Lynip v. Buckner , 22 Nev. 426 ( 1895 )

Opinion on the merits:

The contestant and contestee, who, for convenience, we shall call plaintiff and defendant, were rival candidates for the office of district attorney of Humboldt county at the election of 1894. Upon the returns, as canvassed by the board of county commissioners, the defendant had a majority of five votes; but, upon the trial of this contest in the district court, it was found that the plaintiff had received three more votes than his opponent, and he was accordingly declared elected. From this judgment, and an order refusing a new trial, defendant appeals.

In Rebel Creek precinct, in that county, it appears that defendant received 15 votes; the plaintiff 1; and another candidate (H. Warren), 12. The court rejected all the votes of that precinct, cast under the following circumstances: The ballots were printed, as required by law, with a strip on the left side, intended for a stub, separated from the ballot proper by a perforated line, and with a like strip on the right side, also separated by a perforated line. Upon each of these strips the number of the ticket was printed. By some accident, the binding of the stubs into book form had become broken, permitting the ballots to separate into loose sheets. When a voter applied for a blank ballot, the entire sheet was given him by the inspector, including the stub, which should have been separated from the ballot, and retained by the inspectors. When the ballot was returned to them for deposit in the ballot box, the inspectors removed the strip intended for a stub, but failed to remove the other strip. It is not charged that this was done by the inspectors fraudulently or intentionally, and the evidence is clear and uncontradicted that it was the result of a mistake upon their part; they, and apparently every one connected with the election, supposing that they had removed everything from the ballot that the law required to be removed. It does not appear when the mistake was discovered, but certainly not until after the polls had closed.

Our statute, adopting what is popularly known as the "Australian ballot law" (Stats. 1891, p. 40, sec. 11), provides that the secretary of state shall furnish to the county clerks the paper on which the ballots are to be printed, which is to be water-marked with a design to be chosen by the secretary. The ballots are to be printed under the direction of the county clerks. They are to contain the names of all candidates whose nomination has been certified and filed according to the provisions of the act, and no other name. The names are to be arranged under the designation of the office, and the political designation of each candidate is to be printed opposite his name. When a ballot is handed to a voter, the number of the ballot is to be written on the registry list, opposite his name. He must prepare his ballot by marking with a black lead pencil a cross or X after the name of the person for whom he intends to vote. Upon handing the ballot to the inspector, that officer "shall separate the strip bearing the number from the ballot, and shall deposit the ballot in the ballot box." Sections 24 and 26 of the act, read as follows:

"Sec. 24. No ballot shall be deposited in the ballot box unless the water mark, as hereinbefore provided, appears thereon, and unless the slip containing the number of the ballot has been removed therefrom by the inspector."

"Sec. 26. In counting the votes any ballot not bearing the water mark as provided in this act shall not be counted, but such ballots must be preserved and returned with the other ballots. When a voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine the voter's choice for, any office, his vote for such office shall not be counted. Any ballot upon which appears names, words or marks written or printed, except as in this act provided, shall not be counted."

Any officer willfully neglecting or refusing to perform any duty devolved upon him by the act is, upon conviction, to be imprisoned in the state's prison for from one to five years.

It will be noticed that the statute does not expressly direct that a ballot upon which this strip has been left shall not be counted, but these ballots were rejected upon the ground that they came within the latter part of section 26, which inhibits the counting of ballots "upon which appears names, words, or marks written or printed, except as in this act provided;" and this is the point to be determined upon the appeal, so far as they are concerned. It is, perhaps, a close question, and one upon which courts and judges may easily disagree. It is to be observed that the voters of this precinct were themselves in no wise in fault. They possessed every qualification for voting, and had complied with every requirement of the law as to registration, marking their ballots, etc.; and it is earnestly pressed upon us by defendant's counsel that if this law is to be construed as preventing the counting of their votes, either for the willful fraud or innocent mistake of the inspectors, in not removing the slip, it is unconstitutional, within the principles ofStinson v. Sweeney, 17 Nev. 309; Davies v. McKeeby,5 Nev. 369; Clayton v. Harris, 7 Nev. 64; and similar cases. See, also, Moyer v. Van DeVanter (Wash.) 41 Pac. 60 (recently decided). As we are, however, of the opinion that that is not the correct interpretation of the act, it is unnecessary to consider this argument any further than as it throws light on the proper construction of the statute. It seems to us that ballots cast under the circumstances existing here should not be rejected, and we will now state, as briefly as possible, the reasons upon which our conclusion is based:

The right of voting, and, of course, of having the vote counted, is one of most transcendent importance, the highest under our form of government. "That one entitled to vote shall not be deprived of his privilege by action of the authorities is a fundamental principle." (Cooley, Const. Lim., 6th ed., 775.) We need not go outside the decisions just cited from our own court, to show how jealously this right is guarded. But while the legislature cannot directly deprive the elector of this privilege, section 6, art. II. of the constitution specially authorizes it to enact laws for the registration of electors, to preserve the purity of elections, and to regulate the manner of holding and making returns of the same. Such laws will necessarily sometimes have the effect of preventing the elector from voting. For instance, a law for the registration of voters, to be effectual, must provide that one not registered shall not vote; and, to guard the purity of the election, it may require him to mark his ballot in a certain way, and to comply with many other conditions. But in all these matters the voter had the privilege of voting, by a compliance with the law, and his failure to do so is somewhat owing to his own negligence or misfortune. Whether he can also be deprived of it through the fraud, negligence, or mistake of others would involve the constitutional question suggested, and upon which we find it unnecessary to pass in this case.

At least, this great constitutional right is not to be taken from him upon any doubtful construction of a statute. Assuming the constitutionality of the law, before it should be construed to work his disfranchisement it must be clear that, under the circumstances then existing, the legislature intended such to be the case. The spirit in which such laws are to be construed is well stated by Andrews, J., inTalcott v. Philbrick, 59 Conn. 485, as follows: "All statutes tending to limit the exercise of the elective franchise by the citizen should be liberally construed in his favor, and, unless the ballot comes within the letter of the prohibition against a particular kind of ballot, it should be counted. A great constitutional privilege — the highest under the government — is not to be taken away on a mere technicality, but the most liberal intendment should be made in support of the elector's action, whenever the application of the common-sense rules which are applied in other cases will enable the courts to understand and render it effectual." "All statutes tending to limit the citizen in his exercise of this right should be liberally construed in his favor. Unless the ticket comes within the letter of the prohibition it should be counted." (Owens v. State,64 Tex. 500, 509.) To the same effect are State v. Saxon,30 Fla. 668; State v. Phillips, 63 Tex. 390;Boyd v. Mills, 53 Kan. 594;Kellogg v. Hickman, 12 Colo. 256;Bowers v. Smith, 111 Mo. 61;Parvin v. Wimberg, 130 Ind. 561;State v. Russell, 34 Neb. 116;Stackpole v. Hallahan, 40 Pac. 80.

Laws are also to be construed according to their spirit and meaning, and not merely according to their letter. "It is a familiar canon of construction that a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers." (Riggs v. Palmer, 115 N. Y. 506.) "It is one of the great maxims of interpretation to keep always in view the general scope, object, and purpose of the law, rather than its mere letter." (Rutledge v. Crawford,91 Cal. 533.) "A rigid and literal reading would, in many cases, defeat the very object of the statute, and would exemplify the maxim that `the letter killeth, while the spirit keepeth alive.' Every statute ought to be expounded, not according to the letter, but according to the meaning. * * * And the intention is to govern, although such construction may not, in all respects, agree with the letter of the statute." The reason and object of a statute are a clue to its meaning, and the spirit of the law and the intention of its makers are diligently to be sought after, and the letter must bend to these. (Tracy v. Railroad Co.,38 N. Y. 433, 437.) This meaning is undoubtedly to be ascertained from the language of the act, viewed in the light of the circumstances under which it is used. If plain and unambiguous, it must be construed as it reads, no matter how unreasonable its operation may be. But as it is not to be presumed that the legislature intended to enact an unreasonable or unjust law, where such would be the result of its operation, if construed in a certain way, and the language is not positive and direct to that effect, it is the duty of the courts to cast about to see if it is not susceptible of some other construction, and in doing this they should consider, not only the language used in some particular section, but the whole scope and purpose of the act, and adopt, if possible, such a construction as will harmonize the various sections with this purpose, and with the demands of justice.

