137 N.W. 427 | N.D. | 1912
Lead Opinion
On the 15th day of June an order was issued by.the chief justice requiring respondent, as county auditor of Morton county, to show cause before this court on June 20th, why a peremptory writ of mandamus should not issue commanding him to amend and correct the instruction cards required by law to be furnished by him to the election officers of the several precincts within his county, so as to'contain, among other things, the following instruction: “Where there are three or more candidates for the same office, the voter may vote for both first and second choice, but that a failure to vote a second choice will not affect the validity of the ballot for that office.”
On the return of such order to show cause there was no appearance on behalf of respondent. Prior to making such application to this court relator applied to the attorney general to approve the same, which he declined to do, but expressly disapproved such application. The question involved being one publici juris, wherein is directly involved the sovereignty of the state and its prerogatives and the franchise rights of its citizens, it is well settled that this court may, in the exercise of its original jurisdiction, issue the writ prayed for as a prerogative writ on the petition of a private relator, even though the attorney general refuses to make the application or to approve the same. State ex rel. McDonald v. Holmes, 16 N. D. 457, 114 N. W. 367. Relator is a candidate for nomination for the office of attorney general of the
The attorney general, more than a month prior to his application, having given an official opinion contrary to relator’s contention, which opinion has been generally published throughout the state, and there being grave doubts entertained as to whether second choice voting is made compulsory rather than permissive by' said act, it is of vital importance to the electorate of the entire state that the question be settled by this court in advance of such primary election, to the end that there may be uniformity of voting, and also" to avoid serious complications which might otherwise subsequently arise in counting and canvassing the votes and returns following such state-wide election. As stated by counsel for relator, it is not so important as to what the rule is as it is to have such rule settled in advance of the primary election.
Section 621, Revised Codes 1905, prescribes that “each county auditor shall cause to be printed on cards, in large type, full instructions to electors as to the manner of obtaining and preparing ballots, and also containing a copy of §§ 683, 684, 8614, and 8615. ILe shall furnish ten such cards to the judges of election-in each election precinct, and the judges of election shall at the opening of the polls post at least one of such cards in each booth or compartment provided for the preparation of ballots, and at least three of- such cards in and about the polling place,” etc. Pursuant to this statutory mandate, respondent had prepared and was about to furnish such cards of instruction to the judges of election in the various precincts of Morton county, containing, among other things, the following: “When there are three or more candidates for the same office vote for both first and second choice, but do not vote for the same candidate -for both first- and sec
With these preliminary observations, we now proceed to construe chapter 212 in so far as it relates to first and second choice voting.
It is important to notice that this statute nowhere expressly and directly commands the voters to vote for both first and second choice, and unless it can legitimately be said, that the legislature, by the indirect method of employing the language, “vote for both first and second choice,” in prescribing the form of the official ballots, thereby intended to lay down a positive rule making it compulsory for each voter to express a second choice under the penalty of rendering his first
But the history of our primary election law is quite conclusive in supporting the construction contended for by relator. At the time of the enactment of chapter 212 of the Laws of 1911, Washington was the only state, so far as we are aware, requiring compulsory second choice voting; the policy of the other states having primary election laws being to make second choice voting permissive and optional. In the state of Washington it is expressly made compulsory to vote both a first and second choice in certain instances. Section 18 of chapter 209, Laws of 1907 of Washington, being their primary election law, reads as follows: “In all cases where there are four or more candidates
In the light of this express legislative mandate there can, of course, be no question as to the effect of a failure to vote for second choice, and the case of State ex rel. Duryee v. Howell, 59 Wash. 634, 110 Pac. 543, and other cases decided by that court, can, of course, throw no light upon our statute, which radically differs from the Washington statute in this one respect. It is a significant fact and most persuasive to our minds, that our statute was borrowed from the state of Washington with their § 18, supra, omitted. This is made apparent. from a comparison of the two statutes which are identical in many respects. This being true, the conclusion is irresistible that our legislature omitted § 18 of the Washington statute deliberately, and with the intention of not adopting that phase of the Washington .law making second choice voting compulsory. No other intent.is possible. But even were this not so, and if there were no side lights to aid us in the interpretation of our statute, we still would have no hesitancy in sustaining 'relator’s contention. The most that can be said to the contrary is that the words, “vote for both first and second choice,” are mandatory. Conceding, for the sake of argument, the correctness of this interpretation, it by no means follows that a failure to comply with such mandate would have the effect of nullifying the first choice vote. To so hold would be judicial legislation, for it would be reading into the statute something which is not there. When the legislature has studiously refrained from prescribing what the penalty shall be for- disregarding such mandate, is it the function of the courts to do so ? . Host clearly not. The courts are not warranted in assuming, from the language .employed,. any such -legislative 'intent. But we do not • deem the
