Sanner v. Patton | Cases | Westlaw

This was a proceeding instituted by Shields H. Sanner in the county court of Shelby county to contest an election for the office of commissioner of highways of the town of Penn, held on the 3d day of April, 1894, wherein Robert A. Patton had been declared elected. The defendant, Robert A. Patton, put in an answer to the petition, and on the hearing on the pleadings and *557 evidence the court entered a judgment dismissing the petition.

The record in this case shows that Robert A. Patton, the appellee, was nominated for the office of commissioner of highways, and his name placed upon the official ballot; that Sanner's name was not printed or placed on the official ballot; and that no ballot containing his name was furnished the voters at said election. It is expressly stipulated in the record that Patton was the only person nominated as candidate for such office; that Shields H. Sanner was not nominated for said office by any of the modes prescribed by statute; that only one ticket was prepared and printed by the town clerk, as follows:

**291 At the election, 42 ballots were cast. Sixteen of the 42 contained a cross in the large circle on the ticket opposite the word ‘Republican,’ and they were counted for Robert A. Patton. One ballot had no mark *558 in the large circle, but contained a cross in each of the blocks opposite all the names on the ticket, except the first one. It also appeared that 25 ballots were rejected by the judges of election, being in the same form as the 17 above referred to; that 23 had the name of S. H. Sanner written under the name of R. A. Patton, in blank space between said Patton's name and the words ‘For Justice of the Peace,’ and a block and X therein were placed at the left of Sanner's name. It was stipulated in the trial that the 25 ballots were rejected by the judges of election because the name of Sanner was written on the ballots for the office of commissioner of highways; the judges holding that a voter had no right to write Sanner's name on an official ticket, for the reason that he had not been nominated, and that by so doing the ticket was void, and should be rejected by the judges of election in canvassing the votes.

Whether a voter has the right, under the act of June 22, 1891 (Laws 1891, p. 108), to write the name of some person for whom he desires to vote for an office to be filled at the election on the official ballot provided for the voter at public expense, and vote for such person, or whether he is confined to the names printed on the official ballot, is a question not entirely free from difficulty. The first section of the act provides ‘that in all elections hereafter to be held in this state for public officers, except for trustees of schools, school directors, members of boards of education, officers of road districts in counties not under township organization, the voting shall be by ballots printed and distributed at public expense as hereinafter provided, and no other ballots shall be used.’ Section 2 Provides how the printing and delivery of ballots and cards of instruction shall be paid. Sections 3, 4, and 5 provide how candidates may be nominated. Section 6 provides what the certificates of nomination or nomination papers shall contain. Section 7 provides with whom certificates of nomination shall be filed. Section *559 8 provides a mode by which a candidate may withdraw his name. Section 9 points out the method of filling a vacancy. Section 10 relates to the settlement of objections made to nominations. Sections 11 and 12 relate to filling vacancies and supplying new ballots. Section 13 requires the secretary of state to certify within a specified time, to the county clerk of each county within which any of the electors may by law vote for candidates for office, the name and description of each person, as specified in the certificate of nomination. Section 14 provides ‘that the names of all candidates to be voted for in each election precinct shall be printed on one ballot; all nominations of any political party or group of petitioners being placed under the party appellation or title of such party as designated by them in their certificates of nomination, or if none be designated, then under some suitable title, and the ballot shall contain no other names, except, in case of electors for president and vice-president of the U. S., the names of the candidates for president and vice-president may be added to the party or political designation. * * * On the back or outside of the ballot * * * shall be printed the words, ‘Official Ballot,’ followed by the designation of the polling place for which the ballot is prepared, date of election, and a fac simile of the signature of the clerk or other officer who caused the ballots to be printed. The ballots shall be on plain white paper, through which the printing or writing can not be read. The party appellation or title shall be printed in capial letters, not less than one-fourth of an inch in heoght and a circle one-half inch in diameter shall be printed at the beginning of the line in which such appellation or title is printed. The names of candidates shall be printed in capital letters not less than one eighth nor more than one fourth of an inch in height, and at the beginning of each line in which a name of a candidate is printed a square shall be printed, the sides *560 of which shall not be less than one-fourth of an inch in length. The list of candidates of the several parties and groups of petitioners shall be placed in separate columns on the ballot in such order as the authorities charged with the printing of the ballots shall decide.' Section 15 relates to the printing and furnishing the ballots. Section 20 provides that the judges of election shall have charge of the ballots, and furnish them to the voter on day of election. Section 23 provides as follows: ‘On receipt of his ballot, the voter shall forthwith and without leaving the enclosed space, retire alone to one of the voting booths so provided, and shall prepare his ballot by making in the appopriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled, or by writing in the name of the candidate of his choice in a blank space on said ticket, and making a cross (X) opposite thereto. * * * Provided, however, if he shall desire to vote for all of the candidates of one political party or group of petitioners, he may place such mark at the appropriate place preceding the appellation or title under which the names of the candidates of such party or group of petitioners are printed and the ballot so marked shall be counted as cast for all of the candidates named under that title: provided further that the voter may place such mark at the appropriate place preceding the appellation or title of one party or group of petitioners and may also mark at the appropriate place preceding the name or names of one or more candidates printed under the appellation or title **292 of some other party or group of petitioners and a ballot so marked shall be counted as cast for all the candidates named under the appellation or title which has been so marked except as to the officers as to which he has placed such mark preceding the name or names of some other candidate or candidates printed under the title of some other party or group of petitioners and as to such it shall be counted *561 as cast for the candidate or candidates preceding whose name or names such mark may have been placed.’

