Kellogg v. Hickman

• Decision Date: 15 February 1889
• Citation: 12 Colo. 256,21 P. 325
• Parties: KELLOGG v. HICKMAN.
• Court: Colorado Supreme Court

21 P. 325

12 Colo. 256

KELLOGG v. HICKMAN.

Supreme Court of Colorado

February 15, 1889

Commissioners' decision. Appeal from Bent county court.

Henry Kellogg appeals from the decision of the county court declaring his competitor, T. J. Hickman, elected county treasurer of said county.the box, and again locked and sealed it. No fraud was intended or perpetrated. Held, that the irregularity did not vitiate the returns.

J. C. Coad, Jas. M. John, E. O. Wolcott and J. F. Vaile, for appellant.

Patterson & Thomas, Way & Page, and J. F Bostwick, for appellee.

STALLCUP C.

The appellant was declared elected to the office of county treasurer of said county of Bent, at the election held November 8, 1887, by a majority of eight votes, over his opponent, the said appellee. The contestor alleged that illegal votes had been received and counted against him; also that votes had been illegally received and counted against him, to his detriment. And the contestee alleged that illegal votes had been received and counted against him. The case was tried by the county judge of the said county under the provisions of the act approved April 10, 1885. From the votes received and counted for appellant, who was the contestee, deductions were made by the said county judge as follows: From the vote of Sheridan Lake precinct, 48 votes, on account of color and width of ballot, 10 of the same being held illegal on the additional ground of insufficient residence of the voters in the state; from the vote of Wilde precinct, 30 votes, on account of irregularities of the judges of election there, 9 of the same being held illegal, on the additional ground of insufficient residence of the voters in the state and precinct; and from other precincts, three votes on the ground of insufficient residence of the voters,--in all 81 votes, deducted from those counted for appellant; and from the votes received and counted for appellee, 8 votes were deducted, on the ground of insufficient residence and other disqualifications of the voters. Whereupon judgment was given for the said appellee from which the case comes here on appeal. It is contended here for appellant that the court erred in all of the said deductions from the count for appellant.

1. Of the 48 votes of Sheridan Lake precinct, it appears that from a mistake in the directions the regular party ticket, by which appellant was named for the office of county treasurer, failed to reach the voting place of that precinct. Whereupon the tickets for said party were there printed on pale yellow paper, 3 4/1 inches wide, containing, along with the other candidates of said party, the name of appellant for said office of county treasurer, this paper being the nearest to the kind prescribed by the statute there obtainable upon which to print the tickets. Forty-eight of these tickets were accordingly voted, received, and counted at this precinct. The good faith of the transaction is not questioned. Section 1199 of our General Statutes provides that when it shall be found, on counting votes, that two or more tickets have been deceitfully folded together, such tickets shall be rejected. Section 1281 provides as follows: 'All ballots shall be written on plain white paper, or printed with black ink, with a space of not less than one-fifth of an inch between each name, on plain, white news printing paper, not more than two and one-half inches, nor less than two and three-eighths inches, wide, without any device or mark by which one ticket may be known or distinguished from another, except the words at the head of the tickets; and it shall be unlawful for any person to print for distribution at the polls, or distribute to any elector or voter, any ballot printed or written contrary to the provisions hereof; but this section shall not be considered to prohibit the erasure, correction, or insertion of any name by pencil or with ink upon the face of the printed ballot.' And section 1282 provides as follows: 'When a ballot, with a certain designated heading, contains printed thereon, in place of another, a name not found on the regular ballot having such heading, such name shall be regarded by the judges as having been placed thereon for the purpose of fraud, and such ballot shall not be counted for the name so found.' By the statute it is unlawful to print or distribute tickets other than the kind prescribed in said section 1281. It is also declared that in the case described in said sections 1199 and 1282, the judges of election shall not count the votes. No other cases are mentioned in which the judges of election are expressly authorized not to count the votes received. There is no claim that any fraud was intended or perpetrated in the premises.

