Slaymaker v. Phillips | Cases | Westlaw

The facts of the case are stated in 40 Pac. 971. The principal questions now called to our attention arise upon the provision of section 130 of chapter 80, Sess. Laws 1890, in regard to the rejection of ballots: “In the canvass of the votes any ballot which is not indorsed 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.”

1. It is urged that this may be construed to mean that “in the canvass of the votes, any ballot which is not indorsed by the official stamp, and has not the name or initials of the judge of election, as provided in this act, shall be void, and shall not be counted,” thus requiring the absence of both the stamp and the name or initials to authorize the rejection of a ballot. It is true that some courts have gone to the extent of construing “or” to mean “and,” in order to carry out the plain intent of the legislature; but, as shown in the opinion handed down on the first hearing, the whole tenor of the act in which this provision occurs shows that the legislature meant what is expressed. The following example was given in argument, in illustration of the use sometimes made of the word “or.” “Any person who is not a citizen of the United States, or has not declared his intention to become such, is not entitled to vote.” As to this it is to be said that any author using this language would be saying what he did not mean. The evident meaning is that “any person who is not a citizen of the United States, and has not declared his intention to become such, is not entitled to vote.” The evident intention is to say that both disqualifications are required to deprive one of the right to vote. But in the provision under consideration, requiring the rejection of ballots, our legislature has expressed its evident intention in apt language. The provision is in plain, terse, and mandatory words. *1050 It is not for the courts to question its wisdom or propriety.

2. It is further contended that the provision of section 130, requiring the rejection of ballots, is in conflict with part of the next section of the act upon the same subject. The next section is as follows: “Sec. 131. As soon as the polls of the election shall be closed the judges shall proceed immediately to canvass the vote given and shall continue without adjournment until the canvass is completed. The canvass must commence by a comparison of the poll lists and they must be made to agree; the ballot box shall then be opened and the ballots counted by the judges and clerks, unopened, and if there are more ballots than names upon the poll list, the ballots must be returned to the box, shaken up, and one of the judges shall draw from such box ballots enough to make the remainder agree with the poll list, which ballots so drawn shall be destroyed, and two or more ballots being found so folded as to bear the appearance of having been voted by one person shall not be counted, but preserved with the poll books; the poll list and ballots being made to agree the judges and clerks shall then proceed to count and ascertain the number of votes for each person named upon such ballots.” This section contains, in substance, the usual provisions authorizing and requiring the proper officers to canvass the vote. So far as the cases have fallen under our observation or been called to our attention, such provisions have not been held to conflict with other provisions requiring the rejection of other ballots than those specified, nor to require the counting of illegal or void ballots. It is the duty of the courts to so construe the provisions of a statute that they may all stand and have effect, if this can be done by a reasonable construction. Section 130 provides that any ballot which is not indorsed by the official stamp, or has not the name or initials of the judge of election, as provided by this act, shall be void, and shall not be counted. Section 131 provides that two or more ballots, being found so folded as to bear the appearance of having been voted by one person, shall not be counted. These provisions are not conflicting, but easily stand together without the aid of construction; and we are not of the opinion that the general language of the concluding clause of section 131, requiring the canvassers to count the votes, requires the counting of votes contained in illegal or void ballots, or ballots which other statutory provisions require to be rejected.

