In re Primary Ballots , 33 Nev. 125 ( 1910 )

By the Court,

Norcross, C. J.:

Leonard B. Fowler, deputy attorney-general and a qualified elector of Ormsby County, State of Nevada, has filed with each of the justices of the supreme court an affidavit authorized by and made in pursuance of the provisions of section 29 of the act in relation to primary elections (Stats. 1909, pp. 273-291), praying for an order directing E. O. Patterson, county clerk of Ormsby County, forthwith to desist from certain alleged wrongful acts committed, or about to be committed, and to correct certain alleged errors in the printing of the sample and official ballots for the primary election to be held on the 6th day of September, 1910.

Affiant has attached as exhibits, and made a part of his affidavit, sample ballots prepared by the county clerk of Ormsby County and, under his authority and direction, printed for use in said county, for the Demooratic and Socialist parties. He also alleges a defect existing in the sample ballot printed for the use of the .Republican party.

The affidavit further alleges that affiant "is a member of and affiliates with the Democratic party; that at said primary election your affiant desires to vote for some qualified persons to fill the following offices and to be candidates of the Democratic party for said offices: Justice of the supreme court, superintendent of public instruction, district attorney, justice of the peace, and regent of the university, short term. That for said various offices no Democrat has filed a petition which would entitle his name to be printed upon the Democratic ballot. That your affiant desires to write in a blank space his choice for his party nominee for the various offices heretofore set forth. * * * That on said primary election ballot (sample, Democratic party) the following officers are omitted therefrom: Justice of the supreme court, superintendent of public instruction, district attorney, justice of the peace, and regent of the state university, short term. * * *

"That your affiant also alleges that he has a copy of the sample primary election ballot of the Socialist party, Ormsby County, Nevada, and that there is printed thereon the names of the candidates for the following offices: Choice for U. S. senator, representative in Congress, governor, lieutenant-governor, regent of state university, long term, and that the names of all other officers to be filled at the election in November of this year are omitted therefrom. * * *

"That affiant alleges that the same facts of omission that apply in regard to the primary election ballot of the Democratic party also apply in regard to the Republican party in the case of the office of district judge and that unless this error is corrected on the Republican official ballot the Republican voters of Ormsby County will be deprived of the privilege of expressing their choice of a nominee for judge of the district court of the first judicial district. ”

The affidavit further recites that the office of attorney-general has heretofore, upon request of an opinion from the district attorney of Nye County, rendered the following opinion in reference to primary ballots:

" Primary act says that to vote for a person whose name appears on the ballot stamp a cross (X) at right of name. Inference is that there exists the privilege of in some way voting for persons whose names are not on the ballot. I therefore advise that blank spaces be printed on the ballot for all officers where there are no printed names and under each group of names as provided in the act.”

Upon the hearing our attention has been called to what purports to be sample ballots for the various parties printed for use in other counties in the state, under the direction of the clerk thereof, from which it would appear that there is not, upon the part of the various county clerks, a uniform construction of the law in relation to sample ballots.

The following excerpts from various sections of the primary act will aid in a determination of the questions presented:

"Section 1. * * ■* This statute shall be liberally construed, so that the real will of the electors shall not be defeated by any informality or failure to comply with all provisions of law in respect to either the giving of any notice or the conducting, of the primary election or certifying the results thereof. ”

"Sec. 4. 1. At least sixty days before the time for holding such September primary election * * * the secretary of state shall prepare and transmit to each county clerk, * * * a notice in writing designating the offices for which candidates are to be nominated at such primary election. * * *

"3. In the case of the September primary elections for the nomination of candidates for city and county offices * * * the city clerk * * * shall cause the publication of notice of such primary election, together with a complete statement of the offices for which candidates are to be nominated. * * *”

"Sec. 5. The name of no candidate shall be printed on an official ballot used at any primary election unless * * * a nomination paper shall have been filed in his behalf as hereinafter provided by this act. * * *”

"Sec. 10. At least twenty-five days before any September primary election * * * the secretary of state shall transmit to each county clerk of any county a certified list containing the names * * * of each person for whom nomination papers have been filed in the office of secretary of state and who is entitled to be voted for in such county at such primary election, together with a designation of the office for which such person is a candidate and of the party or principle he represents.

