Elwell v. Comstock

• Decision Date: 16 November 1906
• Citation: 99 Minn. 261,109 N.W. 698
• Parties: ELWELL v. COMSTOCK.
• Court: Minnesota Supreme Court

99 Minn. 261

109 N.W. 698

ELWELL

v.COMSTOCK.

Supreme Court of Minnesota.

Nov. 16, 1906.

Appeal from District Court, Hennepin County; David F. Simpson, Judge.

Election contest between James T. Elwell and Edgar F. Comstock. Judgment for contestant, and contestee appeals. Affirmed.

Syllabus by the Court

Section 6 of article 7 of the Constitution, providing that all elections, except for town officers, shall be by ballot, was intended to secure to the elector the privilege of exercising his right of franchise secretly and effectively, in view of which it is held that any method of conducting elections, sanctioned by legislative authority, which will secure and effect that right, is a substantial compliance with the constitutional mandate.

Chapter 267, p. 400, Laws 1905, providing for and authorizing, under certain conditions and restrictions, the use of voting machines at elections in this state, does not contravene the provision of the Constitution that all elections shall be by ballot.

The Legislature may delegate the power to determine some fact upon which a statute makes its own action depend.

The power delegated to the voting machine commission created by chapter 267, p. 400, Laws 1905, to determine the efficiency of the voting machine thereby authorized to be used at elections in this state, is neither legislative nor judicial, but administrative, in character.

A ballot cast at an election, which is so marked by the elector that his identity is thereby disclosed to any person other than the voter, is void.

When such a mark of identification appears upon a ballot, the elector who cast it cannot be heard to say that he did not intend the mark for that purpose.

Assignments of error respecting the action of the trial court in counting and refusing to count certain ballots considered and disposed of. Welch, Hayne & Hubachek and Hale & Montgomery, for appellant.

George S. Grimes and John H. Steele, for respondent.

BROWN, J.

James T. Elwell and Edgar F. Comstock were rival candidates for the Republican nomination for senator of the twenty-ninth senatorial district at the primary election held on the 18th day of September, 1906, and the proper canvassing board duly declared Comstock the nominee, issuing to him the usual certificate of nomination. Whereupon Elwell commenced this contest, under the provisions of section 203, Rev. Laws 1905, basing the same on several grounds, claiming that a majority of the legal votes at said election were cast for him. Issue was joined, and the matter came on for hearing before the court below, where it was found as a conclusion of fact that contestant had received a majority of one over contestee, and judgment was ordered declaring him the nominee. Contestee appealed.

Several questions are presented for consideration, which we dispose of in the order of their presentation on the argument. The city council of the city of Minneapolis, in which the senatorial district in question is located, had, under the provisions of chapter 267, p. 400, Laws 1905, prior to the election in question, provided for and authorized the use in certain of the precincts of this senatorial district of the Dean ballot machine, a mechanical contrivance for voting without the use of paper ballots, and such machines were used in two of the precincts of that district. A majority of the votes so cast were in favor of contestant, which, if declared illegal, would throw the nomination to contestee. It is contended by counsel for contestee that the use of these machines was illegal, and the votes cast thereon should be excluded from the canvass. This contention is based upon the claim that chapter 267, p. 400, Laws 1905, providing for and authorizing the use of the same, is unconstitutional and void. It is urged that the statute is void for the reasons: (1) That the subject-matter thereof is not sufficiently expressed in the title; (2) that it violates section 6, art. 7, of the Constitution, which provides that all elections shall be by ballot, except for town officers; and (3) that it violates section 1 of article 3 of the Constitution, in that it delegates legislative and judicial powers to the voting machine commission therein created.

