Wall v. Pierpont

240 P. 251, 119 Kan. 420, 1925 Kan. LEXIS 484
CourtSupreme Court of Kansas
DecidedOctober 10, 1925
DocketNo. 26,220
StatusPublished
Cited by5 cases

This text of 240 P. 251 (Wall v. Pierpont) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wall v. Pierpont, 240 P. 251, 119 Kan. 420, 1925 Kan. LEXIS 484 (kan 1925).

Opinion

The opinion of the court was delivered by

Burch, J.:

The action is one of quo warranto to determine the correct result of the election in Sedgwick county in November, 1924, [421]*421to the office of judge of the district court of the eighteenth judicial district, third division.

Jesse D. Wall and Grover Pierpont were the opposing candidates and the certificate of election was issued to Pierpont. Plaintiff framed the issues to require, and prayed for, a count of all the ballots cast at the election. The court appointed J. Y. Humphrey, of Junction City, commissioner to take the testimony and report findings of fact and conclusions of law. He did so, and the report of his masterly work is appended to this opinion. Plaintiff has excepted to the report. The exception to counting ballots imperfectly marked in the squares, referred to in findings 9 and 17, presents the principal subject of controversy. It appears that at the commencement of the commissioner’s count both plaintiff and defendant interposed objections to counting ballots of the character described, which were overruled. Soon afterward defendant acquiesced in the commissioner’s ruling, made no further objection to counting this class of ballots for plaintiff, and no record of the number so counted was kept. Defendant now stands upon the ground finally taken before the commissioner, and is willing to concede that if the classes of ballots referred to were wrongfully counted for him plaintiff was elected.

Previous to 1893 an election was held in this way: The state provided a place where persons might vote, a ballot box to contain the ballots, and election officials to receive and count the ballots and make return of the result. The voter brought and delivered to one of the judges a piece of paper on which was written or printed the names of the persons for whom he was voting, with designation of office. Section 29, chapter 36, General Statutes of 1868, which has continued to be and still is in force, reads as follows:

“In all elections for the choice of any officer, unless it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to that office; and whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may not be defeated by any informality of any officer.” (R. S. 25-702.)

In 1893 the Australian ballot law was enacted, the purpose of which was laudable in the highest degree. Voting, however, became a ceremonial conducted according to an elaborate ritual. The place [422]*422for holding the election was painstakingly oriented for the occasion. The conduct of the election officials and the successive movements pf the voter within it were designated with precision. Official ballots were provided, the form of which was prescribed in great detail. None other could be used or counted, and the subject of marking the ballots received special attention. (Laws 1893, ch. 78, §§ 14, 22, 25 and 27.)

Following the first election held under the new law an action of quo warranto was instituted in this court to try title to an office. The law provided that official ballots should be printed on plain white paper. In one township colored sample ballots were supplied by the election officials to the voters, and the white official ballots were returned to the county clerk unused. In the opinion the court said:

“In considering the statute we are to keep steadily in mind the evident purpose of the legislature in its enactment. It is plain that among the most prominent ends sought to be attained was that of absolute secrecy. Any mai'k or distinguishing feature on the ballots which would enable a person other than the voter himself to identify the ballot, and find out how the elector had voted, was intended to be strictly prohibited.
“We have examined the numerous cases cited by counsel for the plaintiff, and from them deduce two rules, which seem to be steadily adhered to by the courts: (1) That, under laws similar to our own, designed to preserve the secrecy of the ballot, any mark or distinguishing feature apparent on the ballot renders it void. (2) Where the law is explicit in prohibiting the counting of any ballot which does not conform to the requirements of the statute, that the courts will enforce the law as it reads without interposing their own judgment as to the reasonableness or unreasonableness of the requirements.
“We reach the conclusion that the law has not been substantially infringed, because we are unable to see how the purposes of the act can have been impaired in any degree by the mistake made in using the colored ballots. . . .” (Boyd v. Mills, 53 Kan. 594, 606, 607, 609, 37 Pac. 16.)

An election contest growing out of the first election held under the new law reached this court (Taylor v. Bleakley, 55 Kan. 1, 39 Pac. 1045). The contest court had counted ballots upon which cross marks appeared entirely outside of the voting squares. The law twice said voters should make the cross mark in the square, and said if the voter failed to mark his ballot as the law provided it should not be counted. These provisions were held to be mandatory. In the opinion.the court said:

[423]*423“It is insisted that the provision is directory only, and that, if the purpose of the voter can be ascertained with reasonable certainty from the ballot cast by him, effect should be given to it. Unquestionably, prior to the passage of chapter 78 by the legislature of 1893, the rule that the intent of the voter, as evidenced by his ballot, is controlling in the count thereof was by a long course of judicial determination firmly imbedded in the jurisprudence of this state. . . . The enactment of that statute was designed to inaugurate an important departure from the mode of voting and counting votes which had existed in this state prior to its passage. If the legislature intended to say that a ballot which had failed to accord with certain specifically enumerated requirements on the part of the voter could not be counted, the purpose of the legislature, irrespective of all considerations as to the intent or effect -of such failure, if not unconstitutional, cannot be disregarded by courts. If the statute is harsh in its terms the remedy is with the legislature. . . .
“A ballot ought to be cast by the voter intelligently and thoughtfully. If so cast, there is no trouble in complying with the provisions of chapter 78. If a person is illiterate or physically disabled he may have assistants to mark his ballot. No one is disfranchised by the act, nor are the provisions concerning the marking of the ballot difficult to understand.” (Taylor v. Bleakley, 55 Kan. 1, 8, 9, 14, 39 Pac. 1045.)

The Australian ballot law was completely revised in 1897 and the first law was repealed. The position of voting squares was changed to the right of the names of candidates, and use of anything but- a black lead pencil in marking ballots was prohibited. Sections 14, 22 and 25 of the Laws of 1893 were modified to- include these changes, but not otherwise. Some words omitted in printing the 1893 law were included in section 27, which was made to read as follows:

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Related

In re the Election of Massey to Position No. 3
605 P.2d 147 (Supreme Court of Kansas, 1980)
Johnson v. Russell
159 P.2d 480 (Supreme Court of Kansas, 1945)
Hansen v. Lindley
102 P.2d 1058 (Supreme Court of Kansas, 1940)
Smiley v. Armstrong
278 N.W. 21 (South Dakota Supreme Court, 1938)
Boddington v. Schaible
8 P.2d 314 (Supreme Court of Kansas, 1932)

Cite This Page — Counsel Stack

Bluebook (online)
240 P. 251, 119 Kan. 420, 1925 Kan. LEXIS 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wall-v-pierpont-kan-1925.