Slaymaker v. Phillips

40 P. 971, 5 Wyo. 453, 1895 Wyo. LEXIS 39

• Court: Wyoming Supreme Court
• Decided: July 1, 1895
• Status: Published

Opinions

CoNaway, JustiCe.

This is an election contest. Plaintiff and defendant were candidates for the office of clerk of the district court for Converse County, and defendant had a majority of the votes cast, counted and returned for the office. Plaintiff contests, however, that the ballots cast at the three voting precincts in the county were illegal and void, and should not have been counted, and were counted contrary to express provisions of our statute. If the votes of these precincts were rejected, plaintiff would be elected.

The alleged illegality in the ballots cast at these three precincts consisted in their not having the name or initials of either of the judges of election, upon the back or upon any part of any of the ballots, and in two of the precincts none of the ballots were endorsed with the official stamp, though the stamp was placed upon the face of the ballots at the head of the ballots.

Upon these facts the district court reserves for our decision the following important and difficult questions:

“1. Are the provisions of the election laws of Wyoming which require that the judge of election, before delivering any ballot to an elector, shall print on the back of the ballot the designation ‘Official Ballot/ and the other words provided by said laws, and that one of said judges shall write his name or initials upon the back of each ballot, directory only, or are they mandatory?

“2. Should any of the ballots cast at said election at either of the above named precincts be rejected, and, if so, which of said ballots should be so rejected?

“3. Upon the facts aforesaid, should judgment be entered for the plaintiff or for the defendant?”

Section 110 of- Chapter 80, of the session laws of 1890, provides that the county clerk or clerk of the municipality, in case of a municipal election, shall furnish to the judges of election the proper number of ballots; and provides fur- ■ ther that “he shall also deliver to the said judges a rubber_or other stamp with ink pad for the purpose of stamping or designating the official tickets as hereinafter provided. Said stamp shall contain the words ‘Official Ballot/ the name and number of the polling precinct, the name of the county or municipality as the case may be, and the name and official designation of the clerk who furnishes the tickets.”

Section 119 of the same act provides as follows: ■

“At each election the judges of election shall designate two of said judges who shall deliver the ballots to the qualified electors. Before delivering any ballot to an elector the said judge shall print on the back and near the top of the ballot with a rubber or other stamp provided for that purpose the words ‘Official Ballot/ and the other words on the said stamp as hereinafter provided, and one of the said judges shall write his name or initials upon the back of each ballot and directly under the official stamp.” * * *

Section 130, in so far as it affects the questions before us, provides as follows:

“In the canvass of the votes any ballot which is not endorsed by the official stamp or has not the name or initials of the judge of election, as provided in this act, shall be void and shall not be counted.”

There can be no question that this last provision is mandatory. The language that the ballots specified “shall not be counted” requires no construction and admits of none. It seems to be as plain as any words that could be selected. But counsel contend tbat the provision may be construed to require the absence of both the stamp and the name or initials of one of the judges in order to make the ballot void. Some room for this idea is furnished by the language of the statute in specifying negatively and disjunctively what -defects shalLcause the rejection of the ballot, and not putting the provision in the affirmative form of declaring what shall be requisite in the endorsement of a ballot otherwise legal, to authorize it to be counted. If the statute said that a ballot, otherwise legal, should be counted only when it -is endorsed by the official stamp or has the name or initials of the judge of election as provided in this act, it would be clear that the presence of-either one or the other would authorize the counting of the ballot. But- as the -provision reads, it is equally clear that the meaning is that the absence of either one or ■the other shall cause the rejection' of the ballot. The name and- initials are interchangeable, of course, and both of these are not required. This all seems obvious from a mere inspection of the language, and this disposes of all the points made by counsel for defendant in brief or oral argument.

• But one member of this court insists that this is an unreasonable and' unconstitutional restriction of-the right of suffrage. The majority of the court think differently.

The -duty of courts to pass upon the constitutionality of acts of the legislature is, perhaps, the most delicate duty -they have to perform. Courts may. well hesitate long before declaring an act of -the legislature invalid, or unreasonable to the extent of being unconstitutional, -and then should not do so unless-such conclusion -is necessary mnd unavoidable. The question whether a provision is -reasonable or unreasonable is a question primarily for- the. legislature to’ decide in enacting the law. And it has been held that'it is the duty of the.courts.to enforce-statutory provisions, however unreasonable they may appear.. Flint River Steamboat Co. v. Foster, 5 Ga., 194. In case of- apparent conflict between statutory and constitutional provisions-they should be. harmonized if possible.- But we find no conflict between the statutory provisions under.consideration-and the.constitution in any of its provisions. The constitution imposes upon the legislature the duty to pass laws to secure the purity of elections and to guard against abuses of the elective franchise. (Art. 6, Sec. 13.)

Section 11 of the constitution imposes further legislative duties in these words: .

