Bingham v. Broadwell

• Citation: 73 Neb. 605,103 N.W. 323
• Parties: BINGHAM v. BROADWELL.
• Decision Date: 19 April 1905
• Court: Supreme Court of Nebraska

73 Neb. 605

103 N.W. 323

BINGHAM

v.BROADWELL.

Supreme Court of Nebraska.

April 19, 1905.

Syllabus by the Court.

1. A voter who has complied with the statute by obtaining from the election board a ballot indorsed in writing with the names of two members of the board, both of whom are ostensibly, and, as he honestly supposes, are really, judges, will not be deprived of his vote by the mere fact that one of such names is that of a clerk of the election.

2. Minor irregularities by members of an election board, voters, and bystanders at a polling place, unaccompanied by fraud or conduct affecting the integrity of the ballot, will not operate to quash the election.

3. Irregular and defective or unauthorized markings of a ballot, apparently the result of innocent awkwardness, inattention, or ignorance, and apparently not intended or made use of for the purpose of subsequent identification, will not justify the rejection of such ballots, if the intent of the voter can be ascertained therefrom.

Commissioners' Opinion. Appeal from District Court, Douglas County; Day, Sears, and Redick, Judges.

Action by William W. Bingham against Frank A. Broadwell. Judgment for defendant, and plaintiff appeals. Affirmed.B. G. Burbank and Jefferis, Howell & Shotwell, for appellant.

Smyth & Smith, for appellee.

AMES, C.

This is an appeal from a decision by the district court of a contest of an election to the office of clerk of the district court for Douglas county. The first ground of contest is the claim that in the First Precinct of the Fifth Ward of the city of South Omaha the ballots were indorsed by a judge and clerk of election instead of by two judges. It was held by this court in Orr v. Bailey, 59 Neb. 128, 80 N. W. 495, and again in Mauck v. Brown, 59 Neb. 382, 81 N. W. 313, and is generally held in other jurisdictions, that the statutory requirement of indorsement is mandatory; and the subject is not regarded as open for discussion here, but there is opportunity for inquiry whether it was not substantially obeyed. The evidence is not in conflict in any important respect, and is to the following effect: An entire board of election officials--five judges and two clerks--had been regularly appointed; but on the morning of the election one of the judges and one of the clerks failed to appear, and a bystander was called in to take the place, and who did take the place, of the absent judge. At about the same time one Frank Madura, who had been appointed as one of the judges, moved that T. T. O'Connor, who had been appointed as one of the clerks, act as “chairman and judge” of the election. Some one suggested that it would be more proper, or at least sufficient, to elect him simply as chairman; and in some way--it is not quite clear how--the motion was put and adopted, according to the weight of the testimony, in the form in which it was first made. Madura remained with the board, taking an oath of office, performing the functions of clerk, and subscribing the returns in that character. O'Connor likewise subscribed the returns as clerk, and late in the day took oath of office as such; but he also served throughout the day in the capacity of judge, performing in addition some of the duties of clerk. Another bystander, named Mader, was called in, evidently to take the place of the absent clerk. He does not appear to have been specially assigned to any duties, but he took an oath of office as judge, and was described as such in the records and returns of the election. O'Connor administered the oath of office to his colleagues, and described himself in the jurat to each certificate as judge. It is the theory of counsel for the incumbent that the effect of the transaction was such that Madura and O'Connor became transposed--the former becoming clerk, and the latter judge--and that Mader, who was called to take the place of the absent clerk, in fact did so, notwithstanding he was sworn as judge, but that O'Connor performed some or all of his duties. O'Connor was one of the persons who indorsed his name upon all the ballots, and for this reason alone the contestant asks to have the entire vote of the precinct thrown out.

