Gilleland v. Schuyler

9 Kan. 569

• Court: Supreme Court of Kansas
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Brewer, J.:

1. Repeal of statutes effect of. 2. Legislature; binding successor. 3. Right to contest elections. 4. Ch. 104, prospective application. 5 Ch. 79 1871 - its effect on pending proceedings. This is a contest over an election for the relocation of the county-seat of Osage county, and the question which meets us on the threshold is, as to the effect on this proceeding in contest of the repeal, prior to its determination, of the statute under which it was had. The proceeding was commenced under ch. 27 of Laws of 1869, p. 101, which act provides fully for all proceedings in the case, including that of a review by this court. In other words, it is a statute providing for the contest of elections of this kind, giving a remedy by proceeding otherwise unknown to the law. After suit commenced, issue was joined therein -as provided by this peculiar statute of 1869, and a large volume of testimony was taken to substantiate the issue so joined. Continuances were had until the time of the final trial, at which a motion was made to dismiss the proceeding, ■on the grounds that the statute authorizing the proceeding had been repealed. (Laws of 1871, ch. 79, §10, p. 194.) The court denied the motion, and an exception was duly taken. It will not be disputed that the repeal of the act by the statute of 1871 is as full and complete as language can make it. “Is hereby repealed,” is the language used. This proceeding is alone authorized by the act of Í869. It is purely statutory. Without that cxpi-ess statute it could not have been had, but the party would have been forced to resort to other means of redress for his supposed injuries. It will not be denied that the ■ordinary effect of the repeal of a statute is to put an end to all proceedings under it, then pending and undetermined. So that unless there be something to take this out of the ordinary rule, the point is well made, and the proceeding should have been dismissed. Chap. 104 of Gen. Stat., p. 998, is entitled “an act concerning the construction of statutes.” It is, so far at least as any question here is concerned, simply a continuation of the law of 1859. It purports to contain rules for determining the meaning and extent of certain words and phrases when used in the statutes, as well as the-effect of certain acts and doings of the legislature. The first section commences in this way: “In the construction of the statutes of this state, the following rules shall be observed, unless such construction would be inconsistent with the-manifest intent of the legislature, or repugnant to the context of the statute: First, The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.” Two questions are made: What is the effect of this statute on after legislation? and, What is the power of the legislature-in this direction? In regard to the latter ques- . ° * (¿on it may be conceded that each legislature-is supreme and independent of those preceding, so far as matters of naked legislation are concerned; and where nothing results in the nature of contracts, or vested rights, no one-legislature can bind another. In determining its' rules of procedure, the effect of its enactments, in deciding what past laws shall stand, and what be repealed, each legislature is free and absolute. “ Of no validity and void are, it is alleged, such acts as affect to bind future parliaments:” Dwarris, 75. “ One legislature cannot abridge the powers of a succeeding legislature:” Per Marshall, C. J., in Fletcher v. Peck, 6 Cranch, 335. The right to contest an election is no vested right- Given by one legislature, it may be taken away another. Even the commencement of a contest gives no vested right to complete it. “In medias-res,” a legislature may intervene, repeal the statute, and terminate the litigation. The power of the.legislature of 1871 to stop this proceeding in contest, by a repeal of the statute-under which it was pending, is therefore beyond controversy. Returning now to the first question, we inquire as to the effect of the statute cited (ch. 104, Gen. Stat.,) on after legislation. The repeal of a statute does not affect “any proceedings commenced.” ' The plain import of this language is, that any proceeding commenced U]1(jer a statute may be prosecuted to completion, notwithstanding the repeal of such statute. To what does this language refer? the present, alone, or both the present and future? Does it apply only to laws then in force, or is it also prospective in its operation, and applicable to all future legislation until it is itself in terms repealed? A careful examination of the whole statute seems to us to clearly ■show that it was intended to be of prospective and permanent application. By it the legislature laid down certain rules to guide in the interpretation of all legislation, present and future. Of course the rules themselves are subject to future legislative supervision and repeal; but unchanged, and unrepealed, subsequent legislation must be understood as made with reference to and upon the basis of them. They constitute a set of quasi legislative by-laws. Eor instance, the twenty-seventh claiise recites that “the phrase, ‘under legal disability,’ includes persons within the age of minority, or of unsound mind, or imprisoned.” By it therefore, whenever in any subsequent law that phrase is used, it will be understood that all these differept classes of persons are meant. If a legislature wishes to exclude any one of these classes from the provisions of a law it is passing, it must use some other phrase than “under legal disability,” or use some words or terms of exclusion, or change the present statutory definition. A legislature leaving these rules and definitions unchanged, virtually re-enacts and continues them. By this no power is ascribed to one legislature, which is denied to a subsequent; but granted the power to change, or repeal, a failure to do either implies an intention to continue them in f°rce- Hence it seems to us, that if the legislature of 1871 intended to stop all proceedings then pending under the contest-law of 1869, it should have added a clause in terms ending such proceedings, or else .suspended or repealed the law of 1868 so far as it declared the effect of a repeal of a statute. The case stands thus: A law is in force declaring that the repeal of a statute shall not affect proceedings already commenced. Proceedings are commenced. The statute is then repealed. Can we say that the legislature intended more, by that repeal, than the law declared should be the effect of a repeal? We think not; and hence hold that there was no error in overruling the motion to dismiss the proceeding.