We are not unmindful of the fact that the supreme court of Idaho in the recent case of Adams v. Lansdon, 18 Idaho, 483, 110 Pac. 280, under a like statutory provision,, reached the conclusion that such statute was mandatory, and that a failure to vote for second choice rendered the first choice vote a nullity. In giving his opinion, the attorney general, no doubt, relied on this case. We have carefully read the opinions in such case, and, with due respect for the judgment of that court, we are, for the foregoing reasons, forced to disagree with both the reasoning and conclusion of the court on this point. It is apparent that the construction placed on the Idaho statute by the court did not meet with favor by the people, for, within a few months after such decision was made, the legislature of Idaho amended the law so as to permit optional second choice voting. We held in the recent case of Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95, in an opinion by the present chief justice, that “negative words are generally held to be mandatory,” and it was accordingly there held that the words, “no vote shall be received at any election in this state if the name of the person offering such vote is not on the register . . .,” were mandatory. But, as we have above stated, no negative words are employed in the act in question relative to first and second choice voting.
The writ will issue as prayed for.
Dissenting Opinion
(dissenting). I can see much force in the argument of the majority opinion in this case. I cannot, however, believe that it rightly construes the statute in question, or the legislative intent which lay behind it. It is to be remembered that, in determining such case, it is
“But if there were doubt as to the proper construction of other provisions of this act,” the Washington court says in State ex rel. Duryee v. Howell, 59 Wash. 634-639, 110 Pac. 543, “that doubt is removed by the
The form of ballot prescribed in Washington was practically the same as ours. Above the names of the candidates were the words, “vote for' both first and second choice for this office.” The Washington court held that it could not instruct the auditors to prepare a ballot which was contrary to the form of the statute. The relator in this case has asked the court to instruct the auditors that the language of the statute and of the ballots which has been prescribed by the legislature does not mean what it says. See also State ex rel. Zent v. Nichols, 50 Wash. 508, 97 Pac. 728.
When the act in question was passed'by the legislature, we must re member that the Idaho and the Washington decisions were in the books and before it. In the Idaho decision of Adams v. Lansdon, 18 Idaho, 483, 110 Pac. 280, the court, on page 492, said: “'The language used in said § 14 in regard to voting for a second choice is as follows: Note for both first and second choice if there are more than twice as many candidates as there are positions.’ Said language is a command, and indicates a clear intention on the part of the legislature to require the voter as a condition on which he might exercise his first choice, that he
It is strange, indeed, that if our legislature did not intend that the words, “vote for both first and second choice,” should be mandatory, that they should have adopted the Idaho statute as construed by the decision aforesaid and by the decision of the supreme court of Washington, when, by merely adding the words, “if you desire,” or “at your option,” they could have made the contrary intention perfectly plain.
Another reason for holding the statute to be mandatory is the history of the legislation, and the political and social thought which led up to it, and the evil which the legislation was intended to obviate. One cannot read the articles and addresses which for the last twenty years have appeared' upon the subject in the reviews and magazines of America, without being impressed with the fact that what the proponents of the idea had in mind was a majority vote and the making it impossible for
Again we find the following in the November, 1909, number of the Political Science Review: “Following our universal practice in regular elections, most of the direct primary laws provide for nomination by
We are cognizant of the fact that the law writers generally state that in the absence of a specific statutory mandate, “the courts will . . . so construe . . . [election] laws as to prevent the disfranchisement of voters by reason of irregularities and omissions of officials, or by reason of a failure of the voter to comply strictly with the law in preparing and marking his ballot.” 2 Lewis’s Sutherland, Stat. Constr. § 709. We know of no cases, however, where this rule has been applied, where the voters, by their failure or omissions, have nullified the whole purpose of the election laws under which they were acting. There is a wide difference between throwing out a ballot because it is not properly initialed by the judges of election, and throwing out a ballot because the statute has applied to the primary the majority rule of the convention (and after all a primary is merely a statutory political convention), and the voter has refused to abide by that rule. As we said before, the very purpose of the statute and of the second choice idea is to bring about majority nominations, and we are assured that the construction given by the majority of this court will defeat the very purpose for