Fitzmaurice v. Willis

• Decision Date: 03 June 1910
• Citation: 20 N.D. 372,127 N.W. 95
• Parties: FITZMAURICE v. WILLIS et al., COUNTY COM'RS.
• Court: North Dakota Supreme Court

20 N.D. 372

127 N.W. 95

FITZMAURICE

v.WILLIS et al., COUNTY COM'RS.

Supreme Court of North Dakota.

June 3, 1910.

Syllabus by the Court.

That part of section 21, c. 109, Laws 1907, providing that the list of names of those voting at the primary election shall take the place of the first registration of the voters now required, and that notice only shall be given of the date of the second day of registration, is an attempt to amend the law providing for the registration of electors, and is in conflict with section 61 of the state Constitution, which provides that no bill shall embrace more than one subject which shall be expressed in its title, and is void.

The title to chapter 109, Laws of 1907, is “An act to provide for the selection of candidates for election by popular vote and relating to their nomination and the perpetuation of political parties.” Such title in no manner expresses the substance of the attempted amendment to the registration law, and such amendment is not germane to the subject expressed in the title, hence the act in question embraces more than one subject.

The provision of the general registration law which fixes the first day of registration as the Tuesday two weeks preceding a general election or any city election remains in full force and effect.

Electors are not entitled to vote on the question of dividing a county and creating a new county, submitted at a general election, unless their names are contained on the registry list required in cities of 800 inhabitants or more, without furnishing the affidavit prescribed as a substitute for registration.

The term “general election,” found in the registration law, was there used to identify and designate the whole election held on the Tuesday after the first Monday in November in even numbered years.

The legislative assembly may prescribe reasonable regulations to prevent fraud, preserve order, and insure a fair election, and to that end may prescribe the method by which the qualifications of those offering their votes as electors may be proved, and prohibit the reception of votes unless the requisite proof is made.

The prohibition contained in section 738, Rev. Codes 1905, reading, “No vote shall be received at any election in this state if the name of the voter offering such vote is not on the registration list, unless such person shall furnish to the judges of the election his affidavit stating that he is a resident of such precinct, giving his place of residence,” etc., is within the power delegated to the Legislative Assembly to prescribe reasonable regulations for making proof of the qualifications of those offering to vote at an election.

The prohibition contained in section 738, Rev. Codes 1905, reading, “No vote shall be received at any election in this state if the name of the voter offering such vote is not on the registration list, unless such person shall furnish to the judges of the election his affidavit stating that he is a resident of such precinct, giving his place of residence,” etc., is an express prohibition and is mandatory, and votes received in violation thereof are invalid and cannot be counted.

At the general election held in 1908 the question of creating the county of Renville from a portion of Ward county was submitted to the voters of Ward county, and a large number of persons voted thereon in the city of Kenmare without being registered or making proof on the day of election of their qualifications as electors as required by section 738, Rev. Codes 1905, and their votes were received and counted by the canvassing board.

Held, in a contest over the result of the election on such question, that the votes of all persons so voting must be rejected.

The prime purpose of the registration law is to prevent the perpetration of frauds in elections, and it must be construed in the light of such object. The object of the meeting of the board of registration on the dates fixed by statute preceding each general election is to provide for the preparation of the registration list, which is the culmination of the proceedings of the board of registration, without which their meetings and acts would be futile, as well as all other provisions of the registration statute.

Held, under all ordinary circumstances, the presence and use of such a list on the day of election in cities coming under the terms of the registration law is mandatory, and that all votes received in the absence of such list, and without being accompanied by the affidavit required of nonregistered voters, must be rejected.

Section 2334, Rev. Codes 1905, providing that no refusal or neglect on the part of any official to perform his rightful duty in connection with an election on the division of counties shall in any wise affect the validity of such election, applies to the minor details and irregularities of such officers, and the conduct of the election, and not to the mandatory requirements of the registration and election statutes, and in case no registry list is present or used at the polls, the duty is upon the persons seeking to vote to furnish the statutory affidavits, and, failing to do so, their votes should neither be received nor counted.

Appeal from District Court, Ward County; Templeton, Special Judge.

Action by E. S. Fitzmaurice against C. C. Willis and others, County Commissioners of Ward County, to contest an election. Judgment for contestees, and contestant appeals. Reversed, with directions.

George L. Ryerson and George A. Bangs, for appellant. Gray & Gray, P. M. Clark, L. F. Clausen, and Scott Rex (Engerud, Holt & Frame, of counsel), for respondents.

SPALDING, J.

This is an appeal from a judgment of the district court of Ward county holding that the proposition submitted in that county at the last general election for the formation of the new county of Renville from a portion of Ward county failed to carry. Judgment was entered in a contest proceeding held as provided by section 693, Rev. Codes 1905. The facts, so far as necessary to an understanding of the questions involved, are that the question of creating the new county of Renville from a portion of Ward county was submitted at the general election in 1908, and the vote as returned showed 3,744 for the creation of the new county and 4,275 against it. The judgment of the district court cut down the majority to about 477. The contention on this appeal arises over the vote of the three wards comprising the city of Kenmare, it being urged by the contestant that none of the votes cast in that city should be counted. If this be true, a majority in favor of the creation of the new county results. At the general election in 1906, 161 votes were cast in Kenmare. At the primary election held in June, 1908, the total number of votes cast was 207. Under the provisions of the Code relating to registration, the vote at the 1906 general election brought Kenmare within the terms of the law requiring a registration of voters. At the general election in 1908, on the question of the division and the formation of the new county, there were cast in the three precincts of the city 625 votes against the new county and 2 in favor of it. This number was reduced by the recount in the district court. The primary election was held in June, 1908, but the list of names of those who voted thereat was not in the possession of or used by the election officers at the general election in 1908, nor was any list purporting to be a registry list used. No meeting was held to correct registry lists, as required by the general law regarding registration, and none of the voters furnished affidavits showing their qualifications as electors before voting at the general election.

1. Section 21, c. 109, Laws 1907, which chapter is known as the primary election law, requires the clerks of election to keep a list of all persons voting at such election, in duplicate, one of which remains a part of the record of the primary election, and the other is required to be delivered to the board of registration within 30 days after the election, and reads: “The poll list so kept at the primary election and delivered to the boards of registration shall take the place of the first registration of the voters now required and notice only shall be given of the date of the second day of registration which shall be held and conducted as now provided and no other shall be required to vote at the general election following.” The registration law, aside from this provision, as contained in article 16 of chapter 8 of the Political Code, commencing at section 732, Rev. Codes 1905, requires the persons authorized to act as judges of election in villages, cities, and wards coming under the provisions of the registration law, who with the inspector of election constitute the board of registration, to meet on the Tuesday two weeks preceding any general election, or any city election, and make a list, in the manner prescribed of all persons qualified to vote at the ensuing election in such precinct, such list, when completed, to be known as the registry of the electors of such precinct. It is required that such board shall complete, as far as practicable, such registry list on the day of such meeting, certify the same in the manner prescribed, and file it with the board, and that it shall be kept by one of the judges or the inspector by whom it shall be carefully preserved for subsequent use. Another copy of the list is required to be posted in a public or conspicuous place at or near the place where the next preceding election in such precinct was held, and to be accessible to any elector desiring to examine it or make copies thereof. Such board is required to again meet on the Tuesday next preceding such election for the purpose of revising, correcting, and completing such list.

Section 738 reads as follows: “After such list shall have been fully completed such board shall within two days cause two copies of the same to be made each of...