"Such county clerk shall forthwith, upon receipt thereof, publish under the proper party designation the title of each office, the names and addresses of all persons for whom nomination papers have been filed, the date of the primary election. * * * ”

" Sec. 12. 1. All voting at the primary elections within the meaning of this act shall be by ballot. * * * It shall be the duty of the county clerk of each county to provide such printed official ballots to be used at any September primary election for the nomination of candidates to be voted for * * * at the ensuing November election. * * * The names of all candidates for the respective offices for whom the prescribed nomination papers have been duly filed shall be printed thereon. ”

"2. Official primary election ballots * * * shall be * * * as long as herein-prescribed captions, heading, party designations, directions to voters and lists of names of candidates, properly subdivided according to the several offices to be nominated for, may require; * * *.”

"4. At least three-eighths of an inch below the voting precinct designation and the date of the primary election shall be printed' * * * the following instructions to voters: 'To vote for a person whose name appears on the ballot, stamp a cross (X) in the square at the right of the names of the person for whom you desire to vote. ’

"5. The instructions to voters shall be separated from the lists of candidates and the designations of the several offices to be nominated for. * * * The names of the candidates and the respective offices shall * * * be printed on the ballot. * * *”

"7. * * * Under each group of names of candidates shall be printed as many blank spaces, defined by light lines or rules, three-eighths of an inch apart, as there are to be candidates nominated for such office. * * *

"8. At the bottom of the last column on any official primary election ballot * * * there shall be left one blank space defined by light lines or rules three-eighths on [of] an inch apart and which shall be preceded by the words ' County Committeeman. ’ ”

Subdivision 9 of section 12 sets out substantially the form in which the primary ballot shall be printed. This form, under the heading "State and District,” contains, in the enrolled bill, the names of all state and district officers to be elected by the. people, excepting that of inspector of mines and clerk of the supreme court, the bill creating the former office having become a law subsequent to the approval of the primary act, and the latter office not having been considered an elective office for many years prior to the passage of said act (State v. Douglass, 33 Nev. 82); also the names of all county and township offices. Under each office designation — " U. S. Senator, Representative in Congress, Governor and Lieutenant-Governor” — appear three fictitious printed names, representing candidates, and the direction " Vote for one.” Below these names appears no blank space. Under all the remaining designations of the state, district, county and township offices and the directions "Vote for one,” "Vote for three,” as the case may -be, appear three blank spaces, without any fictitious names.

" Sec. 14. * ■ * * On the tenth day before such primary election the county clerk shall correct any errors or omissions in the ballot. * * ■ * ”

" Sec. 19. The voter shall designate his choice on the ballot by stamping a cross (X) in the small square opposite the name of each candidate for whom he wishes to vote. * * * ”

" Sec. 24. The person receiving the highest number of votes at a primary election as the candidate for the nomination of a political party for an office shall be the candidate of the party for such office, * * * and the elector receiving the highest number of votes of his party in his precinct for county committeeman shall be the county committeeman of his party for the ensuing two years. * * * ”

"Sec. 25. The county committee of any party shall consist of one member from each voting precinct in such county, elected at the last preceding primary election. * * * ”

"Sec. 27. Vacancies occurring after the holding of any primary election shall be filled by the party committee, * * * as the case may be.

"Sec. 31. Any person who, being in possession of any nomination paper or papers and affidavits entitled to be filed under the provisions of this act, shall - wrongfully either suppress, neglect or fail to cause the same to be filed at bhe proper time and in the proper place shall be guilty of a misdemeanor. * * * Any act or omission declared to be an offense by the general laws of this state concerning primaries and elections shall also in like case be an offense concerning primary elections as provided for by this act, and shall be punished in the same manner and form as therein provided, and all penalties and provisions of the law governing elections, except as herein otherwise provided, shall apply in equal force to primary elections as provided for by this act.” Our primary election act was doubtless copied, in the main, from a bill pending in the legislature of the State of California, which bill became a law March 24, 1909, one day later than the approval of the primary act of this state. (Stats. Cal. 1909, p. 691.) This is evidenced by the fact that the act adopted in this state is in the main the same as the California act, having many identical provisions as well as a number of provisions found in the California act which are incongruous with political conditions in this state— for example, provisions such as the appointment of congressional and assembly district committees. The act appears to have been hastily prepared and adopted and the intention of the legislature has not in all cases been made clearly manifest from the letter of the act. This want of definiteness of expression has occasioned a contrariety of construction upon the part of various county clerks, hence this proceeding.