3. It is further contended that the provision quoted from section 130 is repugnant to the constitution, because its enforcement will result in the rejection of ballots of persons having the constitutional qualifications of electors. So far as we are at present advised, assisted by the diligent research of counsel, there are, up to this time, but two authorities holding that a statutory provision such as that of section 130 is in conflict with constitutional provisions fixing the qualifications of electors. And the qualifications of electors are fixed by constitutional provision in every, or nearly every, state in the Union. It is said that there are one or two exceptions, but we know of none. 6 Am. & Eng. Enc. Law, 263. These two authorities are the dissenting opinion in this case, and the case of Moyer v. Van De Vanter (Wash.) 41 Pac. 60. These authorities command and receive our respectful consideration. As to the case of Moyer v. Van De Vanter, it is to be remarked that it was decided under statutory and constitutional provisions different from our own. The ballots drawn in question in that case bore the proper stamp, but had not the name or initials of a judge of the election, as required by statute. Another section of the statute makes it a misdemeanor for any inspector or judge of election to deposit in any ballot box any ballot upon which the stamp does not appear. It is not made a crime to deposit a ballot upon which the initials do not appear. Our statute punishes, as for a felony, any election officer who deposits in a ballot box a ballot which has not both the stamp and the name or initials of a judge of the election. The constitution of the state of Washington provides that: “All elections shall be by ballot. The legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.” Const. art. 6, § 6. The constitution of Wyoming contains similar provisions, and, in addition, the following: “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.” Const. art. 6, § 11. This devolves upon our legislature the constitutional duty, and the corresponding constitutional authority, to provide adequate means for identifying the ballots received and counted as those delivered to the voters within the polling place by sworn public officials, and to provide by statute the means to secure the constitutional result that only such ballots so delivered shall be received and counted. If the legislature may not provide the means, it cannot secure the result. In the statute now attacked as unconstitutional, such means are provided and nowhere else is any provision made prohibiting the counting of ballots not delivered by sworn public officials. Nowhere else is a method provided for identifying the ballot offered by the elector as the one furnished him by the election officers in the polling place. But the doctrine of the case of Moyer v. Van De Vanter, supra, is clearly against the great weight of authority. The result of a consideration of the cases is well summed up in these words: “These statutes, being *1051 designed to preserve the secrecy of the ballot, and to prevent fraud, will generally be considered mandatory, and this will be so in all cases where the statute provides that a ballot varying from the requirements of the law shall not be counted; but if this provision is lacking, while it is the duty of the election officers to refuse to receive the ballots if the deviations from the law are manifest, if they have been received they should not be rejected if the variations are trifling.” 6 Am. & Eng. Enc. Law, 349. And this is in accordance with Judge McCrary's view of the law, although from a quotation from Gilleland v. Schuyler, 9 Kan. 569, contained in the dissenting opinion in this case, a different inference might be made. McCrary's text leaves no room for doubt as to his view, and little room to question that his view is correct. Perhaps no better discussion of this branch of the law can be found, in brief, than his. 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 legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election. Thus it has been held, in Missouri, that a statute making it the duty of the judges of election to cause to be placed on each ballot the number corresponding with the number of the voter offering the same, and providing that no ballot not numbered shall be counted, is mandatory, and must be enforced. Although this doctrine may sometimes result in very great hardship and injustice, by depriving the voters of their rights by reason of the negligence or misconduct of the officers of the election, it is nevertheless difficult to see how any different construction could have been placed upon such a statute. Statutes which simply direct the judges of election to number the ballots, without declaring what consequences shall follow if this be not done, may well be held directory only; but where the statute both gives the directions and declares what the consequences of neglecting their observance shall be, there is no room for construction. Such statutes are intended to prevent fraudulent voting; and if the legislature is of the opinion that the general good to be derived from their strict enforcement will more than counterbalance the evils resulting from the occasional throwing out of votes honestly cast, the courts cannot reconsider the mere question of policy. The legislative will upon such a subject, when clearly expressed, must prevail.” McCrary, Elect. §§ 190, 191. And the qualifications of electors are fixed by the constitution in Missouri. The rule in Kansas, announced in Jones v. State, 1 Kan. 273, and approved in Gilleland v. Schuyler, 9 Kan. 569, and quoted by McCrary, is stated in these words: “Unless a fair consideration of the statute shows that the legislature intended compliance with the provisions in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as directory merely.” And the qualifications of electors are fixed by the constitution in Kansas. The case of Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218, is cited in the dissenting opinion in this case. It was a case of fraudulent misconduct of election officers, and the return of the vote of a precinct was rejected, and the entire vote of the precinct lost, on account of such misconduct. And the qualifications of electors are fixed by the constitution in Montana. In Michigan, statutory provisions for securing the secrecy of the ballot are held mandatory without a statute that, when those provisions are disregarded, the ballots shall be void, or shall not be counted. Attorney General v. McQuade, 94 Mich. 439, 53 N. W. 944. And in Michigan the qualifications of electors are fixed by the constitution. In Nebraska, the indorsement of a name which is not the name of a judge of the election upon a ballot causes its rejection in the count, without any express statutory provision to that effect. Spurgin v. Thompson (Neb.) 55 N. W. 297. And in Nebraska the qualifications of electors are fixed by the constitution. In Texas, a law was passed in accordance with a constitutional requirement that ballots should be numbered. The law further provided that ballots not numbered should not be counted. Held mandatory. State v. Connor (Tex. Sup.) 23 S. W. 1103. And in Texas the qualifications of electors are fixed by the constitution.

