209 P. 1060 | Mont. | 1922
delivered the opinion of the court.
This is an appeal from a judgment dismissing the contest made by C. E. Thompson, the appellant herein, of the election of George M. Chapin as the nominee of the Republican party in Rosebud county for the office of sheriff of that county at the general election to be held in November, 1922. Both were regularly qualified candidates for nomination to such office on the Republican ticket at the primary election held in Montana and in Rosebud county on August 29, 1922. The appeal is
The only question is as to whether the votes cast in Carters-ville precinct are illegal because of the failure of the electors who voted to sign their names upon the precinct register book at the time of voting. The same question is presented as to five other precincts in the county, but may well be determined by a consideration of the facts appearing with regard to Cartersville precinct alone.
The official canvass of the votes for such nomination showed the respondent, George M. Chapin, to have received 588 votes, and the appellant to have received 570 votes; and the respondent was declared to be the nominee of the Republican party for such office of sheriff at the ensuing general election.
It appears that in Cartersville precinct the registration-books, with other voting material, were regularly furnished for the primary election, which books contained the names of all the registered electors entitled to vote in that precinct, and in a separate column opposite the name of each there is a space provided for the signature of each voter; that at all times during the progress of the election such registration-books were openly in the custody of the election officials, but that none of those who voted and whose ballots were canvassed and counted signed the precinct register book or books, and that such books are now in the office of the county clerk and recorder without the signature, in the column reserved for that purpose, of any of those who voted in that precinct at such primary election.
If the votes cast in Cartersville precinct are illegal, and therefore not proper to be canvassed and counted, the result of the primary election will be changed, so as to make the appellant, C. Ef. Thompson, the nominee of the Republican party for such office of sheriff. By discarding the votes cast in this precinct, thirty-one in all, two are deducted from the official total of the appellant, giving him 568 votes, and twenty-nine are deducted from the respondent’s vote making it total
The able district judge, George A. Horkan, in an elaborate opinion, incorporated in the record on appeal by stipulation, reviewed the statutory provisions and the decisions of this court, and therein! stated: “The learned counsel for contestant, Thompson, argued with great force that the court should eliminate from the count and declare illegal the votes cast in said precincts for the reasons herein designated; that no question of the elector’s right to vote or the loss of a vote for a person for an office is at issue; that the electors whose ballots may not be counted in a primary election have lost nothing, no inherent right, no constitutional guaranty, no sacred personal thing; that the ‘rules of the game’ as laid down by the legislature should be carried out literally and be declared mandatory when applied to a primary election, even though the same ‘rules of the game’ have been held by our own supreme court and other courts of the country as merely directory when applied to general or other elections to office; that said sections 576 and 704 should be complied with, and that a failure of an elector to comply with said sections has the same legal effect as the failure of an elector to register prior to an election in conformity with other chapters wherein section 576 is contained, for the reason that said law and said legislation was enacted to secure the purity of elections and to guard against abuses of the elective franchise. The doctrine which counsel for contestant, Thompson, so forcibly and ably advanced is novel and unique. Unfortunately for contestant, we find no Montana authority to support it. We cannot subscribe to the doctrine thus advocated by counsel for contestant, for, if we did so, in our opinion we would be going contrary to a long line of decisions of our own supreme court and other high courts which hold similar statutes to that involved here as directory, and not mandatory. We also would be compelled to disregard the equally well-established rule that election laws must be liberally construed.”
That the district, court was correct in its decision and judgment clearly appears from a reference to the history of the statute. It was enacted first in 1911, and therein “the judges of election in each precinct” are required to “mark a cross (X) upon the line opposite to the name” of each elector in the register book “when-said elector shall have voted.” (See. 26, Chap. 113, Laws 1911.) As amended in 1913, in addition to being required to “mark a cross (X) upon the line oppos:te to the name of the elector *' * is upon one of the precinct register books,” “the judges of election in each precinct,” “before any elector is permitted to vote, * * * shall require the elector ■ to sign his name upon one of the precinct register doolcs, * * * in a column reserved in the said precinct books for the signature of electors.” (Sec. 26, Chap. 74, Laws 1913.) This same provision was re-enacted in 1915 (sec. 26, Chap. 122, Laws 1915) and is now section
It is made the duty of the judges of election to require the
The following general principles applicable were early given approval by this court in a decision by Mr. Justice De Witt, as follows: “ ‘Statutes tending to limit a citizen in the exercise of the right to vote should be liberally construed in his favor, and exceptions which exclude a ballot should be restricted, rather than extended, so as to admit the ballot if the spirit and intention of. the law is not violated, although ®a liberal construction would violate it. The result, as shown by the ballots deposited by legal electors, must not be set aside, except for causes plainly within the purview of the statute.’ # * * ‘phg departure from the law in matters which the
The general rule laid down by this court, which appears to be universally recognized, is that the right of our citizens to vote at an election cannot be defeated because of the failure of election officials to perform an administrative duty in the conduct of. the election, specifically imposed upon such officials. (State ex rel. Brooks v. Fransham, 19 Mont. 273, 48 Pac. 1; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; Carwile v. Jones, 38 Mont. 590, 101 Pac. 153; Stephens v. Nacey, 47 Mont. 479, 133 Pac. 361; Harrington v. Crichton, 53 Mont. 388, 164 Pac. 537.)
“Various provisions are made by statute for recording the names of persons who vote, such as provisions for placing a check mark or letter V opposite the name of a voter on the certified list of voters, or for recording his name on the poll sheet, or for requiring him to sign a roster. The duties imposed by such statutes are to be performed by the election officers and a failure on their part to perform them, or a mistake in doing so, does not invalidate the vote of an individual elector or the votes of the entire precinct.” (20 C. J. 177.)
- Ignorance, inadvertence or even intentional wrong on the
In this instance the failure to comply with the statute was the fault of the judges, as it does not appear that they required the electors to sign the registry book before voting. The electors were not to blame. They did just as was required of them by the officials in charge of the election. Had
The judgment is affirmed. Remittitur forthwith.
Affirmed.