Montgomery v. Henry

• Decision Date: 21 November 1905
• Citation: 144 Ala. 629,39 So. 507
• Parties: MONTGOMERY v. HENRY.
• Court: Alabama Supreme Court

39 So. 507

144 Ala. 629

MONTGOMERY v. HENRY.

Supreme Court of Alabama

November 21, 1905

Appeal from Probate Court, St. Clair County; W. S. Foreman, Judge.

"To be officially reported."

Election contest by C. C. Montgomery against William E. Henry. From a judgment for contestee, contestant appeals. Affirmed.

Inzer &amp Montgomery, Smith & Herring, and Jas. T. Greene, for appellant.

Goodhue & Blackwood, for appellee.

DENSON J.

At the general election held in November, 1904, C. C. Montgomery and William E. Henry were opposing candidates for the office of tax collector in St. Clair county. When the returns from the various precints in the county were canvassed by the board of supervisors, it was ascertained that Montgomery had received 963 votes and Henry 976 votes, and Henry was declared duly elected to said office. Montgomery then instituted a contest against Henry before the judge of the probate court in said county. The cause was tried by the judge on an agreed statement of facts, judgment was rendered in favor of the contestee, and from that judgment Montgomery prosecuted this appeal.

By the agreed statement of facts it is shown that the election was in all respects fairly held and the result in each precinct was correctly ascertained and properly returned by the inspectors. There is no imputation of fraud or evil practice against any candidate, voter, or election officer. But in four of the precincts the inspectors neglected to number the ballots, and as shown by the agreed statement of facts this irregularity on the part of the inspectors in failing to number the ballots constitutes the basis for the contest; or as stated in the agreed statement of facts: "It is agreed that, if the court should hold that the unnumbered ballots should not have been counted, then the contestent is entitled to judgment." Thus by the agreed statement of facts all questions except the rightfulness of the counting of the unnumbered ballots were eliminated. And so the record stands before us. The case involves a construction of sections 34 1/2 and 78 of the act of the Legislature approved October 9, 1903, entitled "An act to further regulate elections in the state of Alabama." Gen. Acts 1903, p 438. Those sections of the act are in the following language:

"Sec. 34 1/2. Each ballot shall be numbered by one of the inspectors to correspond to the number of the voter voting the same on the poll list. A voter may write his name on his ballot. The number corresponding with the voter's name on the poll list must be plainly entered in ink on the back of the ballot of the voter. Any person who compares the number on the ballot with the poll list shall be guilty of a misdemeanor, and on the conviction shall be fined not less than one hundred dollars; provided, this shall not apply on the trial of any contested election case."

"Sec. 78. The inspector receiving the ballot shall detach the stub and pass the ballot to each of the other inspectors, and it must then without being opened or examined be deposited in the proper ballot box, after being numbered to correspond with poll list."

The acute question is, are the requirements of the sections mandatory or directory? We deem the exigencies of the case do not call for a discussion of the origin and purpose of the enactment. Any one who may desire to prosecute that inquiry may be greatly aided by consulting the cases cited in the briefs of counsel, wherein similar statutes were discussed and construed, and some of which will be hereinafter cited. In the discussion we shall endeavor to be as brief as we possibly may be, considering the importance of the question. As has already been disclosed, the case does not involve the act of any candidate or voter, but the acts of the inspectors of the election in the four precincts mentioned in the agreed statements of facts and the acts of the inspectors assailed are untainted with fraud or dishonesty. Section 190 of the Constitution authorized the Legislature to enact laws not inconsistent with that instrument to regulate and govern elections. And the Legislature shall provide by law for the manner of holding elections and of ascertaining the result of the same, and of registration, etc. "Such laws will necessarily sometimes have the effect of preventing the elector from voting or of having his vote counted. For instance, a law for the registration of voters, to be effectual, must provide that one not registered shall not vote, and may require of the elector other conditions. But in all these matters the voter had the privilege of voting by a compliance with the law, and his failure to do so is somewhat owing to his negligence or misfortune. * * * The right to vote and have the vote counted should not be taken away by any doubtful construction of a statute, and before the voter should be shorn of the privilege it must be clear that under the circumstances then existing the Legislature intended such to be the case."

