State ex rel. Braley v. Gay

59 Minn. 6 | Minn. | 1894

Collins, J.

By this proceeding the relator, Braley, questions the right of defendant, Gay, to the office of sheriff of Winona county. The election under which the latter now holds the office is that of 1892, and consequently the election law involved is Laws 189.1, ch. á. We readily agree with counsel in the assertion that it was the purpose of the Legislature, when enacting this law, to purge our methods of conducting elections of some of the evils connected therewith, and to promote the purity of the ballot; but the law must not be construed so radically as to render it incapable of enforcement without disfranchising great numbers of electors through no fault of their owm, nor must the construction placed upon it be so technical as to lead to its overthrow. The construction must be practical, if this be possible, in view of the language used.

1. At one of the precincts in the city of Winona, two of the judges of election were of the same political party, while the third was of another party. Chapter 4, § 51, requires that two of the judges, “of opposite political parties,” shall place their initials on the backs of all the ballots before they are used by the voters. No subsequent reference is made in the law to this requirement that the judges who thus mark the ballots shall be of opposite political faith; but by later sections (52 and 50) it is enacted that the ballot, when presented to the voter, shall have the proper initials to be exposed to the judges when, after marking, it- shall be offered for deposit in the box, and “no ballot which has not the initials of two judges of election in said judges’ own handwriting on the back thereof” shall be placed in the box. About thirty of the ballots cast at this precinct, out of a total of 412, were marked by two of the judges of election in accordance with the provisions of said, section 51; but the balance bore the initials of two judges who happened to be of the same political persuasion; and, if these ballots can be cast out of the count, relator is entitled to the office. His counsel claim that the provision of the law which requires the two judges who place their initials- upon the backs of the ballots to be of opposite political parties is mandatory, and that, unless strictly complied with, the ballots should not be counted. We cannot adopt this view. It is not claimed that there was any willful disregard of this provision of the law, or that by failing to observe it a fraud was perpetrated upon any one, or that a wrong was intended or accomplished. The placing of initials on the ballots by judges who belonged to the same party was in ignorance of the requirement in question. There are many reasons why this provision must be held simply directory, but we need not state all. One is that if this is a- positive requirement the entire vote of a precinct could be rejected by deception on the part of a person seeking the position of judge of election, as to his politics, or by a mistake on the part of the appointing power as to the political affiliations of a person placed by it on the board, and in many other ways. Again, what would be the result if no persons could be found to serve as judges of election, except those of the same political party? With the construction contended for the minority party in any precinct could disfranchise every voter in it, and the fewer in numbers of such party the easier total disfranchisement' could be accomplished. Again, we think the omission in section 56 of all reference to political affiliations is significant, if not controlling. When providing that ballots shall not be deposited in the box not bearing the initials of two judges, nothing is said as to the necessity of such initials being those of the judges of opposite political parties.

2. By section 57 it is required that whenever an elector shall make oath that, for specified reasons, he cannot mark his ballot, he may have the aid of a judge of election or qualified elector, who may read it to and mark it for him. The court below found that at the election in question, and at the precinct before mentioned, one of the judges of election marked at least 150 ballots for alleged illiterate and physically disabled voters, of which at least 125 were cast and counted for the defendant. This was done in good faith, in the presence of the other judges, of the clerks of election, and of some other electors. These ballots were all marked as requested by the voters whose requests were being complied with. Previous to marking, the voter who desired aid in the preparation of his ballot was asked by one of the judges the reason, and “if he replied that he could not read English, or had left his glasses at home,” he was required to raise his right hand, whereupon the judge said to him these words: “You swear now to this; that what you have told me is true.”

The statutes nowhere prescribe the form of the oath to be administered to alleged illiterate or physically disabled voters, while the only general provision in respect to oaths is that found in 1878 G-. S. ch. 72, § 7. By this section it is enacted that the usual mode of administering oaths “now practiced in this state,” with the ceremony of holding up the right hand, shall be observed. An oath, in its broadest sense, includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. 2 Bouv. Law Diet. 320.

While the form used at the election was not as formal and exact as it might have been, we are of the opinion that it was of binding-force and effect upon the conscience of the persons to whom it was administered. It was sufficient upon which to base the charge of perjury. See State v. Madigan, 57 Minn. 425, (59 N. W. 490.) We also wish to say in this connection that the provision of the law requiring the administration of an oath to such voters as claim the right to have their ballots marked by another person is mandatory, and must be strictly observed. An oath binding in form must be administered.

3. As before stated, the court below found that one of the judges of election marked, at the request of electors, 150 of the ballots. It is urged by counsel for relator that the language used in said section 57, that no one perspn shall so mark the ballots of more than three electors, is mandatory, and hence that 147 of these ballots were illegally cast, and must be excluded from the count. We are of the opinion that in the absence of a finding that a single one of the voters whose ballots were marked by the same judge, subsequent to the first three, had knowledge of the fact that he had previously performed the same service for three or more electors, the language cannot be held mandatory. Had there been a finding that this disregard of the terms of section 57 was with the knowledge and consent of the illiterate or physically disabled electors, we are quite clear that as to all who participated in this violation of the provision of the law, we should be obliged to hold it mandatory. Of course, we are now speaking, when holding that the words are simply directory, of a case where all — markers as well as electors — have acted in good faith. It is true that from the findings as to the size of the room in which the election was held, the location of the table on which the marking was done, and the position of the electors as they came forward to vote, it might be inferred that some of them must have known what was being done. But we cannot act on mere inference, and declare that they did. In this connection we wish to say that, in order to have a ballot marked by another person, the alleged illiterate or physically disabled elector must bring himself within the meaning of those terms. The fact that he is obliged to wear glasses, and has left them at home, as was the case with some of those for whom ballots were marked, is not sufficient. If the court below had found how many of these there were whose ballots were received, or the number thereof voting for defendant, we should feel constrained to deduct that number from defendant’s plurality. But it failed so to do.

4. It has been said that this marking was done upon the table around which sat the judges and clerks, and in the presence of other electors, who were passing in and out of the voting booths in the rear of the room, and of others who were waiting an opportunity to cast their ballots. It is urged that because of this irregularity, whereby the absolute secrecy of the ballot was removed, all of the ballots marked so publicly should be rejected. A fair interpretation of the law requires the preservation, as far as possible, of secrecy as to the manner in which an elector votes. But impossibilities cannot be required. It is a commendable provision which authorizes the judges of election to mark the ballots of such voters as are unable, within the terms of the law, to mark their own, and yet if the judges do ihis it cannot be done privately. A judge would not be permitted to seclude himself with the elector, either by clearing the room or by withdrawing from it. Nor could the voter’s wishes be communicated, ordinarily, in so low a tone of voice as to prevent others from learning liow he intended to vote. To demand anything approaching absolute secrecy in such cases would be wholly impracticable. We desire to protect the constitutional secrecy of the ballot fully, but it is impossible to insist upon the secrecy contended for by counsel for relator, where the right of suffrage is conferred upon the illiterate and physically disabled, as in this state, and is to be exercised in accordance with what is known as the “Australian System.” While it is evident that others had the opportunity, if so disposed, to hear what was said by many of the electors to the judge as to the way in which they wished to have their ballots marked, it appears to us that there was a total absence of a design that they should be heard. Undoubtedly, intimidation was not tolerated, and the views and preferences of the voters were fairly expressed by their ballots. The irregularity is insufficient to warrant us in excluding these ballots.

5. What we have said covers all of the assignments of error which need special consideration. We are satisfied that the relator has not established the allegations of his complaint, and as a result the judgment stands affirmed.

(Opinion published 60 N. W. 6T6.)