It is apparent from section 1 of the act that all ballots to be used at the election are required to be printed and furnished at public expense, and the use of all other ballots is absolutely prohibited; and, if no section of the act permitted the voter to change the ballot by inserting the name of some person whose name did not appear on the ticket so furnished, we would be inclined to hold that the voter would be compelled to vote the ticket as it was furnished to him, or be denied the privilege of voting for any person whatever. There are, however, other sections of the act, which, when considered in connection with section 1, would seem to indicate that the legislature never intended to restrict the voter to the persons whose names were printed on the official ballot. Section 21 of the act requires the officers upon whom the duty is imposed of providing polling places to provide a sufficient number of booths, and the booths shall be furnished with shelves, pens, penholders, ink, blotters, and pencils, as will enable the voter to prepare his ballot for voting. Each booth is required to be three feet square, and contain a shelf one foot wide, at a convenient height for writing. If the voter, when he receives a ballot and enters the booth, has no authority to write the name of a candidate on the ticket, and can do nothing but take a ballot and make a cross in the circle, or a cross opposite the names of such persons on the ticket as he may wish to vote for, no necessity exists for a shelf to write upon, or for ink, pens, and blotters. If the voter is permitted to do nothing but make a cross on the ticket, as indicated, he can do this with a pecil in a moment, and no necessity exists for the writing material required to be furnished. But, independent of this section, we think section 23, which points out the mode or manner of voting after the voter receives the ballot, clearly confers upon the *562 voter the power to insert in the ballot the name or names of such persons as he may desire to vote for for any office to be filled at the election, and vote for such persons. Upon an examination of this section, it will be seen that, if the voter desires to cast his vote for all the candidates of one political party whose names appear on the ticket, he may do so by merely making an X in the circle printed on the ticket, opposite the name of the political party, and a vote of this character will be counted for all the candidates on that ticket. There is another mode. If the voter does not desire to vote for all the candidates whose names appear on the ticket of the political party to which he belongs, he may put a cross in the circle opposite the name of his political party and then make an X opposite the name of any candidate on any one of the other tickets for whom he may desire to vote, and the ballot will be counted for any candidate before whose name the X thus appears; and, with this exception, it will be counted for those candidates appearing belowthe circle containing the X. There is yet another mode, which, in the language of section 23, is as follows: ‘The voter shall prepare his ballot by marking in the appropriate margin or place an X opposite the name of the candidate of his choice for each office to be filled, or by writing in the name of the candidate of his choice in a blank space on said ticket, making an X opposite thereto.’ Under this clause the boter may pay no attention whatever to the circle, but may place a cross opposite the name of any candidate whose name may be found on the ballot for whom he desires to vote, and the ballot shall be counted for such candidate, or he may write the name of a candidate in the ballot and place an X opposite the name, and the ballot shall be counted for such person.

