- provisions which are the pillars that support popular government. The right to vote, -the - highest exercise.- of a freemaffis Will,'can not be frittered away by technical;violation's by election ■ officials of' a statute, doubtful in.- its terms, or-even where it has-the plainest meaning and intent, and the popular will thus'set.aside and thwarted. - 'Expressions to the contrary, 'and there are-undoubtedly'some of tliem, have never found, and will never find, a permanent lodgment'.in the jurisprudence of any commonwealth in the Union; for the doctrine they announce is abhorrent to reason, shocks the moral sense, and undermines the foundation of free government. I regret that this -court has not fearlessly.-taken the stand with-great tribunals of" sister States,. in denouncing as unconstitutional any invasion of the great right of suffrage, that-infliets vicarious Suffering and punishment upon a body of electors fo'r the sins of omission ■ of their servants. I cannot -see .what bearing the remarks- of the honorable member of Berkeley County in the -constitutional convention- of South Carolina has. to do with the-question here. • If I understand correctly his remarks, as-stated in the majority , opinion, he desired to see
I may aptly close this opinion by. .quoting a brief but comprehensive extract from Judge Cooley’s great work on Constitutional Limitations, at page 775: “That one entitled to vote shall not be deprived of his privilege by action of the