We will not attempt a citation of the numerous cases in which the votes, not only of individual electors, but of entire precincts and entire elections, have been lost solely through the misconduct of election officers. The rule to be derived from the cases is correctly stated in Payne, Elect. § 502: “Many irregularities, of frequent occurrence, involving the performance or omission of acts not touching the essential validity of the election, are held to be insufficient to justify the rejection of the poll, unless committed in violation of statutes mandatory in form.” In Moyer v. Van De Vanter, supra, and in the dissenting opinion in the case at bar, it is held that omissions in violation of statutes mandatory in form are not sufficient to justify the rejection of the poll or ballot, but that such statutes are unconstitutional. These authorities are entitled to *1052 and receive our respectful consideration. We will not disregard them on the sole ground that they are opposed to the great weight of authority. The principal reason urged in support of these opinions is the hardship and injustice of depriving the voters of their right by reason of the negligence or misconduct of election officers. McCrary answers this in the quotation already given: “Such statutes are intended to prevent fraudulent voting, and if the legislature is of the opinion that the general good to be derived from their strict enforcement will more than counteract the evils resulting from the occasional throwing out of votes honestly cast, the courts can not reconsider the mere question of policy. The legislative will upon such a subject, when clearly expressed, must prevail.” But in the case at bar some question is made, in the dissenting opinion, as to the intention of the legislature in enacting the statute in question. It is there said: “It is safe to say that the framers of the Australian ballot law, many of them men of prominence in the history of the state, never contemplated the wholesale disfranchisement of electors through the negligence of election officers. I think they will stand aghast at such an interpretation of their statute.” 40 Pac. 977. As to this it is only necessary to say that our legislators have expressed their intention, in language too plain for interpretation or construction, that some ballots shall be void, and shall not be counted. It is not material, on this point, whether the ballots in question in this case are such ballots or not. When, in any case, ballots from any precinct, or from any number of precincts, come within the description of ballots which these prominent legislators have declared shall be void and shall not be counted, and when they stand aghast at the result, they can only reflect that the work is their own and not that of the courts. After thus appealing to the intention of the legislators, the dissenting opinion insists that such intention, whatever it may be, shall be utterly disregarded and set at naught as unconstitutional. Into such inconsistencies are able and ingenious jurists driven in attempting to defend indefensible positions.