Does the law re'quire the printing on the primary ballot of every political party the name of every elective office for which a candidate or candidates may be nominated at such primary election, even though no candidate has filed nomination papers requiring his name to be printed on the ballot? We think the law certainly makes provisions for such printing. The form of the ballot to be substantially followed, set out in subdivision 9 of section 12, sets out the name of every elective office then known by the legislature to be such, some with and some without names of candidates following. Subdivisions 2 and 5 of section 12 both make specific mention of the printing on the ballot of office designations. Subdivision 1 of section 4 requires the secretary of state to certify to the several county clerks a notice designating the offices for which candidates are to be nominated. Subdivision 2 of the same section requires the clerk to publish such list. Section 10 provides for the certifying by the secretary of state of the names of all candidates who have filed nomination papers, together with the designation of the office for which each person is a candidate, and that upon receipt of such certificate the county clerk shall forthwith "publish under the proper party designation the title of each office, the names * * * of all persons for whom nomination papers have been filed, ” etc.

Nowhere in the act is there any expression or intimation that the office designation is not to be placed on the ballot unless some candidate has filed nomination papers. Upon the contrary, we think, from the reading of the various sections, it is clear the legislature intended to provide for the placing of the names of all elective offices on all party .primary ballots.

The next question presented is: Did the legislature intend that there shall be placed below each office designation one or more blank spaces, equal to the number of candidates to be nominated for the particular office, as the case may be, where there are no names of candidates printed on the ballot, and to follow such names where there are such so printed?

We think such is the proper construction of the act. It is true the form of the ballot, set out in the statute to be substantially complied with, does not contain a blank space below the fictitious names of candidates, and this has doubtless misled a number of the county clerks. Upon the other hand, where there are no purported names of candidates under an.official designation there are three blank spaces, in each instance, although in most of the cases only one nominee could be voted for. It would seem that this form was prepared with regard more for its appearance to the eye than as an attempt to follow very carefully the statutory provisions prescribing how it should be prepared. . Even the instructions to voters, as printed in the form, uses the word "mark” where the controlling statutory provisions use the word " stamp. ” The form of ballot appearing in the statute is intended as an aid to the clerk in preparing the ballot, but the form must give way to specific provisions of the statute where there is a conflict in substantial particulars.

Section 7, supra, provides that "under each group of names of candidates shall be printed as many blank spaces * * * as there are to be candidates nominated for such office. ”

The word " group, ” as used in the foregoing paragraph of the section, does not mean that blank spaces are to be placed on the ballot only where there are two or more candidates whose names appear following the name of the office, as is manifest by the use of the same word in other provisions of the act, particularly in sections 5 and 6. For example, take the expression: " Each group shall be preceded by the designation of the office for which the candidates seek nomination and the words 'Vote for one’ or 'Vote for two’ or more, according to the number to be nominated.” This provision of our statute is identical with the provision in the California statute and the form of the ballot set out in the California statute gives a group of fictitious names following each office designation, but this provision has been construed by the Supreme Court of California to mean that there shall be a blank space below such office designation, even though the name of no candidate is printed on the ballot. (Fickert v. Zemansky, 108 Pac. 269). Any other construction would be unreasonable and would fail to carry out the manifest intent of the legislature. As this court said in State v. Clark, 21 Nev. 337: "We are not always to be guided by the letter of the act. We are to seek for the meaning that the words were intended- to convey, and endeavor to carry out the intention of those adopting' it. ”

Having determined that it was the intention of the legislature to provide for placing on the ballot the names of all office designations, for which offices candidates are to be nominated, together with a blank space, we come to consider what was the intention of the legislature by such provision.

It is manifest if such blank space cannot be used for any purpose, it is mere surplusage, and had better be left off the ballot, for, in such case, it could only serve to confuse the voter, and in many instances might be the means of preventing his ballot from being counted. Appearing on the ballot, the conclusion ' of the voter might be that the blank space was intended for him to write in the name of his choice if he so desired. We cannot impute to the legislature a deliberate intent to deceive the voter by the provisions of an act the purpose of which was to place in the hands of the entire membership of a party the control of party nominations. It is a cardinal rule of statutory construction that statutes shall be construed if possible so as to give all the language effect.

That these blank spaces are intended for the voter to write in the name of his choice for a candidate for a particular office, in a case where there are no printed names of candidates, or he is not satisfied to vote for any of the candidates whose names are printed on the ballot, is made entirely clear in the provisions of the California act. In addition to the provisions for instructions to voters contained in subdivision 4 of section 12 of our act, supra, subdivision 4 of the California act contains the additional provision: “To vote for a person whose name is not printed on the ballot,-write his name in the blank space provided for that purpose.” If it could be said that our act was copied from the California act and that we could presume that the legislature knew of this provision, then there would be room for argument that this provision was left out of the Nevada act ex industria, and, hence, a manifestation of an intent that such provision of the adopted act would not be incorporated into our laws. But we do not know and cannot say how this provision read in the bill pending before the California legislature. Our subdivision 4 may have been a literal copy from subdivision 4 as it appeared in the proposed California measure at the time of the preparation of the bill introduced in the Nevada legislature, and the California measure may have subsequently been amended in the particular mentioned to make more clear the purpose of other existing provisions. In any event, the mere fact that the California act contains a specific provision directly authorizing the writing in of names of candidates, by the voters, cannot, of itself, be advanced as an argument that the Nevada legislature did not intend so to provide, for the reason, before stated, that the Nevada act became a law prior to the California act. The intention of the legislature of this state must be gathered from the provisions of our act, independent of the reading of said subdivision 4 of the California act.