It is claimed that section 14 prohibits the voter from writing on the ballot the name of a person who has not been nominated. That section, as has been seen, in substance, *563 declares that the names of all persons to be voted for shall be printed on one ballot,—all nominations of any political party being placed under the party appellation, as designated in the certificates of nomination,—and the ballot shall contain no other name. This section has reference to the duty of those intrusted with preparing the ballot to be placed in the hands of the judges of election, to be used by the voter on the day of election; but after the ballot has been prepared, and placed in the hands of the judges of election, whether the voter may or may not add the name of a candidate to the ballot is a question upon which the section is silent. Some importance is sought to be attached to section 26 of the act, which, in substance, provides: No ballot without the official indorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted. As to this provision, it is sufficient to say that the addition of the name of one or more candidates to a ballot by the voter does not destroy the official indorsement on the ballot, nor does the change render the ballot one prepared contrary to the provisions of the act. On the other hand, the ballot, after the change, still retains the official indorsement, and is still a ballot prepared at public expense, as contemplated in the act. It is also said that ample provision has been made in the act, under which candidates may be nominated, and thus be entitled to have their names placed on the ticket, and that it is the **293 intention of the act that no vote should be cast for a person who was not nominated. If such was the intention, why did not the legislature say so, and why did it say directly the contrary? What, it may be asked, is there so sacred in the nomination of a candidate for office by a political caucus that a voter should be compelled to vote for a nominee of the caucus, or else be deprived of the elective franchise? Under section 1, art. 7, of our constitution, every male citizen of the *564 United States above the age of 21 years, who has resided in the state 1 year, in the county 90 days, and in the election district 30 days, next preceding any election, is entitled to vote at such election. To exercise this right there is one exception, and but one, so far as we have been able to find; and that is found in section 7 of the said article, which declares: ‘The general assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes.’ Adopting the well-known maxim or rule of construction that the expression of one thing is to be regarded as the exclusion of another, the legislature does not possess the power to take away from a resident citizen the right of suffrage unless he has been convicted of an infamous crime, nor can the legislature do indirectly what they cannot do directly. And yet, if the construction contended for by appellee be the correct one, the voter is deprived of the constitutional right of suffrage; he is deprived of the right of exercising his own choice; and where this right is taken away there is nothing left worthy of the name of the right of suffrage,—the boasted free ballot becomes a delusion. It will not be necessary to extend the discussion. We are satisfied that the legislature, when they adopted that part of section 23 which authorizes the voter to write the name of the candidate of his choice in a blank space on the ticket, making a cross opposite thereto, did so advisedly, and for the purpose of preserving the right of suffrage which belongs to the voter.

Other states have enacted similar laws. In the supreme court of Missouri, where a law of this character was under consideration in Bowers v. Smith, 17 S. W. 761, it is among other things, said: ‘By out constitution, general elections are to be held at certain fixed times, and the right of suffrage is secured to every citizen possessing the requisite qualification. The new law cannot infringe upon the right of voters to select their public servants at such elections, *565 or be so interpreted as to limit the range of choice for constitutional officers to persons nominated in the modes prescribed by it. Nominations under it entitle the nominees to places on the official ballot printed at public expense, but the Missouri voter is still at liberty to write on his ballot other names than those which may be printed there. The statute recognizes this right by requiring blanks for such writing next the printed names.’ In the state of New York a similar statute has been adopted, and the court of appeals, in People v. Shaw, 31 N. E. 512, in passing on an objection that the relator had not received a proper nomination, among other things, said: ‘The plan contained in sections 1, 2, and 3 of the ballot reform act was a provision for the printing of an official ballot at the public expense,—a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose is evident from the further provision of the law (section 25) that ‘the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office.’ Indeed, to hold otherwise would be to disfranchise or to disqualify the citizen as a voter or candidate, and, in my opinion, to affect the law quite unnecessarily with the taint of unconstitutionality in such cases.'

In conclusion, we are of opinion that the ballots cast for S. H. Sanner were legal ballots, and should have been counted for him, and that the court erred in dismissing the petition. The judgment will be reversed and the cause remanded, with directions to enter a judgment in favor of petitioner.