What was the object and purpose of the enactment of the Australian ballot law, the essential features of which have now been adopted by nearly every state in the Union? This question has often been answered by the courts, and sometimes in language that we shall not attempt to improve upon. In one case the supreme court of Connecticut said: "The object of the statute of 1889 is obvious. It is to secure an honest vote, correctly expressing public sentiment, by preventing fraud, corruption, and intimidation." After speaking of certain provisions of the Connecticut law, the court resumed: "This would seem to effectually preclude any opportunity for fraud or imposition. Corruption, by making it impossible for any one who would bribe or otherwise corrupt a voter to know that the required vote was actually deposited. Intimidation, by giving to each voter an opportunity to select and prepare his ballot, and to deposit it, free from observation, and in such manner that no one but himself can possibly know how he votes, unless he chooses to disclose it." (Talcott v. Philbrick,59 Conn. 472, 478.) In another case it was said: "A study of the statute upon the subject of elections leaves no doubt that the purpose is to secure a fair expression of the will of the electors of the state, by secret ballot, uninfluenced by bribery, corruption, or fraud. The disfranchisement of whole precincts by reason of an honest mistake on the part of the election officers is inconsistent with that purpose."(Parvin v. Wimberg, 130 Ind. 561.) And again: "The evident intent of this provision was to provide against voters marking the individual ballot which they cast in such manner as to distinguish it." (Lindstrom v. Board,94 Mich. 467.)

This being the object of the law, it should be so construed as to remedy the evil against which its provisions are directed, and, at the same time, not to disfranchise voters further than is necessary to attain that object. It would be almost the work of omniscience to enact a law in such language that it would not, under any circumstances, do more nor less than was intended by the lawmaker. Even words most carefully chosen will, in some unanticipated situation, overrun that intention, and in others fall short of it. It is the duty of the courts to keep that intention, once it is ascertained, steadily in view, and to endeavor to apply the law where it was intended to apply, and to except those cases where it was not.

It being, then, the purpose of the law to effectually prohibit and prevent intimidation and vote buying, all its provisions were enacted with that end in view. Where it is forbidden to count ballots containing names, words, or marks other than those provided for in the act, notwithstanding the generality of the language, only such as tend to distinguish the ballots were intended, and such as were, or may have been, placed upon the ticket for that purpose. For instance, all nominations for state officers are to be filed in the office of the secretary of state, and he is to certify them to the various county clerks. It certainly never was intended that if he should, either by inadvertence or design, certify the name of a person who had not been nominated, and which was therefore wrongfully printed upon the ballots, this should invalidate, and require the rejection of, every vote cast in the state; and yet this would be the result of a strict adherence to the letter of the law, for it would be a name on the ballot not provided for by the act. The same may be said of the wrongful printing of a name on the ballots by order of the county clerk, or the insertion by the printer of a word or mark not provided for by the law, and which would be on all tickets alike. This would in no manner tend to distinguish one ballot from another, and could not be used for a fraudulent purpose. Such a word or mark would not be within the spirit of the law, although within its letter; and in such case the law should be liberally construed in favor of the voter, and not so as to disfranchise a whole county. This simply illustrates the proposition that there are situations in which the legislature could not have intended that ballots with forbidden words or marks upon them should not be counted. They are instances of where the language has overrun the intention.