1. The act is entitled ‘An act to authorize the use of voting machines at elections, and to authorize cities, villages and towns to issue bonds to defray the cost of the purchase thereof, and to repeal existing laws relating to voting machines.’ Under this title the Legislature enacted generally for the purchase and use of voting machines under prescribed conditions and restrictions, and by section 3 created the ‘Minnesota voting machine commission,’ consisting of three members, including the Attorney General of the state. The powers and duties of the commission are defined, and upon the result of its investigation and determination of the question whether a particular voting machine may be used effectually to express the will of the voters rests the authority of the municipality, through its legislative body, to sanction and provide for its use. The point made against the sufficiency of the title of the act is that the creation of this commission is not referred to or in any way expressed thereby, and consequently the act must fall. The objection is not sound. The object of the statute was to provide for the use of voting machines in this state, presumably as an experiment, and the creation of the commission to inspect and determine the efficiency of machines to do the work contemplated is clearly germane and within the comprehensive scope of the title to the act. The provisions for the commission were in no proper sense foreign or dissimilar to the principal subject of the legislation, but, on the contrary, are appropriately adapted to it. Within our decisions the title is sufficient. Supervisors of Ramsey County v. Heenan, 2 Minn. 330 (Gil. 281); State v. Cassidy, 22 Minn. 312, 21 Am. Rep. 765;State ex rel. v. Board of Control, 85 Minn. 165, 88 N. W. 533. See, also, Fleckten v. Lamberton, 69 Minn. 187, 72 N. W. 65. In that case it was contended that the act of the Legislature of 1893, providing for the erection and construction of a new State Capitol (chapter 2, p. 6, Laws 1893), was unconstitutional for the reason, among others, that the subject-matter thereof was not sufficiently expressed in the title. The act was entitled ‘An act to provide a new Capitol for the state of Minnesota.’ Among its numerous provisions, was one creating a capitol commission, with power to purchase or condemn a site, select plans, and erect and construct a new state building. The court held that the provisions for this commission were not foreign to the subject of the act, as expressed in its title, and the statute was upheld. The creation of the commission in that statute, as in the statute here under consideration, was a mere detail of the legislation, and in no way disconnected with or impertinent to the subject-matter expressed in the title.

2. It is next contended that the statute contravenes section 6, art. 7, of the Constitution, which provides that all elections, except for certain town officers, shall be by ballot. This provision of our fundamental law was construed in Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825, to mean a mode of designating an elector's choice of a person for an office by the deposit of a ticket bearing the name of such person in a receptacle provided for the purpose, in such a way as to secure to the elector the privilege of complete and inviolable secrecy in regard to the person voted for. ‘The privilege of secrecy,’ said the court, ‘may properly be regarded as the distinguishing feature of ballot voting.’ The voting machine is of recent origin and invention. It was neither known or thought of at the time of the adoption of the Constitution. The framers thereof did not have in mind any such method of conducting elections. What they had in view, and intended to secure, was, as held in the Brisbin Case, the privilege of the citizen to exercise his right of franchise in secret, as distinguished from the yea and nay method. Though the method of voting at the time the Constitution was adopted was, and since has been, by printed ballots or tickets, the Constitution should not be restrained to the strict sense in which, and with reference to which, its language was employed, if its main purpose may be otherwise fully attained. If, by any method substantially in accordance with its spirit, secret and effective exercise of the elective franchise may be accomplished, that method should not be held in violation of the fundamental law merely because not in accord with its letter.

Constitutions are not made for existing conditions only, nor in the view that the state of society will not advance or improve, but for future emergencies and conditions, and their terms and provisions are constantly expanded and enlarged by construction to meet the advancing and improving affairs of men. We cannot do better than to quote on this subject from Chief Justice Parker in Henshaw v. Foster, 26 Mass. 312, a case involving this immediate question. It appears from that case that the Constitution of Massachusetts provided that elections should be by written ballots; that at an election held in that state certain electors tendered their printed ballots, which were rejected as not in conformity with the Constitution. The court held that, though voting by printed ballots was unknown at the time of the adoption of the Constitution (1790), that method came fairly within the scope of the law, and that the printed ballots were improperly rejected by the election officers. In the course of the opinion Justice Parker said. ‘We are to suppose that those who were delegated to the great business of distributing the powers which emanated from the sovereignty of the people, and to the establishment of rules for the perpetual security of the rights of person and property, had the wisdom to...