119 N.W. 360 | N.D. | 1909
Section 168 of the Constitution of this state, as far as pertinent to the present controversy, reads as. follows: “All changes in the boundaries of organized counties, before taking effect, shall be submitted to the electors of the county or .counties to be affected thereby at a general election and be adopted by a majority of all the legal votes cast in each county at such election.” At the general election in 1908 several propositions for the division of, and the creation of, new counties from the present county of Ward were duly submitted to the electors of that county. None of the propositions received! a majority of the votes cast thereon, except the one relating to the creation'of the county of Mountraille. This question received 4,207 affirmative votes, and 4,024 negative votes.
;It is shown that the various candidates for governor of the state received at that election in Ward county the aggregate number of 9,259 votes. It is apparent from these figures that the proposition to create the new county of Mountraille, while receiving a majority of the votes -cast on that proposition, did not receive more than half as many favorable votes as the total vote for governor. On application of the Attorney General the alternative writ of this court was issued, directed to the Secretary of State and the county auditor of Ward county, requiring them to certify, and return a transcript of the record's, certificates, and returns in their custody, etc., to this court, and these officers were by the writ commanded to desist from proceeding in the .premises until the further order of this court. Return was duly made by the respondent Blaisdell, as Secretary of State, showing the number of votes cast on- the question, and the total number of votes cast for govern- or, as above set forth, and both parties appeared by counsel and submitted their arguments.
The sole question for determination is the proper construction of section 168, supra, as applied to the facts disclosed by these returns. The relator contends that the section referred to, properly construed, requires an affirmative vote equal in number to a majority of the total votes cast for the different candidates for governor, or more than half the highest number of votes cast in Ward county for candidates for any one office, or on any one question,
¡We deem it advisable to first consider and determine -the meaning of certain wo-rd-s contained in the constitutional provision qu-oted Stripped of meaningless -words, as applied to- the present -controversy, -and to simplify -matters, we may read that portion of section 16-8 quoted as follows: “All changes in the boundaries of organized-counties shall be submitted to the electors at a general election and
We next come to- the interpretation -of the words “votes cast,” and to aid us in this we may seek a definition of the word “voter.”
The word “vote,” used as a noun, is the expression of the choice or preference of the voter. The choice may be exercised in several different manners; viva voce, by the use of a ballot; by show of hands; by a division of the house or meeting and possibly by other methods. Before the public recognized the wisdom of a secret ballot electors in many places exercised their right to cast their votes by the viva voce method or by a show of 'hands. When those methods were in vogue, and of necessity as a general rule, each question was submitted separately, and when not so> submitted, any person desiring to vote had a right to demand a division of the question. In other communities a ballot was used, and a separate ballot cast for each officer or on each question. Sometimes separate ballot boxes were used — one for each office to be filled, or for each group of offices, like 'state, county, township, etc. In states or communities where either of these methods was employed, the elect- or desiring to exercise his right to vote was frequently 'compelled' to remain during the entire day of election at the polling place, and in readiness to vote on any proposition which might lawfully be submitted during the day. To obviate this inconvenience; to facilitate the proceedings; to enable the elector to cast a secret ballot, and to guard against mistakes and fraud; and with the advance of intelligence on questions relating to the privileges and duties of electors — some system of balloting has been almost universally
In the case at bar the statutes of this state require the submission of amendments to the -Constitution, ¡creation of new counties, and -other similar questions to the voters -on a ballot separate and distinct from the -ballot used -in voting for the various officers, and
According to the American doctrine the majority is entitled to rule — the preference of a majority on any question is expressed by the vote of those who actually vote, unless a different intention is clearly expressed. The choice of the voter is expressed by the vote he actually oasts for or against a proposition. To adopt the relator's theory in this proceeding would be to give as great weight to a vote which was not cast as to' one which was cast, and in effect would be to count the electors who- voted for governor, and did not vote on the county division question, as voting against the division. It ought to require the plainest language, and that it be so expressed as to leave absolutely no doubit in the mind of the intelligent reader of its meaning to justify a court in holding that no vote counts precisely the same as though the vote had been cast against the proposition. The correct principle applicable in -cases where the meaning is ambiguous, or is not so expressed as to clearly indicate that an elector who does not vote shall be held as voting “No,” is that electors who do not .participate in an election, or are not interested enough in public affairs to attend t-he polls and cast their vote and express a choice, acquiesce in the result of the votes cast by those who do vote, whatever such result may be. It is equally plain that if an elector enters the booth and votes for some candidates and not for others, or votes fo-r all candidates, but fails to express his choice on a question submitted the delegates to those who do vote his rights as an elector and acquiesces in the result, be it one way or the other. See Marion v. Winkley, 29 Kan. 36; Walker v. Oswald, 68 Md. 146, 11 Atl. 711; Tinkel v. Griffin, 26 Mont. 426, 68 Pac. 859; Miller v. School Dist., 5 Wyo. 217, 39 Pac. 879; People v. Chute, 50 N. Y. 451, 10 Am. Rep. 508; Montgomery Co. Fiscal Court v. Trimble, 104 Ky. 629, 47 S. W. 773, 42 L. R. A. 738; Cass County v. Johnston, 95 U. S.
