Fitzmaurice v. Willis

• Decision Date: 03 June 1910
• Court: North Dakota Supreme Court

127 N.W. 95

20 N.D. 372

F. S. FITZMAURICE v. C. C. WILLIS, A. J. DeLance, Ralph Abbott, S. H. Elliott, E. H. Emerson, as the Board of County Commissioners for Ward County, North Dakota

Supreme Court of North Dakota

June 3, 1910

Appeal from the district court of Ward county; Templeton, Special Judge.

Contest on an election held to vote upon the creation of the new county of Renville.

Reversed.

Judgment reversed, and new judgment in favor of the contestant.

Geo. L Reyerson and Geo. A. Bangs, for appellant.

Failure to comply with a registration law invalidates an election. Cooley, Const. Lim. 757; Capen v. Foster, 12 Pick 485, 23 Am. Dec. 632; People ex rel. Foley v Kopplekom, 16 Mich. 342; State ex rel. Doerflinger v. Hilmantel, 21 Wis. 574; State ex rel. Bancroft v. Stumpf, 23 Wis. 630; State v. Butts, 31 Kan. 537, 2 P. 618; Pope v. Williams, 98 Md. 59, 66 L.R.A. 398, 103 Am. St. Rep. 379, 56 A. 543, approved in 193 U.S. 621, 48 L. ed. 817, 24 S.Ct. 573; Falltrick v. Sullivan, 119 Cal. 613, 51 P. 947; Zeiler v. Chapman, 54 Mo. 502; Patterson v. Hanley, 136 Cal. 265, 68 P. 821; State to use of DeBerry v. Nicholson, 102 N.C. 465, 11 Am. St. Rep. 767, 9 S.E. 545; Owensboro v. Hickman, 90 Ky. 629, 10 L.R.A. 224, 14 S.W. 688; Cusick's Election, 136 Pa. 459, 10 L.R.A. 228, 20 A. 574; Moore v. Sharp, 98 Tenn. 491, 41 S.W. 587; 15 Cyc. Law & Proc. p. 302B; McCrary, Elections, 135.

Gray & Gray, P. M. Clark, L. F. Clausen, and Scott Rex, for respondents.

There was a de facto registration. State ex rel. Wood v. Baker, 38 Wis. 83; State ex rel. Hampton v. Waldrop, 104 N.C. 453, 10 S.E. 694; Stinson v. Sweeney, 17 Nev. 309, 30 P. 997; People ex rel. Martin v. Worswick, 142 Cal. 71, 75 P. 663.

The registration law is not mandatory. Johnson v. Grand Forks County, 16 N.D. 363, 125 Am. St. Rep. 662, 113 N.W. 1071; 10 Am. & Eng. Enc. Law, p. 736; Taylor v. Taylor, 10 Minn. 107, Gil. 81; State ex rel. Douglas v. Falk, 89 Minn. 269, 94 N.W. 879; Edson v. Child, 18 Minn. 64, Gil. 43; Kuykendall v. Harker, 89 Ill. 126; Dale v. Irwin, 78 Ill. 170; Perry v. Hackney, 11 N.D. 148, 90 N.W. 483; Cooley, Const. Lim. 7th ed. 928; Horning v. Board of Canvassers, 119 Mich. 51, 77 N.W. 446; Jones v. State, 153 Ind. 440, 55 N.E. 229; Capen v. Foster, 12 Pick. 485, 23 Am. Dec. 632; Byler v. Asher, 47 Ill. 101; Edmonds v. Banbury, 28 Iowa 267, 4 Am. Rep. 177.

The provisions of a registration do not apply to a special election. Seymour v. Tacoma, 6 Wash. 138, 32 P. 1077; Graves v. Seattle, 8 Wash. 248, 35 P. 1079; Bew v. State, 71 Miss. 1, 13 So. 868; Kaigler v. Roberts, 89 Ga. 476, 15 S.E. 542; Stephens v. Albany, 84 Ga. 630, 11 S.E. 150; Thomasville v. Thomasville Electric Light & Gas Co. 122 Ga. 399, 50 S.E. 169, 10 Am. & Eng. Enc. Law, p. 611, note 4, and cases cited; 15 Cyc. Law & Proc. p. 302-c; State ex rel. Manhattan Constr. Co. v. Barnes, 22 Okla. 191, 97 P. 997.

OPINION

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 § 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, chapter 109, Laws of 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 thirty 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, chapter 8, of the Political Code, commencing at § 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 Tuesday next preceding such election for the purpose of revising, correcting, and completing such list.

Section 738 reads as follows: "After such lists shall have been fully completed, such board shall, within two days, cause two copies of the same to be made, each of which shall be certified by it to be a correct list of the qualified electors of the precinct so far as known, which list the judges or inspector shall carefully keep and preserve for use on election day; and at the opening of the polls the judges or inspector shall designate two of their number to check the name of each voter voting in such precinct whose name is on the register. No vote shall be received at any election in this state if the name of the person offering such vote is not on the register, unless such person shall furnish to the judges of election his affidavit, stating therein that he is a resident of such precinct, giving his place of residence and length of time he has resided there, and also prove by the oath of a householder and registered voter of the precinct that he knows such person to be a resident therein, giving his place of residence. Such oath may be administered by the inspector or one of the judges of election, or any other person authorized to administer oaths, but no person shall receive any compensation for administering such oath. Such oath shall be preserved and filed by the judges of election. Any person may be challenged and the same oath required as is now or hereafter may be prescribed by law."

The clerks of the election are required to enter on the poll list kept by them on the day of election the words "not registered" opposite the names of the persons who are not registered, but who vote by the use of the affidavit referred to, and to insert in the poll list the names and residences of such voters.

The provisions of § 21, chapter 109, Laws of 1907, that the 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 required by article 16, chapter 8 of the Political Code, and that notice only shall be given of the date of the second day of registration, and that no other notice shall be required to vote at the general election following, is in conflict with § 61 of the state Constitution, which provides that no bill shall embrace more than one subject which shall be expressed in its title. The title to chapter 109 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." It is quite apparent that this chapter relates, so far as disclosed by the title, only to the nomination of candidates for office. No intimation is contained in the title, or warning...