Lane v. Bailey

• Decision Date: 11 February 1904
• Citation: 75 P. 191,29 Mont. 548
• Parties: LANE v. BAILEY.
• Court: Montana Supreme Court

75 P. 191

29 Mont. 548

LANE v. BAILEY.

Supreme Court of Montana

February 11, 1904

Commissioners' Opinion. Appeal from District Court, Rosebud County; C. H Loud, Judge.

Election contest by Clarence R. Lane against Charles W. Bailey. Judgment for plaintiff, and defendant appeals. Affirmed.

E. J Dierks, F. V. H. Collins, and Sydney Sanner, for appellant.

T. J Porter and J. C. Lyndes, for respondent.

CALLAWAY C.

Election contest. Clarence R. Lane, an elector of Rosebud county contests the right of Charles W. Bailey to hold the office of county clerk. Bailey and one Roderick McRae were opposing candidates for the office, Bailey being the Democratic, and McRae the Republican, candidate. The canvassing board found that Bailey had received a majority of the votes cast for the office of county clerk, and declared him elected. As ground for contest, Lane alleged that a number of persons, exceeding contestee's majority, who were not entitled to vote in said county, had voted for contestee; that they were not bona fide residents thereof, but had been brought into the county 30 days or thereabouts prior to the election, pursuant to a conspiracy entered into by James S. Hopkins, Fred Ramsey, William McCarthy, William J. Nix, and others, to colonize Rosebud county by illegally importing and bringing into the county large numbers of persons shortly before the election, and causing them to be registered and to vote the Democratic ticket, and for said Charles W. Bailey; which conspiracy, according to the allegations of the complaint, was accordingly carried out. The complaint, or statement of contest, contains this allegation: "That said persons so illegally brought into said county of Rosebud were induced by the aforesaid parties to go into said county under a promise of unusual and exorbitant wages being paid them for their services as laborers, and on the further promise and representation that they could return to their various homes without expense as soon as the election was over." To the complaint the contestee filed an answer which, in addition to a general denial, alleged that Bailey was in fact elected over McRae by a majority of 82 legal votes, for the reason that at Hathaway precinct 18 persons, and at Rosebud precinct 49 persons, had illegally registered without ever having taken or subscribed, or offered to take or subscribe, the oath prescribed by section 1209 of the Political Code, as amended. This the contestant denied in his reply, and further alleged that said persons were in fact duly qualified voters in all respects, and that if they did not take the oath it was the fault of the registry agent, and not the fault of the voters. The pleadings are of great length, and only the gist of the issues is given here. Trial was to the court, sitting without a jury. The court found that 24 illegal votes had been cast and counted for the contestee, deducted the same from the number of votes received by him, and declared McRae elected, and entitled to the office of county clerk. From this judgment the contestee has appealed.

1. Counsel for contestee urge that the complaint is not verified as required by the statute, which prescribes that the statement must be verified by the affidavit of the contesting party that the matters and things therein contained are true. Code Civ. Proc. § 2014. The verification attached was in the usual form required by section 731 of the same Code when a party to an action verifies a pleading. This was a substantial compliance with section 2014, supra, and is sufficient. Kirk v. Rhoads, 46 Cal. 398.