We deem the doctrine well settled that statutes tending to limit the citizen in the exercise of the right to vote and of having the vote counted should be liberally construed in his favor. This doctrine, we think, should be applied in construing the statute before us. Buckner v. Lynip (Nev.) 41 P. 762, 30 L. R. A. 354; Owens v. State, 64 Tex. 500; State v. Saxon (Fla.) 12 So. 218, 18 L. R. A. 721, 32 Am. St. Rep. 46. The courts, in order to give effect to the will of the majority and to prevent the disfranchisement of legal voters, have uniformly held those provisions to be formal and directory merely which are not essential to a fair election, unless such provisions are declared to be essential by the statute itself. In McCrary on Elections, § 190, the rule is stated as follows: "If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statutes must so hold, whether the particular act in question goes to the merits, or affects the result of the election, or not. Such a statute is imperative, and considerations touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election." Section 225, and citations in note 2. Paine, in his work on Elections (section 498), expresses the same view in the following language: "In general, those statutory provisions which fix the day and the place of the election and the qualifications of the voters are substantial and mandatory, while those which relate to the mode of the procedure in the election, and to the record and the return of the results, are formal and directory. Statutory provisions relating to elections are not rendered mandatory, as to the people, by the circumstances that the officers of the election are subjected to criminal liability for their violation. The rules prescribed by the law for conducting an election are designed chiefly to afford an opportunity for the free and fair exercise of the elective franchise, to prevent illegal votes, and to ascertain with certainty the result. Generally such rules are directory, not mandatory, and a departure from the mode prescribed will not vitiate an election, if the irregularities do not deprive any legal voter of his vote, or admit an illegal vote, or cast uncertainty on the result, and have not been occasioned by the agency of a party seeking to derive a benefit from them." Judge Post, speaking for the Supreme Court of Nebraska in the case of Waggoner v. Russell, 51 N.W. 465, 15 L. R. A. 740, 33 Am. St. Rep. 625, said: "The view expressed by these authors has the support of the great majority of cases in this country and England. In fact, we are not aware that there is to be found in the reports any diversity of opinion on the subject. The following are a few of the many cases in point: Gass v. State, 34 Ind. 425; Piatt v. People, 29 Ill. 54; Barnes v. Pike Co. Sup'rs, 51 Miss. 305; Fry v. Booth, 19 Ohio St. 25; Tarbox v. Sughrue, 36 Kan. 225, 12 P. 935; State v. Nicholson, 102 N.C. 464, 9 S.E. 545, 11 Am. St. Rep. 767; Parvin v. Wimberg (Ind. Sup.) 30 N.E. 790, 15 L. R. A. 775, 30 Am. St. Rep. 254; Stackpole v. Hallahan (Mont.) 40 P. 80, 28 L. R. A. 502."

As to whether language should be construed as mandatory or directory, the doctrine is thus stated in Wheeler v Chicago, 24 Ill. 105, 76 Am. Dec. 736: "The word 'may' is construed to mean 'shall' whenever the right of the public or third persons depends upon the exercise of the power or performance of the duty to which it refers. And so, on the other hand, the word 'shall' may be held to be merely directory when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or the individual, by giving it that construction. But, if any right to any one depends upon giving the word an imperative construction, the presumption is that the word was used in reference to such right or benefit. But, where no right or benefit to any one depends upon the imperative use of the word, it may be held to be directory merely." Endlich on the Interpretation of Statutes (1888) §§ 433, 436, 437. Mr. Wigmore, in an appendix to the second edition of his Treatise on the Australian Ballot System (page 193), after examining all of the reported cases upon the subject, concludes in the following language: "Wherever our statutes do not expressly declare that particular informalities avoid the ballot, it would...