93 Kan. 424 | Kan. | 1914
The opinion of the court was delivered by
Does the law authorize the printing and distribution of copies of ballots prior to election? is the question presented for determination in this case. In the statute enacted in 1909 it is provided that:
“The ballots shall be printed on clear white paper of sufficient strength as not to be punctured by ordinary pencil-marking, and thick enough that the marks may not be seen through the paper. They shall be put in the possession of the officer charged with their distribution at least five days before the election, accompanied by sufficient number, not to exceed fifty for each precinct, of exact copies of said ballots, printed on paper of any other color than white, for the inspection of candidates and their agents and for distribution through each of the party organizations. If any mistakes be discovered they shall be corrected without delay.” (Gen. Stat. 1909, § 3262, subdiv. 8.)
“The printing and circulation of sample or imitation ballot on the day of the election or any day prior thereto, is hereby prohibited, and the violation of this section shall be deemed a misdemeanor, and any person convicted thereof shall be fined not less than ten dollars or more than one hundred dollars.” (Laws 1913, ch. 189, § 6.)
Does the section last quoted operate as a repeal of the earlier provision which explicitly authorized the issue of copies of the official ballot? There is no express repeal of this provision, and this is an important consideration since every other section which the later act purports to amend is singled out and expressly declared to be repealed in the last section of that act. It is reasonable to infer that if the legislature had intended to abrogate and eliminate so important a provision of the general election law it would have been mentioned in the repealing clause, as was done with other provisions of the act that were amended. The title of an act is an aid to its interpretation, and the title of the later act specifically names the sections to be repealed, and the section relating to copies of the ballot is not among them. The legislature, it is true, may effect a repeal of a statute by implication, but ordinarily where the legislature intends to repeal a statute it is done in express terms, and so it is said that “the presumption is always against the intention to repeal where express terms are not used.” (36 Cyc. 1071.) This rule has a special application where the
“Repeals by implication are not favored, and are sustained only when the later law cannot by any fair and reasonable construction be harmonized with the former. Both laws are to be sustained, if possible.” (p. 579.)'
The same rule was stated as follows in Stephens v. Ballou, 27 Ka,n. 594:
“If the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that .one overturns and destroys the other, but both should be given full force and effect.” (p. 601.)
Another expression of the rule was given in Newman v. Lake, 70 Kan. 848, 79 Pac. 675, where it was argued that the provisions of the act were not consistent with each other, and in response it was said that:
“It, however, is not our duty to inquire whether the different provisions of the law are logical, sensible, rational, or even harmonious, but whether they are so repugnant that both can not stand. If, for any purpose or under any circumstances, their provisions can both find scope for action we must give efficacy to both.” (p. 856.)
(See, also, Hornaday v. The State, 63 Kan. 499, 65 Pac. 656; Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815; School District v. Coughlin, 88 Kan. 1, 127 Pac. 219.)
The earlier provision was a direction to public officers to print and distribute a limited number of the
In the act of 1913 itself it is provided that there shall be printed on the back or outside of the ballot the words “official general ballot,” or “official township ballot,” or “official city ballot,” .as the case may be, as if to distinguish these ballots printed on white paper from the copies of the official ballots provided for in the general statute, and which the legislature evidently contemplated would be issued.
It is said that the act of 1913, which provides for what is commonly designated as the Massachusetts
There is room for the operation of the general statute, which provides for the issuance of copies of the official ballot, and, under the rules of interpretation already stated, we can not, in the absence of an express repeal, hold that the earlier statute has been abrogated.
The peremptory writ will, therefore, be allowed.