2. Contestee insists that the 67 men named in his answer were not qualified voters, because they failed to take the oath set forth in section 1209 of the Political Code, as amended. Sess. Laws 1897, p. 118. The proof shows that the electors presented themselves before the registry agent for the purpose of complying with the law which requires a voter to be registered. They gave the agent all the information he asked concerning their qualifications as voters, and he entered their names as such upon the official register. According to his testimony, he did not think it was necessary for them to take the oath. Their names regularly appeared upon the official register, the copies thereof, and the check lists, as well as upon the lists posted in the precincts and in the office of the county clerk. The fact that their names appeared in the check lists and copies of the official register was prima facie evidence of their right to vote. Pol. Code, § 1234, as amended; Sess. Laws 1897, p. 123. That the electors were registered without taking the oath was not their fault. That a registry agent neglects his duty should not deprive an elector of the right to exercise his franchise. If the elector may be deprived of his right to vote in this manner, an unprincipled registry agent may change the political status of a precinct at will, and by concerted action on the part of a number of such the political complexion of a county may be easily changed, and the popular will effectually thwarted. If the elective franchise may be thus tampered with, incalculable abuses will creep into the state. The purpose of the statute is to prevent any but legal electors from voting. It demands good faith. It is not intended to prevent those who are qualified to vote from doing so. Before the elector is entitled to be registered he may be compelled to take the oath prescribed in section 1209, supra--the statute contemplates that he shall be compelled to take it. If he fails to take the oath through the fault of the registry agent, and is challenged on that ground before that officer closes his book, he may qualify on election day. This is clearly one of the purposes of sections 1213 and 1214 of the Political Code, as amended. Session Laws 1897, p. 121 et seq. Section 1213 provides that, on the next day succeeding that on which the registration of electors shall be closed, the registry agents must with all reasonable expedition, and within four days, prepare and cause to be written or printed a full, complete, and true list of all the names registered by them and then remaining on the official register for each election, precinct, alphabetically arranged, commencing with the surname of each, and then must write or print such reasonable number of copies of each registration district list as they may deem necessary showing on one sheet, but under separate headings in such list, the registered voters in each precinct in the district, and post copies of the same in at least five public and conspicuous places within each and every district to which they apply, and shall also furnish one, attested by his oath as true and correct, to the county clerk. Section 1214 provides that: "The registry agents must give notice in said lists that they will receive objections to the right to vote of any person so registered until six o'clock p. m. on the Saturday previous to the day of the election; and also requesting all persons whose names may be erroneously entered in said lists or erroneously cancelled upon the 'Official Register' to appear at the proper registry office and have such error corrected. Such objections to the right to vote of any person registered must be made only by a qualified elector, in writing duly verified setting forth the grounds of objection or disqualification. The registry agent before whom any such affidavits are made must carefully preserve the same and deliver them, with the 'Check List' and other papers required by this chapter, to be delivered to the judges of election, as is in this chapter provided and he must write distinctly opposite to the name of any person to whose qualifications as an elector objections may be thus made, the words 'to be challenged' or words to that effect. It is the duty of the judges of election, if on election day such person who has been objected to applies to vote, to test, under oath his qualifications and if he is found to be disqualified, from any cause under the law, or if he refuses to take an oath as to his qualifications he must not be permitted to vote. ***" McCrary, in his work on Elections, says: "It is a rule well-grounded in justice and reason, well established by authority and precedent, that the voter shall not be deprived of his rights as an elector, either by the fraud or mistake of the election officer, if it is possible to prevent it." 3d Ed. § 196. Section 2 of article 6 of the North Carolina Constitution provides that: "It shall be the duty of the General Assembly to provide from time to time for the registration of all electors, and no person shall be allowed to vote without registration, or to register without first taking an oath to support the Constitution." The Supreme Court of that state says: "This section of the Constitution provides that the 'General Assembly' shall pass registration laws, and that no one shall be entitled to register without taking an oath, and that no one shall vote who is not registered. This provision of the Constitution, that no one shall be entitled to register without taking an oath to support the Constitution of the state and of the United States, is directed to the registrars. It must be to them and to them alone, as is said by this court in Southerland v. Goldsboro, 96 N.C. 49 . But if the registrar, through inadvertence, registers a qualified voter, who is entitled to register and vote, without administering the prescribed oath to him, shall he, for this negligence of the officer, be deprived of his right to vote, and thereby the will of the majority defeated? And if this omission was not through inadvertence, but with a view to entrap the voter and thus defraud him out of his vote, it is much more the reason why he should not be, and that...