The statutory provisions under consideration are part of an act of the last territorial legislature, consisting of 184 sections, entitled “Elections,” approved March 14, 1890. At that time the constitution had been ratified by popular vote by an overwhelming majority. That legislature, fresh from the people who had so recently ratified the constitution, enacted this law. It is safe to say that the members of this legislature did not regard as unconstitutional the provision that certain ballots should be void and should not be counted. The first state legislature re–enacted, generally, all the statutory law of the territory not repugnant to the constitution. Sess. Laws 1891, p. 157. This legislature also amended the election law in some particulars, but in no point affecting the decision of the questions reserved in this case. The second state legislature did not amend this law in any particular. The third state legislature amended the election law in some of its provisions, but not in any point affecting the questions under consideration. These successive legislatures left in force section 119, that “before delivering any ballot to an elector the said judges shall print on the back and near the top of the ballot, with a rubber or other stamp provided for the purpose, the designation ‘official ballot,’ and the other words on the official 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 said official stamp.” They left in force section 128, providing that “no judge of election shall deposit in any ballot box any ballot upon which the official indorsement does not appear.” They left in force section 164, providing that “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.” They left in force section 130, providing that “in the canvass of the votes any ballot which is not indorsed 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.” It is safe to say that these successive legislatures, in preserving these sections, did not think that they were violating the constitution, or impairing the constitutional rights of electors. It is safe to say that they intended these provisions to have effect and to be enforced, and that the prohibited ballots should not be counted. And while they were doing this, so far as we have been able to ascertain, assisted by the diligent research of counsel and of the dissenting justice, there could not be found a decision of any court or an opinion of any judge denying the constitutional authority of the legislature of a state to pass a law defining a lawful ballot, and prohibiting the counting of ballots which are not lawful. These provisions, and the entire system of voting known as the “Australian Ballot Law,” are intended to prevent fraud. It is poor consolation to the honest voter to cast his vote and have it counted, when he knows it may be offset by a purchased vote. It is poor consolation to the majority of honest voters of a populous district to cast their votes and have them counted, when they know that their majority will be met and overwhelmed by the votes of hordes of hired ruffians and repeaters. It is poor consolation to them to go into court for a remedy, and vainly attempt to get evidence of frauds which are notorious, while the successful criminals are laughing at their futile efforts. It is notorious, in the recent history of the country, that such frauds, committed *1053 with impunity, were attaining such enormous proportions, and were becoming so habitual, that thoughtful patriots believed that the foundation of popular government was being undermined, and its perpetuity threatened, and all the while there were laws upon the statute books for the punishment of such crimes,—all the while laws were in force, and the courts were open for the correction of the results of these crimes by which the popular will was defeated. And all the while the successful conspirators were carrying out their nefarious schemes with effect, educating hordes of retainers in venality and corruption, defying the popular will, and challenging the better elements of society with the self–convicting question, expressed generally in action, but sometimes in words: “What are you going to do about it?” This is no imaginary picture. Words fail in adequately depicting the reality in its true colors. The controlling principle in the operation of these enemies of popular government, so long expressed in their actions, and so long and so successfully carried into effect, has recently been confessed and proclaimed in clarion tones in the constitutional convention of South Carolina by the honorable member from Berkeley in these words: “We do not want fair elections.” Evils of this nature, so monstrous in older communities, were threatening Wyoming. Wyoming does want fair elections. Legislators, truly prominent in the history of the state, men of integrity and ability, have devoted their best thought to devising and perfecting a plan to meet and crush such frauds in their inception. Prevention is better than attempted cure. The result of their sustained and persistent labor is the present election law. By this law Wyoming, through four successive legislatures, has said that she does want fair elections. This law is her answer to the question, “What are you going to do about it?”

One provision of this law was considered so essential to the prevention of fraud, bribery, intimidation, and corruption, that it is put in language expressly mandatory. It specifies certain ballots which shall be void and shall not be counted. This provision is attacked as repugnant to the constitution. We are asked to declare it so by what we must regard as an innovation in the law of statutory construction, opposed to the great weight of authority, and without foundation in sound reason. The distinguishing feature of this statute, as compared with former election laws, is the prevention of fraud. The construction contended for would destroy this feature. It would relegate the wronged and defrauded public entirely to the old remedies by criminal actions and election contests, prosecuted after the harm was done. These were the remedies which so often, and for so long a time, approved inefficient, and which the legislature has endeavored to supplement by efficient preventive measures. The fear of punishment has never been found to be an efficient safeguard against political crimes. Let it once be known that the most mandatory provisions of our election law may be disregarded, and then there is at once destroyed all the security for the purity of elections which the law furnishes above former laws. Nothing more is required for the destruction of the barriers which Wyoming has erected for the protection of the honest verdict of her legal electors, as expressed at the polls, against the machinations of political tricksters and criminals. Nothing more is necessary to reopen the floodgates of fraud. Nothing more is necessary to restore the old order of things under which, in older communities, crime has reared aloft its brazen front in the sight of all the world; has defiantly stalked abroad in the light of the noonday sun; has placed its minions in positions of power, of trust, of honor, and of profit; has educated its votaries to regard crime as honorable, and to think and expect that successful crime should be abundantly rewarded. The legislators of Wyoming have done their work carefully, and, it would seem, wisely and well. That it is satisfactory to the people is evidenced by their preserving every distinguishing feature of the work after repeated tests in its practical operation, and repeated opportunities to repeal or modify it through their legislators. But this is straying from the question. Is the law constitutional? From considerations already advanced and authorities already cited, I am of the opinion that it is. The former order of this court will stand.