Nowhere in the act is there any express provision that no name shall appear on the ballot except those printed thereon. Section 5, supra, provides that "the name of no candidate shall be printed on an official ballot * * * unless a nomination paper shall have been filed,” etc. Ought we to interpolate after the words "be printed” in the section supra the words "or otherwise appear?” We must do so, if there can be no candidates for a nomination for an office, except those who have filed petitions. But the reading of these words into the section renders meaningless and destroys the force of all provisions of the act relative to blank spaces and the printing of official designations, where there are no printed candidate’s names. Such a construction is not permitted if it can be avoided. The very language of section 5, however, taken by itself would indicate that there might be candidates other than those whose names are printed on the ballot. Taking that section alone, the reasonable construction, we think, would be that if a candidate wants his name printed on the ballot he must file a nomination paper. Reading section 5, together with other provisions of the act, particularly section 12, and it is clear, we think, that candidates whose names may appear upon the ballot are not limited to those whose names may lawfully be printed on the ballot. Subdivision 1 of section 12, among other things, provides "The names of all candidates for the respective offices for whom the prescribed nomination papers have been filed shall be printed thereon. ”

[Note — Italics, where used in this opinion, are ours. ]

This language of itself does not imply that there can be no candidates other than those whose names are printed on the ballot. Certainly' such intention ought not to be imputed in the face, of other provisions indicating that names may appear thereon otherwise.

As was said by this court in Roney v. Buckland, 4 Nev. 57: "In the interpretation of any phrase, sentence or section of a law, the first thing to be ascertained is the ultimate and general purpose of the legislature in the enactment of the law. When that is known or ascertained, then every sentence and section of the entire law should be interpreted with reference to such general object, and with a view of giving it full and complete effect, extending it to all its logical and legitimate results. That object must, of course, be ascertained from the act itself. But the whole act must be taken together, and when the general object is apparent any fugitive expression, or any sentence which it is impossible so to interpret as to make it accord with and further such general object must be ignored entirely.” (Bank v. Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Toll Road, 10 Nev. 155; Ex Parte Silenhauser, 14 Nev. 365; 1 Kent’s Comm. 461; Sutherland’s Statutory Cons., sec. 241.)

In State v. Ruhe, 24 Nev. 261, this court quoted with approval the following from Black on Interp. Laws, p. 83: " 'No sentence, clause, or word should be construed as unmeaning and surplusage if a construction can be found legitimately which will give force and preserve all the words of the statute. It is a canon of construction that, if it be possible, effect must be given to every word of an act of parliament. ’ ” * * *'

The purpose of the primary act was to place in the entire electorate of a party the power to directly name party candidates for office and' to do away with the old system of making such nominations through the means of delegates elected to a convention. The main purpose of the primary act is very distinct from the object sought to be accomplished by what is familiarly ■ known as the Australian ballot law. The latter law was designed to protect the voter at general elections from any undue influence in casting his ballot in a manner other than in accordance with the dictates of his own will. This law has always been construed with this main end and purpose in view. That act makes secrecy the greatest means of protecting the voter in the free exercise of his right of suffrage, hence the provisions regarding distinguishing marks and the policy of the courts in determining what are and what are not such marks.

As the central object and purpose of the primary election law is to place in the hands of all of the electors of a party the power of choosing the party nominees for office, the act must be construed with that end and purpose in view. Manifestly, the act was not made primarily for for the benefit of party candidates, but rather to provide a means for the party electors to express their choice. It is not always the case that those who are most anxious to serve the public in office are the ones who appeal most strongly to the private citizen. Very often it is the case that those citizens who are the best qualified to serve the public care very little about public office, and do not voluntarily put themselves out to become candidates, while on the other hand, those who want office for their own personal ends, can always be relied on to take the necessary steps to have their names upon a ballot. If the voter’s choice is limited only to those names which are printed on the ballot, then very often, according to the voter’s view, he is; obliged to vote for one whom he may regard as incompetent or worse, or not vote at all, and is without the privilege of indicating his real choice.