6. Hearsay; declarationon of voter. 7. Testimony immaterial, II. The next question that meets us is made on the admission of testimony. A witness for defendants in error, Eli Crane, testified that he was at Lyndon on the day of the' election. He further testified: “ I first saw Dr. Calhoun. He was a resident of Lyndon, and a property-owner, and postmaster there. I think he was interesting himself in the election.” Question by plaintiff’s counsel: “What remarks were addressed to you by him that day?” Objected to as incompetent, and hearsay testimony.. The objection was overruled, and defendants excepted. Other questionsoí like nature were asked, objections ot the same-kind raised, and like rulings and exceptions; and in response the witness testified substantially, that the Doctor invited him to go over to Douglas precinct with a party, and vote thereunder assumed names. He subsequently testified that the-party went and thus voted. Again the witness, after testifying that a person residing at Lyndon voted at Douglas-precinct, was asked: “ Do you know from his own statements, under what name he voted?” Objected to as hearsay, overruled, and exceptions. Answer—“He told me ‘R. Crum.’”' Q.—“What statement did he make as to the number of' times he voted, at that time or within a day or two?” Objected to as incompetent and hearsay testimony. Objection overruled, and exception. Answer—“He stated to me ona the same day that he had voted five times that day.” Still again the same witness, against defendants’ “objection and exception,” was allowed to state the conversations of various-persons whilst returning from the election at Douglas precinct, and as to their voting, and the number of votes cast by them. That so much of this testimony as purports to give the statements of third parties as to the number of times and the names under which they had voted, is hearsay,, and incompetent, seems to us clear. It is the testimony of what other persons told the witness, persons not parties to the suit, so that their admission could be receivable. These declarations were not made at the polls by persons conducting the election, and so as to make part of the res gestee; nor do they accompany a principal fact which they serve to qualify or explain. They are simply statements, concerning past transactions by strangers to the record. They come within none of the exceptions to the rule which excludes, hearsay testimony. It was perfectly legitimate and competent to prove the casting of fraudulent votes, but it was not competent to prove that fact by the statements of parties who claimed to have cast them. It may be said that the contest was between Lyndon and Burlingame, and that all persons supporting either were principals on the one side or the other. But this is true no more in case of a contest between towns for the county-seat, than between individuals for an office. Surely, a candidate for the office of governor would hardly feel that all who voted for him so far represented him that in case of a contest their admissions and statements could bind him on the question of fraudulent votes. No more is it true in the present case. We have examined the cases of People v. Pease, 27 N. Y., 45; State v. Olin, 23 Wis., 319, and the note in 3 McCord, 230; and so far as they enunciate any principle contrary to the doctrines here announced we disapprove them. It may be said that the testimony was immaterial,, and that the error worked no substantial injury to the plaintiffs in error, because, first, there was sufficient testimony without this to support the findings, and secondly, there was no finding that these specific fraudulent votes, or indeed that any fraudulent votes, were east. The rule that requires this court to sustain the findings of the district court unless clearly against the weight of evidence avoids the first reason, for we cannot say how much this testimony influenced the court in its findings, nor determine whether without it the findings would have been as they are. If testimony is erroneously received which may have influenced the court or jury in the findings or verdict, we cannot call the error immaterial. The findings or verdict must be based upon nothing but competent testimony before any presumption in favor of their correctness will arise in this court. For, otherwise, the court or jury may, disbelieving the witnesses who give competent testimony, reach their determination mainly or wholly on the incompetent evidence, and so a party obtain a judgment he is not in fact entitled to. The record must be clean, which, when passed upon by court or jury, is sought to be sustained in this court because it has been so passed upon. Nor is the second reason sufficient, for while there is no finding of the casting of specific fraudulent votes, the findings show that the learned judge of the district court was convinced of a fraudulent combination in Lyndon to carry the election, a combination to which the judges and clerks of election, as well as voters, were parties, and the testimony of this witness Crane, if competent, tends strongly towards proving such combination. We arc led therefore to the conclusion that this testimony was incompetent, and the error substantial. This would be sufficient to compel a reversal of the judgment.

We might stop here, but there are questions presented in the record, and discussed by counsel in their briefs, which will arise on a second trial of this case, and which therefore demand our consideration. The result of the election as shown by the canvass of the county commissioners was a majority of 146 votes for Lyndon. At Lyndon precinct 421 votes were counted, of which all but one were for Lyndon. Rejecting the votes cast at Lyndon, Burlingame received a majority. The conclusion of law reached by the district court was, that the election “ was fraudulent, illegal, a'nd void, so far as the voting precinct of Lyndon was concerned,” and that therefore Burlingame remained the county-scat. Those findings of fact upon which the district judge based his conclusion that the election at Lyndon was illegal, are as follows:

3d.-(In substance, that the election was held in a building in which liquor was sold, though in an adjoining room, and •one separated from the election-room by a partition without floor or other passage.)

“4th.-The votes at said election at said precinct were received through a space in the sash of the front window left after removing one pane of glass, which said pane of glass had been removed from said window for that purpose, the space so left being 12 by 14 or 16 inches, and that the said front window with the exception of the space so left as aforesaid, was darkened or obscured by paint, or some other substance, in such a manner that no person on the outside could see what proceedings were being had on the inside of said room during said election, except through said space left open as aforesaid, and very frequently not through this space whilst persons were voting.

“ 5th.-That said window was so darkened or obscured at the instance and request of a person who was actively engaged in said election, in the interest of the town of Lyndon for county-seat of said Osage county, and on the evening before said election, and with a view of holding the said election.

“ 6th.-That the friends of Burlingame were not afforded a full and fair opportunity of challenging votes at said precinct at said election, or of free access into the room where such election was held during the voting, dr of seeing how the election was conducted inside the room, but were permitted to be present at and during the canvassing of the votes polled at said precinct. That the judges of election at said precinct were implicated in this hindrance, and seemed to act in unison Avith the parties outside Avho contended that no one from Burlingame had a right to be in the room during the voting, or had a right to challenge Arotes at- said Lyndon precinct at said election.

“ 7th.-That no attention Avas given by the judges of election at said Lyndon precinct during said election to challenges of votes when made by the friends of Burlingame.

“8th.-The judges and clerks at said Lyndon precinct, at said election, AArere partisans for the toAvn of Lyndon, and had an interest in having the county-seat of said Osage county located at said toAAm of Lyndon.

“9th.-That persons in the interest of the said town of Lyndon were allowed free access to tbe room where the voting was conducted at said election at said precinct during the-holding of such election.

“10th.—That the plan pursued at said election at said precinct afforded ample opportunity for perpetrating the grossest frauds, and afforded no adequate if any means of detecting them.”

13th, 14th, 15th, 16th.-(In substance, that there were three-voting precincts in the township in which Lyndon was situated, and that the township trustee, and one of the two justice» of the peace of said township, were acting as judges in the other precincts.)

“17th.-That there were but two judges of election either elected, appointed, qualified, or acting at said Lyndon precinct at said election on the 18th of October 1870, and that one of such judges was R. H. Wynne, one of the justices of the peace for said municipal township, and the other of such judges was Moses Bradford, sr.; that said Bradford was not present among the bystanders at the polls when he was elected as such judge, but was elected by the persons at the polls, and afterwards notified of such election, after which he appeared, was qualified, and acted.

“18th.-That the clerks of election at said election at said Lyndon precinct were not appointed or selected by the judges of election at said precinct.”

8. Elections mere irregularities will not vitiate. 9. statutory rules; when directory. 10. Election board where only two ges'act. facto 11. Wrongdoing is matter of proof, not inference. 12. Challenges right truction of statute. 13. place of holding S^fntoxicatmg liquors. These are all the findings of fact which bear upon the question of fraud or illegality in the election at Lyndon. Questions affecting the purity of elections are in this country of vital importance. Upon them hangs the experiment of self-government. The problem is to secure, first, to the voter a free, untrammeled vote; and secondly, a correct record and return of the vote. It is mainly with reference to these two results that the rules for conducting elections are prescribed by the legislative power. But these rules are only means. The end is the freedom and purity of the election. To hold these rules all mandatory, and essential to a valid election, is to subordinate substance to form, the end to the-means. Yet on the other hand, to permit a total neglect of all the requirements of the statute,, ancj gfcill sustain the proceedings, is to forego the lessons of experience, and invite a disregard of all those provisions which the wisdom of years has found conducive to-the purity of the ballot-box. Ignorance, inadvertence, mistake, or even intentional wrong on the part of local officials^ should not be permitted to disfranchise a district. Yet rules, uniformity of procedure, are as essential to secure truth and exactness in elections as in anything else. Irregularities-invite and conceal fraud. “That a mere irregularity .on the-part of the election officers, or their omission to observe some merely directory provision of the law, will not vitiate the poll, is a point sustained by the whole current of authorities j but there has existed a great conflict of opinion as to what-is an irregularity, and what is matter of substance.” Leading Cases on Elections, Brightly, p. 448. The rule is thus-laid down by this court in th§ case of Jones v. The State, 1 Kas., 279: “Unless a fair consideration of the statute shows-that the legislature intended compliance with the- ... x provision in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as-directory merely.” Following the rule thus laid down,, which seems to us to state the law succinctly and clearly, let us examine these different facts found and see how far they sustain the conclusion. We will reverse the order in which they are stated by the district court. And first, as to the irregularity in the mode of appointing or electing the clerks and judges, and the fact that there were but two judges-qualified or acting. How the clerks secured their positions-we are not told. They should have been appointed by the judges. Gen. St-at., 404, § 3. They were not. Yet the judges accepted them as clerks, recognized them as such. One of the judges was so de jure. Both judges and clerks-were officers defacto. They formed an election board. They were recognized as such by all persons having occasion to-deal with an election board during the whole term of office-of such board. Their acts as such officers can no more be questioned, collaterally, now, than can the acts of one who-has served as mayor of a city during a term of two years,, with the general recognition of community, be questioned. •after the expiration of such term. The manner of their elec^011 or appointment is merged in their assumptioii of power, and the public recognition of their right. The shortness of their term of office does not affect the rule. They were officers de facto during the whole of the term. In Sprague v. Norway, 31 Cal., 174, the inspectors were appointed by the judges, and not by the electors present, as required by law. Still they were held • officers de facto, and the election was sustained. And in State v. Stumpf, 21 Wis., 579, two inspectors acted instead ■of the statutory board of throe. But the provision of the .statute was declared directory, and the election valid. See also, People v. Cook, 14 Barb., 285-289, and 8 N. Y., 67; People v. Hilliard, 29 Ill., 423; Dishon v. Smith, 10 Iowa, 220; McKimmey v. O’Connor, 26 Texas, 5; Thompson v. Ewing, 1 Brewster, 99; McCraw v. Harrolson, 4 Cold., 34; Boilearis v. Case, 2 Parsons, 503; People v. Cicott, 16 Mich., 324. Secondly, concerning those findings which are simply that there were both preparations and opportunities for and inclinations to fraud, it is enough to say that 'fcbny of themselves alone amount to little or nothing. You can never infer guilt from simply a preparation, and an opportunity for, or an inclination to crime. They may be important to sustain or explain the • direct or circumstantial proof of the fact of crime. It is in that view, doubtless, that they were introduced into these findings by the learned judge who tried this case; and we refer to them simply lest our silence might be misconstrued •on a second trial into an intimation that they were sufficient to sustain' the conclusion. Thirdly, as to the findings that the judges refused to permit the friends of Burlingame to l"3 'present in the room during the reception of votes, and refused to recognize- the challenges ma(je by them. Section 18 'of the election law {Gen. Stat., p. 408,) directs the judges to permit the candidates or their friends, not exceeding three, to be present in ,ihe room during the time of receiving and counting the votes. Section 10 of the same law requires the judges, whenever one offering to vote is challenged by an elector, to* administer to him a certain specified oath, and then question him as to his qualifications. The requirements of these-two sections were disregarded. Did this vitiate the election?' Are these sections mandatory, or directory? Applying the-rule laid down as above, we cannot look at these provisions-as other than directory. They do not seem in the nature of thiñgs essential to the validity of the election. There may-even be occasions where a disregard of them is almost or quite a necessity. Suppose the election be appointed and held in a room so