In the case at bar it happened that the candidates for governor received more votes than the candidates for any other office in Ward county, but the court has no knowledge land no method is provided by law for advising the court officially how many ballots were actually cast in Ward county at the last election. It is a fact of universal knowledge that in an election in which any considerable number of electors participate, some voters fail to vote for any candidate for one office, and others for any candidate for some other office, and that the candidates for no office ever receive at a general election votes equalling the total number of ballots used or electors participating on some question. From this it is self-evident that if the principle contended for by the relator is correct that the standard to be employed or the means to be used in determining whether the division proposition carried should be the number of ballots used, because they indicate the number of electors who actually participated in the election, and they furnish the only means for acquiring this knowledge. Yet the law malees no provision whereby any state official can determine how many electors actually participated in the Ward county election. It is obvious that had the Legislature adopted the construction placed upon section 168 of the Constitution by the relator, it would long since have provided these means.
It is contended that the words “at such election” enlarge the application of the words “votes cast,” and clearly indicate that the highest vote cast on any question at the general election is the criterion by which a majority must be arrived at. But, from the suggestions and reasons we have stated above, and particularly from a consideration of the meaning of the words “votes cast,” it is clear to us that this contention is erroneous. It certainly leaves the meaning ambiguous, and in that event it is conceded that a majority of the votes cast on the question at issue controls. It is argued that to give it this effect we must add to the sentence the words “on such question,” or their equivalent; that without such addition the meaning is as contended for by the relator. We, however, think that to give the provision the interpretation which the relator favors, it would be necessary to- read into the sentence “on any’question or for any candidate.” It is a well-established rule of statutory construction, and in accord with common sense, that
It is also urged that the fact that in different sections of the Constitution, relating to different subjects which are to be submitted to a vote, the language is not uniform, and in some of them it is specified explicitly that the vote referred to is the vote cast upon the question in hand; that therefore section 168, not being so specific, must have been intended to operate in accord with relator’s contention. It is well known that in the constitutional convention various committees were appointed, each having jurisdiction over a subject differing from 'those being considered by the other committees. They did not act in concert on questions of this ¡character. One might copy a provision from the Constitution of one state, and another from some other state. This undoubtedly accounts for the varying phraseology of the different provisions for submitting questions to a vote, and necessitates considering each one independently of the others. We, however, may mention one other provision; namely, that relating ¡to amendments to the Constitution. Section 202 requires proposed amendments to toe submitted to the people, and if they approve and ratify “toy a majority of the electors * * * voting thereon,” the amendment becomes a part of the Constitution. This section permits the amendment of the Constitution toy only -a majority of the electors voting on the proposed amendment. The amendment of the 'Constitution is the most important political function which the people can perform. The change of county boundaries and the erection of new counties is of minor importance as compared with a ¡change in the organic law. It seems very unlikely that the framers of the Constitution should have contemplated that a mere change in county ¡boundaries, or the question of forming a new county, should require the assent of a larger proportion of the electors than is necessary to change the fundamental law. Aside from the considerations ¡which we have set forth, leading to the conclusion at which we have arrived, nearly every authority which we have been able to find after a careful search, ¡construing provisions like those of section 168, or in effect the same, sustains our view.
The -conflict in authorities, to which we referred in the beginning, is more -apparent than real. In many states the courts have held the peculiar provisions they were considering as requiring the .assent of a majority or -other percentage -of the electors; the word “electors” being employed in some instances, and in others the words “voters” o-r “qualified voters,” in.such -connection as to indicate that electors were meant. Several -of these cases distinguish -clearly between the language of section 168 and that construed. Among the authorities which have -passed upon the proper interpretation of “votes cast,” and provisions in effect like those of section 168, and where such language has been held to -only -require a majority of the votes cast upon the question at issue, are Gillespie v. Palmer, supra; Sanford v. Prentice, supra; Board v. Winkley, 29 Kan. 36; State v. Echols, 41 Kan. 1, 20 Pac. 523; State v. Grace, 20 Or. 154, 25 Pac. 382; Territory ex rel. McGuire v. Board of Trustees, 13 Old. 605, 76 Pac. 165; Chamlee v. Davis, 115 Ga. 266, 41 S. E. 691; Dunnovan v. Green, 57 Ill. 63. Others construing somewhat similar provisions, many of them going much farther than is necessary in the case at bar to sustain a vote of a majority only of those voting upon the question, or distinguishing the language they were considering from that employed in section 16-8, are as follows: South Bend v. Lewis, 138 Ind. 516, 37 N. E. 986; Dayton v. St. Paul, 22 Minn. 400; Howland v. Board, 109 Cal. 152, 41 Pac. 864; Fritz v. City, 132 Cal. 373, 64 Pac. 566; Taylor v. McFadden, 84 Iowa, 262, 50 N. W. 1070; Day v. City of Austin (Tex. Civ. App.) 22 S. W. 757; Green v. Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep, 169; Yesler v. Seattle, 1 Wash. 308, 25 Pac. 1014; Strain v. Young, 25 Wash. 578, 66 Pac. 64; Fox v. Seattle, 43 Wash. 74, 86 Pac. 379; Walker v. Oswald, 68 Md. 146, 11 Atl. 711; Tinkel v. Griffin, 26 Mont. 426, 68 Pac. 859; Miller v. School Dist., 5 Wyo. 217, 39 Pac. 876; State v. Rhue, 24 Nev. 251, 52 Pac. 274. Several courts have held that the question to be determined was the method -or means by which the number of electors of the district was to be ascertained officially; and in some such cases, where the
The application is denied, and the temporary writ quashed.