But in the case we have to deal with here the marks upon the ballots (admitting that marks upon the strip attached to the ballot are marks upon the ballot itself, as is doubtless within the intention, if not the letter, of the law), although not placed thereon intentionally, nor with the voter's knowledge or consent, are such as to identify the ballots. Does this alter the case? Under the circumstances existing here, could this fact have been used for the purposes of intimidation or bribery? It is not possible to intimidate a man into voting for men or measures against his will, unless he has reason to believe that if he does not so vote it will become known to the intimidator. Here the voter knew that if the law was complied with no one could ever ascertain how he had voted. It is not shown that any knew that it was not being complied with, and in fact the fair inference from the testimony is that it was not known to any one until after the polls had closed. All supposed that the slips were being removed, and it follows that none could have been intimidated by the fact that they were left on the ballots.

But the principal reason for forbidding these distinguishing marks was undoubtedly to defeat bribery. It was believed that the vote buyer would not invest money in the purchase of votes if there was no way by which he could ascertain whether the voter had voted as agreed. The only way in which this could be done by means of marks would be by some mark being placed upon the ballot which had been agreed upon between them; and it must be done either by the voter himself, or by some one else with his knowledge and consent. It is clear that this slip was left on the ballots accidentally, and not for any such purpose as that; and therefore it is not within the spirit or meaning of the law, so far as corruption is concerned. By the blunder of the inspectors, the strips and numbers were left upon the ballots, whereby it was possible to ascertain just how each one had voted. This was done unintentionally, and without the voters' knowledge. Consequently, as we have tried to show, it could not have been made the means of intimidation, nor the agent of corruption. But by reason of it, without being at all in fault themselves, the voters have incurred all the odium and disadvantage of having the knowledge of how they voted made public. What reason can there be for adding to their punishment that of disfranchisement? To so hold would be like piling Ossa upon Pelion, and, it would seem, was clearly not intended by the law. To hold that it was, would be not to liberally construe the act in favor of the voter, but strictly against him.

In addition to what we have said of the scope and spirit of the ballot law, we think there is that in the letter of the act which strengthens our conclusion very much. By section 24, already quoted, it is provided that no ballot shall be placed in the ballot box upon which the water mark does not appear, nor from which the slip has not been removed. But, while section 26 provides that ballots found in the box not bearing this water mark shall not be counted, it says nothing about the slip being left on. Considering the juxtaposition of these terms in section 24, it is hardly probable that the omission to mention the slip in section 26 was accidental. If not, it clearly indicates an intention that leaving the slip on should not cause the rejection of the ballot. There is reason, too, why such a distinction should be made. If a citizen votes a ballot not bearing the water mark, he is somewhat in fault himself; and, besides, there could be but one purpose for substituting such a ballot for the one that was genuine, and that would be fraud. On the other hand, the slip is to be removed by the inspector after the ticket is surrendered to him, and with this the voter has nothing to do; and very often, as in this case, it might be left on the ballot by oversight or accident.

In this connection we quote from the recent decision by the supreme court of Washington, already mentioned. Speaking of the decisions that have been rendered under the ballot laws of the different states, the court said: "These cases cannot all be harmonized, but the general trend thereof has been to recognize a clear distinction between those things required of the individual voter and those imposed upon election officers. There is a disposition to hold the former valid and mandatory; but where there has been a substantial compliance with the law on the part of the individual voter, and it is made to appear that there has been in fact an honest expression of the popular will, there is a well-defined tendency to sustain the same, although there may have been a failure to comply with some of the specific provisions of the law upon the part of the election officers, or some of them." (Moyer v. Van DeVanter, 41 Pac. 60.) In that case the law required the inspector, or one of the judges, to write his initials on the ballot before it was delivered to the voter, and directed that any ballot not bearing those initials should be void, and not be counted. But it was held that the law was unconstitutional, and, where the officials had failed to so mark any of the ballots of a precinct, that they should still be counted.

There are decisions conflicting with the views we have expressed, but we believe the greater in number, and the better-considered cases, support our conclusions. We have examined them all, but it would be an endless and unprofitable task to review them, and we shall not attempt it. Our conclusion concerning these ballots renders it unnecessary to pass upon the other ballots objected to by appellant.

Judgment and order refusing a new trial reversed, and cause remanded.

BONNIFIELD, J.: I concur.