I see no warrant in the statute for deducting these votes from the count. The courts are without authority to declare such penalty against the voter until the legislature shall have declared that the act of voting such ballot shall be unlawful, and that such ballot, if voted by the elector, and received by the judges, shall not be counted and, in the absence of legislation to this effect, the courts may not declare as much. The right to vote under our constitution is a vested constitutional right, with no condition imposed as to the manner of exercising the right, except that the vote be by ballot. That a right so vested and exercised--a vote so offered and received--may be defeated by force of legislative enactment at all, may be doubted. See Daggett v. Hudson, 54 Amer. Rep. 832, and note. However, conceding that an enactment expressly declaring against voting, against counting, or knowingly receiving, ballots other than those prescribed may be sustained, still it seems clear that the exercise of such right by the elector may not be nullified by force of a strained and doubtful construction of an enactment containing no such expressions. Such expressions are found in the enactments on this subject in California, Mississippi, and Texas, and the exclusion of the prohibited ballots in those states, therefore, rests upon such direct expressions. See Reynolds v. Snow, 67 Cal. 492, 8 P. 27; Steele v. Calhoun, 61 Miss. 556; Owens v. State, 64 Tex. 509. The California statute provides that no ticket shall be used at an election, or circulated on the day of election, unless it is of a particular description prescribed, and it further provides that when a ballot, contrary to such description, shall be found in any ballot-box, it must be with all its contents rejected. The enactment of 1880 of the state of Mississippi is like ours in this regard, except that it provides that a ticket different from that prescribed shall not be received nor counted. And the enactment of 1879, of the state of Texas, is also similar to our statute in this regard, with the exception that it provides that any ticket not in conformity with the act shall not be counted. I find no case, and I think none can be found, where the deduction of such votes from the count is allowed in the absence of legislative expression against counting or receiving the same. It will be seen that the enactment under consideration does not in terms prohibit the elector from voting a ticket printed on paper different from that prescribed; nor does it declare against the counting or receiving of any such ticket. The parties voting at an election are considered by some courts as parties to a contest of this kind. Hopkins v. Olin, 23 Wis. 319; People v. Pease, 27 N.Y. 45. However this may be, it will be conceded that the rights of the electors voting are necessarily involved in contests of this kind; that their rights in the premises may not be ignored; that, to warrant the courts in depriving them of their votes as a result or penalty for having voted ballots printed upon paper different from that prescribed, there must be legislative expression to that effect. It is contended that it was the intention of the legislature, by the enactment under consideration, to deprive them of their votes when so cast, and that such intention is apparent from the act, notwithstanding the want of expression in this regard, and that such intention should govern, in order to give effect to this provision of the act. It was stated in the oral argument that this section 1281 was taken from the Ohio act upon the same subject. Upon examination of that act, I find that it declares that it shall be unlawful to publish, distribute, or vote a ticket different from the ticket prescribed. The prohibition against the voter, being omitted in the act here, is significant in that it tends to show that the legislature here did not intend to defeat the vote of an honest voter honestly voted, even if his ticket was of different paper from that prescribed, but did intend the provision in this regard for his protection in the premises; that is to say, the legislative intention to be gathered from the language used seems to be that no ballot except the kind prescribed should be printed or furnished to the voter, to the end that his ballot might be secret, and that he might be clear of restraint or imposition of any kind in the exercise of his right of suffrage. Upon a fair consideration of the statute it is not apparent that the legislative intent was to nullify such votes. See Gilleland v. Schuyler, 9 Kan. 587; McCrary, Elect. (3d Ed.) §§ 190-193. Inasmuch as section 1281 is an almost literal rescript of the Ohio statute, it has been suggested that there has been error in transcribing. The Ohio statute declares that 'it shall be unlawful for any person to * * * distribute to any elector, or vote, any ballot printed or written contrary to the provisions hereof.' Section 2948. Section 1281 provides that 'it shall be unlawful for any person to * * * distribute to any elector or...