At the threshold of such a discussion as this the courts are met by two propositions, neither of which can be ignored or evaded. One is the constitutional enactment (section 22, art. 1). “All elections shall be free, and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise;” and the other, inherent in the idea of representative government, is that the free and uncorrupted will of the voter shall be given effect--in other words, that there shall be a “free ballot and a fair count.” These principles pervade and dominate the whole field of inquiry, and affect the decision of every litigated question. All statutes and parts of statutes irreconcilably in conflict with or derogatory to either of them are nugatory, but none is presumed to have been intended so to be. The object of the so-called Australian election laws is not, as some judicial decisions seem to indicate, to limit or obstruct the free exercise of the elective franchise, or to restrict the free expression of the will of the voters, but to promote both these things by removing opportunities for imposition, intimidation, and corruption; and, being remedial in their nature, they are to be liberally construed for the accomplishment of the latter end, and no other. In consideration of the circumstances, the district court decided, by Judges Day and Redick--Judge Sears contra--the contest being had before the three, that O'Connor was an ostensible and de facto, if not a de jure, judge of the election, and that his signature upon the ballots was regular. We think the ruling was right. It is in evidence by several of the voters that they supposed him to be such, and there was nothing to indicate the contrary to any of them, and there is no evidence that any of them suspected the contrary. To hold otherwise would be to put by judicial construction an insuperable obstacle between the voters and the polls. It would be to require the electors, at their peril, to make inquiry, and decide correctly and without deliberation, a question upon which three district judges were unable to agree after hearing elaborate arguments at the end of 40 consecutive days of investigation, and about which the members of this court may finally differ. If the statute attempts the imposition of such an obligation, it is unquestionably void. We do not think that it does so. Section 146 of the statute (Comp. St. 1903) prescribes, comprehensively and in detail, the conduct of the voter while at the polling place. Among other regulations is the following: “He shall receive from a judge of the election board a ballot, upon the back of which two judges of the board shall first write their names in ink. * * * He shall then fold the ballot so as to conceal the names and marks thereon, and to expose the names of the judges of the election board upon the back thereof and shall without delay” deliver the same to a judge of the election, who shall verify the signatures upon the back thereof, and deposit it in the ballot box. The voters strictly and literally complied with this section. They verified their ballots and the indorsements upon them as well as they were able to do “at a glance,” to use the phrase of former decisions of this and other courts, and, having folded them as directed, handed them to a sworn official for further verification and deposit. If after all this they can be deprived of their votes because one member of the election board, whose name is indorsed on the ballots, was a clerk, instead of a judge, the validity and result of elections would in all cases be in the discretion of the boards.

The contestant demands that the whole vote of the Second Precinct of the Fourth Ward in South Omaha shall be thrown out because of the following facts found by the court, which do not appear to be in dispute: During the election hours some of the election officials were under the influence of liquor, but not sufficiently so to incapacitate them from the performance of their duties, but some of them were so incapacitated during the canvass. Two of the election board were absent at one time during election hours. There was whisky in a room adjacent to, and opening off from, the polling place. Voters were assisted by election officials without having the oath of disability administered to them, and ballots prepared by such assistance were deposited and counted. Election officers did not make any effort to prevent bystanders from going behind the guard rail, and a police officer on two occasions removed intruders from that place. Strangers assisted the judges and clerks of election in the counting and canvass of the votes after the polls were closed, and it was found generally, without other specification, that some of the election officers were guilty of malconduct, but that their incapacitation arose in part from misunderstanding of official duty, and finally “the court finds that the ballots deposited with the county clerk of Douglas county, Nebraska, by the election officers of said Second Precinct of the Fourth Ward in the city of South Omaha, were the identical ballots cast at said election by the persons voting at said election, and that said ballots as returned by said judges of election and deposited with the county clerk of said county were when deposited with said county clerk in the same condition, in all respects, as when voted by the several electors and deposited in the ballot box at and during said election. The court further finds there should be counted for the contestant, William W. Bingham, and for the incumbent, Frank A. Broadwell, in said Second Precinct of the Fourth Ward of the city of South Omaha, the number of votes as provided in the stipulation of parties filed in this cause, to wit: Contestant, Wm....