McGrane v. County of Nez Perce

Decision Date01 December 1910
Citation18 Idaho 714,112 P. 312
PartiesJAMES B. MCGRANE, Appellant, v. COUNTY OF NEZ PERCE, Respondent
CourtIdaho Supreme Court

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by plaintiff to contest a local option election held in Nez Perce county. Judgment for the defendant and plaintiff appealed. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

Chas L. McDonald, and Eugene A. Cox, for Appellant.

"All provisions of the general election laws of the state of Idaho not in conflict with the terms of the local option statute are applicable to all elections held thereunder." (Gillesby v. County Commissioners, 17 Idaho 586, 107 P. 71.)

The above citation settled two important propositions relative to elections in this state. In the first place, the constitution has guaranteed, and the legislature, to make such guaranty effective, has enacted laws that give to every elector in the state the assurance that when he approaches the polls to declare his choice for men or measures, he does so knowing the action he takes cannot, and will not, ever be disclosed and that the absolute secrecy guaranteed relieves him from preceding intimidation or subsequent persecution.

Secondly the idea of secrecy of the ballot is so essential to the purity of elections and their freedom from bribery, corruption and frauds, that not even the elector himself has a right to disregard it, and if he desires his vote counted, he must so prepare it that his choice cannot at the time of balloting nor subsequently be identified. (Wigmore's Australian Ballot System, 2d ed., pp. 50, 53.)

Numbering the ballots destroys their secrecy. (Brisbin v. Cleary, 26 Minn. 107, 1 N.W. 825; Ritchie v. Richards, 14 Utah 345, 47 P. 670; Cooley's Const. Lim., 5th ed., 762; McCrary, Elections, sec. 453; Paine, Elections, sec. 535; People ex rel. Smith v. Pease, 27 N.Y. 45, 84 Am. Dec. 242; Williams v. Stein, 38 Ind. 89, 10 Am. Rep. 97.)

Statutes providing for a secret ballot are mandatory, and their terms must be complied with. (McCrary on Elections, sec. 226; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; Fields v. Osborne, 60 Conn. 544, 21 A. 1070, 12 L. R. A. 551; Slaymaker v. Phillips, 5 Wyo. 453, 42 P. 1049, 47 L. R. A. 842; State v. Connor, 86 Tex. 133, 23 S.W. 1103; Atty. Gen. v. McQuade, 94 Mich. 439, 53 N.W. 944; Ex parte Riggs, 52 S.C. 298, 29 S.E. 645; Clarke v. Hardison, 40 Tex. Civ. App. 611, 90 S.W. 342; Brigance v. Harlock, 44 Tex. Civ. App. 277, 97 S.W. 1060; Talcott v. Philbrick, 59 Conn. 472, 20 A. 436, 10 L. R. A. 150.)

In construing a statute of this character the court must take into consideration what its purpose is, the aim it seeks to accomplish, and generally all the other statutes germane to, and bearing on, the subject. (Taylor v. Bleakley (Kan.), 49 Am. St. 233, note p. 243; 15 Cyc. 357, note p. 98.)

While it does not appear in the complaint affirmatively that the large number who refrained from voting at this election would have done so had there been a secret ballot, yet in view of the fact that no secret ballot could be had and this number did not vote, the court could not tell that they did not refrain from voting for this reason. (Guernsey v. McHaley, 52 Ore. 555, 98 P. 158; State ex rel. Birchmore v. Board of Canvassers, 78 S.C. 461, 59 S.E. 145, 14 L. R. A., N. S., 850, 13 Ann. Cas. 1133.)

Mandatory provisions of the statute violated by election officers render ballot illegal, notwithstanding elector not at fault. (Kelly v. Adams, 183 Ill. 193, 55 N.E. 837; Caldwell v. McElvain, 184 Ill. 552, 56 N.E. 1012; Orr v. Bailey, 59 Neb. 128, 80 N.E. 495; Mauck v. Brown, 59 Neb. 382, 81 N.W. 313; Kelso v. Wright, 110 Iowa 560, 81 N.W. 805; Conaty v. Gardner, 75 Conn. 48, 52 A. 416; Griffin v. Tucker (Tex. Civ. App.), 119 S.W. 338; Newhouse v. Alexander (Okl.), 110 P. 1121.)

D. C. McDougall, Atty. Gen., O. M. Van Duyn, J. H. Peterson, and D. E. Hodge, for Respondent.

An examination of the complaint herein shows that there is no allegation whatsoever of any malconduct, fraud or corruption of any of the parties named in subd. 1, sec. 5026, Rev. Codes. In fact, there is no allegation of any malconduct upon the part of any person. So this contest cannot be brought under said subdivision of said section. (Farnham v. Boland, 134 Cal. 151, 66 P. 200; Freshour v. Howard, 142 Cal. 501, 77 P. 1101.)