“All elections shall he by ballot. The legislature shall provide by law that the names of all candidates for the same office to be voted for at any election, shall be printed on the same ballot, at public expense, and on election day to be delivered to the voters within the polling place by sworn public officials, and only such ballots so delivered shall be received and counted. All voters shall be guaranteed absolute privacy in the preparation of their ballots, and the security of the ballot shall be made compulsory.”

Our election law was enacted before the constitution went into effect by the admission of Wyoming as a State, but after the constitution had been adopted by the constitutional convention and ratified by the vote of the people. It was thus as complete an expression of the will of the people as to the character of election law as they desired, and as efficient information to the legislature upon that subject as it was afterwards when it went into effect as the constitution of the State of Wyoming. And the act in question has been left in force ever since without important change, and no change affecting .the questions submitted for our decision, as providing the means for carrying these constitutional provisions into effect. This is an emphatic legislative endorsement of these provisions as they stand to-day; and they follow the constitutional provisions very closely.

It will be observed that not a single one of these constitutional provisions is self executing. There could not be an election by ballot without a law providing means for the polling of the vote by ballot. So as to the other provisions. It was and is necessary, and the constitution expressly requires that the legislature shall provide by law for the privacy of voters in preparing their ballots, for the compulsory secrecy of the ballot, that' the names of candidates shall be printed on tbe same ballot at public expense, and delivered on election day to the voters within the polling place by sworn public officials, and that only such ballots so delivered shall be received and counted. Legislation was and is necessary to provide the public official to deliver the ballots, and to provide the means of identification requisite to carry out the provision that only such ballots so delivered should be received and counted, and to exclude all others.

If we could entertain a doubt as to the correctness of our conclusion, that section 130 of the act of 1890 requires both the official stamp and the name or initials of a judge of the election to make a valid ballot, and that the legislature has not exceeded its authority in enacting the provisions quoted from the act, and that they are not in conflict with the eon-' stitution, there are some further considerations which would suffice to remove all doubt. We have examined a considerable number of cases industriously collated by the Chief Justice, and fairly collated without regard to the question of whether they sustain his dissent or not. We have also examined the authorities at hand upon the general question of the authority of legislatures, under constitutions more or less similar to our own, to enact laws resulting in the rejection of illegal ballots, even when involving large numbers of votes, the votes of entire precincts, or districts consisting of a number of precincts, or the validity of an entire election. After such examination we feel safe in announcing the following proposition:

No respectable authority can be found denying the power of the legislature to define and prescribe what shall constitute a lawful ballot; and the further proposition that no respectable authority can be found denying the power of the legislature to enact that none but lawful ballots shall be received or counted. Such provisions our legislature has enacted. The first subdivision of section 164 of the act of 1890 reads:

“No officer shall deposit in the ballot box any ballot except a lawful one. A lawful ballot is an official ballot officially stamped and marked with the initials or name of a judge of the election, and offered by a qualified elector during the time of election.” And the authorities are unanimous to the effect that an illegal ballot will not be counted. If it be considered doubtful whether section 130 requires both the official stamp and the name or initials of a judge of the election upon the ballot, it can not be considered doubtful under section 164. And section 128 of the act provides also that “No judge of election shall deposit in any ballot box any ballot upon which the official endorsement hereinbefore provided for does not appear.” The official endorsement is the official stamp .with the name or initials of a judge of election written directly under it by himself. The meaning of these three sections taken- together is 'clear. A legal ballot is one with both the official' stamp and the name or initials of a judge of the election upon it, no judge of election shall deposit any other ballot in any ballot box, and no other ballot shall be counted. And if any judge of election deposit any other ballot in any ballot box the act is highly penal. The eleventh subdivision of section 164 provides:

“Any officer violating any of the provisions of this section shall be imprisoned in the penitentiary not more than five years and not less than one year, or be fined not more than two thousand dollars and not less than one hundred dollars, or may be both imprisoned and fined as aforesaid, and shall forever thereafter be incapacitated from holding any civil office or of exercising the elective franchise in Wyoming.”

The legislature evidently regarded- the observance of these provisions as of great importance and made the penalty thus severe.

But- the voter has duties to .perform supplementary to that of the officers, and the performance of these duties by the voter constitutes an important part of the scheme of the constitution and the-statute to secure the purity of elections, to guard against abuses of the elective franchise, and to secure the secrecy of the ballot. And section 165 of the act imposes a severe penalty upon any person upon whom any duty is imposed by the act, “who shall wilfully do or perform any act by this act prohibited, or who shall neglect or omit to perform any duty imposed by this act.”

And the act specifies some things which the elector himself shall do, and some things which he shall not do'.

“On receipt of his .ballot the-elector shall forthwith, and without leaving the polling-place, retire alone to one of the places, booths or compartments provided' to prepare his ballot. He shall prepare his ballot-by marking a cross before or after the name of the person or' persons for- whom he intends to vote.” (Sec. 120.)

“Ho elector' other than-one who may, because of his disability to read or physical-disability, be unable to mark his ballot shall divulge to any one within the. polling place-the name of any candidate' for whom he' intends to vote or (to) ask or receive the assistance of any person.within the, polling place in the preparation of his ballot.” (See..'127.)

'. “After preparing his -ballot the elector-shall fold it so- that the face of the ballot will be concealed, and so that the endorsement therein may be'seen. He shall then vote-forthwith and before leaving -the-polling place.”' (Sec. 122.)

• What acts' of omission- or - commission will subject- the elector to the'penalties of section 165 we-will not now-consider. But we cannot regard-' the -elector who neglects to comply with any of these positive provisions of the statute as blameless, and we think he has no cause of complaint if, in •consequence of such neglect, he loses hiswote. -The positive command of-the statute that the-elector shall fold his-ballot 'so that the endorsement may be seen- implies that he- shall -look for such-endorsement. It cannot be said that it is impossible for him to comply with this requirement when the ballot furnished bears no. endorsement.'-' The judges are there with the official stamp. It is little trouble'to ask them to endorse'the ballot próperly. '• We have-no patience to consider the idea that the-voters generally have not the intelligence to do this.

We will-'not' .'speculate -as 'to. what -presumptions may arise ■from this neglect of dirty by the officers of the three precincts named with the acquiescence of'all the voters. "But we must say that the effect of such, proceeding is to open the door to fraud and abuses of the elective franchise which the legislature has properly sought to close; and to put it in the power of unscrupulous election officers and their confederates to perpetrate the very frauds and abuses which it is the object of the constitution and the statute to suppress. Such irregularities may occur through negligence in case of a fair election, but we are of opinion they are not likely to.

But these are minor considerations in the discussion of the questions before us. The description of a lawful ballot is plain. The command to the judges to place no other ballot in the ballot box and the provision that any. ballot not answering to the description shall not be counted, are plain, imperative and mandatory. The doctrine of all the authorities as to such language in election laws is well summed up in McCrary'on Elections at se'ction 190. He says: “The language of the statute to be construed must be consulted and followed. If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute, must so hold, whether, the particular act in question goes to the merits or affects the result of the election or not. Such a statute is imperative, and all considerations of its policy or impolicy must be addressed to the législature”.

We are willing to go to the extreme limit of liberal construction in order to save an honest election, or to avoid the loss of votes cast in good faith; but we cannot conceive that it is permissible for this court or any court to set aside positive legislative enactments. The statutes under consideration aTe too clear in their meaning to require construction. The question is simply whether we will enforce them or not. We are of the opinion that the Supreme Court of Kansas has well stated the correct principles applicable to such cases in Boyd v. Mills, 25 L. R. A., 486, as follows:

“The departure .from the law in matters which the legislature has not declared to be of vital importance must be substantial in order to vitiate the ballots.”

And tbe following rule from tbe same case commands our approval:

“Where tbe law is explicit in prohibiting tbe counting of any ballot which does not conform to tbe requirement of tbe statute that the courts will enforce tbe law as it stands without interposing their own judgment as to tbe reasonableness or unreasonableness of the requirements.”

We are of tbe opinion that the statutory provisions under consideration are reasonable, constitutional and efficient means of the discharge by the legislature of the duty imposed by the constitution to pass laws to secure the purity of elections, to guard against abuses of the elective franchise, and to make the secrecy of the ballot compulsory.

But we are not prepared to give the categorical answer of yes or no to the first question reserved for our decision; neither do the facts of the case call for it. We should be loath to say that a defective stamp not containing all the words required by the statute, used upon all the ballots of a voting precinct, would require the rejection of the vote of the precinct east at an election fairly and honestly conducted.' And the facts of this case do not raise this question. Neither do we decide whether the stamp and the name or initials of a judge of the election must be upon the back of the ballot to authorize its counting. If the stamp and the name or initials of the judge were upon some other portion of the ballot, and the ballot were folded so that this could be seen, but the tickets printed upon the face of the ballot concealed,, it might be that this would be a sufficient compliance with the spirit, if not with the letter, of the law, to save the ballot from rejection. This, of course, in the absence of fraud, and when the place of the stamping and the writing of the initials would not be a mark or means of distinguishing the ballot from ballots cast by other persons. But we are of the opinion that the official stamp and the name or initials of a judge of the election must appear upon the exterior of the ballot when it is so folded as to conceal the tickets which it bears upon its face; and if this is not the case, the law must be enforced which prohibits the counting of such ballot. We are inclined to regard the name or initials of a judge of the election written by himself directly under the official stamp as the statute requires, as the signature of the judge to the words impressed by the stamp; and as the legal means and the best means of certifying to the voter that the ballot is the'official ballot of the-precinct, and. as the legal means and the best means of identification by the judges of the ballot offered and voted by the elector as the identical official ballot furnished to. him by the judges of the election.

■ To' the second question we- answer that all of the ballots cast, at the three precincts.named should be rejected.

As to. the third' question, we are not in position to say whether further .proceedings may not lawfully be had prior to'judgment. The cause will be remanded for further proceedings in accordance.with this opinion.

■ Pottle, J., concurs; Groesbeck, C. J., dissents.