We think the legislature intended, by providing for the blank space, that a party elector may write in the name of any qualified elector for whom he wishes to cast his vote for nomination for any particular office and may then vote for such elector by stamping a cross thereafter. In that way only can the members of a political party make a nomination where no candidate has filed nomination papers. Suppose a party had but one candidate for the nomination for an office like that of governor or United States senator, and the person who had filed his nomination papers was so generally satisfactory to his party that no other candidate is likely to oppose him, and that prior to the primary election such candidate should die, can it be said that the legislature did not intend, in such a case, that the party shall have some means of expressing any other choice for such a nomination? We think not.

Under the prior existing primary act, which prevailed in this state for many years, the members of a political party voted for their choice for delegates to a nominating convention in any way they pleased, generally by writing the names of their choice for delegates, although in the more populous precincts printed names on a slip were frequently used. The delegates in a convention expressed their choice for nominees by writing the names thereof on ballots. In construing statutes, it is proper to consider the prior existing law, the evils therein sought to be corrected, and the remedy provided.

There is nothing in the present act which indicates an intention of limiting the method of indicating a full and free choice which the elector formerly had, although it only extended to the selection of delegates.

In determining that it was the intention of the legislature that party electors are not limited to voting for those candidates whose names are printed upon the ballot, but that they may write in the blank space, provided for such purpose, the name of their choice, we are aided by the provisions for a similar blank space for county committeeman. This provision does not appear in the California act, and hence may be said to have been inserted in the Nevada statute ex industria. Nowhere is there any specific provision that a name may be written therein, but there are provisions for canvassing the vote for such committeeman, the meeting of the committee composed of those so selected, and matters of that kind. If a name is not authorized by the act to be written in, then the other provisions of the act for canvassing the vote, etc., would be senseless, and, besides, there could be no party county organization. That the legislature intended that the voter could write in the name of his choice for county committeeman, is manifest. If the legislature did not consider it necessary to specifically provide for writing in the one case, it doubtless did not in the other, but the legislative intent is, nevertheless, clear in both cases.

There is no similar provisions in the primary act limiting the conditions under which a name may be written upon the ballot, as appears in the Australian ballot law (Comp. Laws, 1704.) Those provisions have peculiar application to the latter law and are totally inapplicable to the primary law.

Under the Australian ballot law the writing of a name upon a ballot, except to fill a vacancy under the conditions expressly provided by that act, is specifically prohibited, and the same constitutes a distinguishing mark. (State v. Sadler, 25 Nev. 190.)

While the writing of a name upon the official ballot at the general election, by an elector, violates the purpose of that act, in that it tends to destroy the secrecy of the ballot, the writing of the name of a qualified elector on a primary ballot, in order to vote for his nomination for office, is in accordance with the spirit and purpose of the latter act, to wit, the selection of party candidates by the popular choice of the party.

Under the view we take of the primary act of this state, the decision of the supreme court of California in the Fickert case, supra, relied on by the deputy attorney-general in his argument, applies with equal force to our act, and that, as held in that case, any qualified elector of any party may at a primary election vote for any quali- ■ fied elector for nomination by his party for any particular office by writing his name upon the ballot in the appropriate blank space and stamping a cross thereafter.

Were it not for the provisions directing the printing of a blank space on the ballot for county committeeman (carrying with it the manifest intent that such space is to be used by writing in the choice of the party elector for such committeeman), it might, with much force, be urged that the provisions of section 31, extending "all penalties and provisions of the law governing elections, except as herein otherwise provided, shall apply in equal force to primary elections as provided by this act, ’’ prohibits the writing of names of candidates for office upon the ballot, because such writing on the general election ballot is within the penal injunction against distinguishing marks. But an argument of this kind is without force when it is conceded that the elector may write on the ballot the name of a committeeman.

It is clear, also, that the blank spaces are not provided, as in the Australian ballot law, for use for filling vacancies, for there is no means provided in the primary act for filling vacancies except after the primary election. (Sec. 27, supra.)

It is ordered that the county clerk of Ormsby County cause to be printed for use at the primary election to be held on the 6th day of September, 1910, ballots for the Democratic, Republican and Socalist parties containing the designation of every office to be filled by election at the November general election, regardless of whether or not nomination papers for candidates for any particular office have or have not been filed, and that a blank space three-eighths of an inch wide, together with a voting square for stamping the cross, as provided in the statute, be placed below the name or names of candidates for each particular office, where names are printed on the ballot, and below the office designation where no such names are so printed.

Sweeney, J.: I concur.