small that the judges and clerks, with their tables and election boxes, fill it; must §18 be observed, or* the election rendered void? Or again: suppose the only candidates or friends of candidates who apply for admission, are filthy and foul with the fumes of tobacco and rum; can they not be refused admittance, without peril of the election?" Or again: suppose it be evident that an attempt is made by' challenging everybody, whether well-known citizens or otherwise, to delay the voting, so as to prevent some from casting' their ballots; must the judges stop because of a challenge to administer an oath and put questions to one whom they know' has been an old-time elector and citizen? These requirements of the statute are, therefore, as we think, directory. A willful and corrupt disregard of them would subject the-officers to prosecution and punishment. But even such a. disregard would not necessarily vitiate the election, or deprive • the legal electors of their vote. It might be shown, affirmatively, that none but legal votes were in fact received, or" counted, and then the corrupt misconduct of the officers-would work no injury to any but themselves. People v. Cook, 14 Barb., 290, 293; People v. McMannus, 34 Barb., 620; People v. Sackett, 14 Mich., 320; Taylor v. Taylor, 10 Minn., 107. Lastly, the election was held in a building in which, intoxicating liquor was sold. This is forbidden by the statute,,, (Gen. Stat., 420, §64,) which reads: “No poll shall be-opened, or election held, in this state, at or in any building; in which spirituous, vinous, fermented, or other intoxicating liquors, are kept or sold.” That one of the great evils attendant upon elections, (particularly in our cp¿es^ jg the use of intoxicating liquors to influence such elections, all will admit. Many a thoughtful man has gone away from the polls at the end of an exciting election deeply pondering whether after all free government be not yet simply an experiment, with the evidences strongly pointing to failure. We would not wish to weaken any of the .safeguards the legislature has erected against this pernicious influence. Yet no more in this, than in any other case, may we allow our thoughts and wishes, as to what the law ought to be, to control our judgment as to what it is. We do not legislate. We simply expound and decide. The legislature has forbidden the holding of an election in a building where liquor is kept or sold. No penalty is attached by the legislature. Can we attach any? If we could, to whom should we attach it, the innocent or the guilty? The electors do not designate the place. The trustee and justice do. Whom should we punish? Shall we punish the innocent electors, and deprive them of their franchise, because their ballots are received in a room whose selection they had no power to influence? Before we impute such intention to the legislature, we ought to find plain warrant therefor in their language. The trustee designating the place of election is the party violating the law. He ought to suffer the penalty. He cannot plead ignorance of the law. The business of ■selling liquor is conducted so openly he can hardly be unaware of the places where it is done. If therefore he locates the •election in a saloon, or in a building in which is a saloon, he ought to suffer the penalty. No authority is given to ;any one to change the polls, if they have been located in an improper place. The argument made, and the authorities cited by counsel for defendants in error, to the effect that time and place are of the substance of an elec-tion, do not apply to this case. It may be conceded, that when a legislature has designated a particular day -for a popular election, an attempted election upon any other day would be void. The same is true when it has designated a place, and without necessity the place is changed. Knowles v. Yeates, 31 Cal., 82; Chadwick v. Melvin, Brightly Lead. Cas. on Elect., 251; Jucker v. Commonwealth, 20 Penn. St., 493; Miller v. English, 1 Zabr., 317. But here the legislature has not assumed to designate the place. It has committed that trust to certain officers, and the election has been lield in the place they have designated. The complaint is, that the officers have designated an improper place, and not that the electors have assumed to disregard the selection of either the legislature, or any officer. Where the electors have not themselves broken the law, ought they to be disfranchised ? Two other considerations worthy of mention sustain the view herein expressed, that this section is directory. One is, that notice of the time of the election must be posted up at the place appointed at least ten days before each special, .and fifteen before each general election: Gen. Stat., p. 404, § 5. Now, even if the trustee has designated a room in a building in which at the time of designation no liquor was kept or sold, how can he prevent the occupation of other rooms in the building, prior to and on the day of election, for the sale of liquor? Surely, he is not compelled to secure a building with only one room, or else hire a whole building to protect the one room. The other is this: The keeping as well as the sale of liquor is within the terms of the prohibition ; and the statute is silent as to quantity. One gill is •equally with a barrel-full within the letter of the section. Nor is it made a question of knowledge on the part of the officers or electors, but one of fact. Can it be that the discovery, subsequent to an election, of the presence of a jug of whisky in some room of the- building in which an election is held, even though ordinarily kept there by the occupant, will vitiate that election? On the whole case, therefore, we do not think the facts found warrant the conclusion.

The judgment of the district court will be reversed, and the case remanded for a neAv trial. On such trial, if illegal votes were cast at Lyndon, or elsewhere, sufficient to change the result, that fact may be shown, as well as any additional circumstances tending to impeach the entire poll.

All the Justices concurring^