Even if contestant may contest upon the ground that certain parties were deterred and intimidated from voting, it would be necessary to allege and prove who the parties were and that they would have voted "wet" or differently from the declared result. (15 Cyc. 405, 406; Cole v. McClendon, 109 Ga. 183, 34 S.E. 384; Lowrey v. Cheatham, 131 Ga. 320, 62 S.E. 226.)

All acts violating the secrecy of the ballot do not invalidate the election. Acts for which the voter is not responsible do not affect the election, even though the secrecy of the ballot might be violated. (Farnham v. Boland, supra; Freshour v. Howard, supra; Perkins v. Bertrand, 192 Ill. 58, 85 Am. St. 315, 61 N.E. 405; Peabody v. Burch, 75 Kan. 543, 89 P. 1016, 12 Ann. Cas. 719; Pennington v. Hare, 60 Minn. 146, 62 N.W. 116; Carwile v. Jones, 38 Mont. 590, 101 P. 153; Lindstrom v. Bd. of Commrs., 94 Mich. 467, 54 N.W. 280, 19 L. R. A. 171.)

"If identifying marks are placed on a ballot without the knowledge or consent of the voter, it does not render the ballot void, nor prevent it from being counted; but if it is done by the voter in preparing his ballot, it is a violation of law, and the ballot should not be counted." (Whittam v. Zahorik, 91 Iowa 23, 51 Am. St. 317, 59 N.W. 57; People v. Board of Supervisors, 135 N.Y. 522, 32 N.E. 242; State v. Sadler, 25 Nev. 131, 83 Am. St. 573, 58 P. 284, 59 P. 546, 63 P. 128; State v. Gay, 59 Minn. 6, 50 Am. St. 389, 60 N.W. 676; Hannah v. Green, 143 Cal. 19, 76 P. 708; Atty. Gen. v. McQuade, 94 Mich. 439, 53 N.W. 944; Town of Eufaula v. Gibson, 22 Okla. 507, 98 P. 565; Winn v. Blackman, 229 Ill. 198, 120 Am. St. 237, 82 N.E. 215; In re Town of Groton, 118 N.Y.S. 417, 63 Misc. 370; People v. Wood, 148 N.Y. 142, 42 N.E. 536; Baker v. Scott, 4 Idaho 596, 43 P. 76; State v. Fransham, 19 Mont. 273, 48 P. 1.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

AILSHIE, J.

On the 15th of January, 1909, the commissioners of Nez Perce county made and entered an order calling an election in the county of Nez Perce to determine whether or not intoxicating liquors should be sold as a beverage in that county. The election was called to be held on the 9th day of March following. Ballots printed under the direction of the county auditor and by him distributed to the election officers of the several precincts of the county were in the following form:

[SEE FORM IN ORIGINAL]

This ballot complied with the requirements of law with the exception that it should not have been numbered. The statute, sec. 405, Rev. Codes, provides for numbering the stub but does not authorize the numbering of the ballot. According to the complaint, the fact that the ballots had been numbered was not discovered by the electors generally or by anyone except the auditor and printer, and possibly some of the election officers, prior to the opening of the polls on election day. The election was held and resulted in 3,444 votes being cast in favor of the proposition submitted and 2,612 votes against it. The record shows that 10,388 qualified electors were registered and were entitled to vote at this election, and that the total number of votes cast was 6,050.

It is alleged that this ballot did not afford the plaintiff and the electors generally of Nez Perce county the right of a secret ballot, and that it was in violation of sec. 1, art. 6, of the state constitution, which provides: "All elections by the people must be by ballot. An absolutely secret ballot is hereby guaranteed, and it shall be the duty of the legislature to enact such laws as shall carry this section into effect." It is also alleged that since these ballots were numbered consecutively from one to somewhere in excess of 15,000 and were distributed in consecutive order, it was possible for the election officers and others to identify the ballot cast by any elector, and thereby destroyed the secrecy of the ballot guaranteed to the elector by the constitution. It is also alleged that this means of identification resulted in intimidating some voters so that they refused to vote at all, while others were not able to vote their deliberate convictions for fear of their ballots being identified and thereby exposing them to censure and obloquy from those who voted differently or who were advocating the opposite side of the question. It is further alleged that these numbers constituted identifying and distinguishing marks on the ballots in violation of the statute, sec. 408, Rev. Codes.

The defendant demurred to the complaint, and the demurrer was sustained and judgment was thereupon entered against the plaintiff, from which this appeal has been prosecuted.

Now, in the first place, the constitution of this state, sec. 1, art 6, supra, guarantees to the electors "an absolutely secret ballot," and counsel argue that the legislature could not constitutionally enact an election law which would provide for and authorize the numbering of ballots, and that if the legislature could not authorize such a ballot it must necessarily follow that election officers, exercising the political power of the state, cannot furnish the electors with such ballots, and thereby deprive them of the absolute secrecy of their ballots. This proposition requires a brief analysis to detect whether it be sound or faulty. In the outset, it is perfectly...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT