Peabody v. Burch

• Decision Date: 06 April 1907
• Docket Number: 14,987
• Citation: 89 P. 1016,75 Kan. 543
• Parties: FRANK PEABODY v. N. S. BURCH et al
• Court: Kansas Supreme Court

89 P. 1016

75 Kan. 543

FRANK PEABODY v. N. S. BURCH et al

No. 14,987

Supreme Court of Kansas

April 6, 1907

Decided January, 1907.

Error from Atchison district court; BENJAMIN F. HUDSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ELECTIONS--Preparation of Official Ballot. Although mandatory provisions of the statute are disobeyed in the preparation of the official ballot the will of the voters expressed by means thereof cannot on that account be disregarded.

2. ELECTIONS--Canvassing Board May Not Reject Ballots for Mistakes of Officer Preparing Them. The provision of the statute (Gen. Stat. 1901, § 2718; Laws 1903, ch. 228 § 4; Laws 1905, ch. 222, § 3) that "no ballots other than those provided, printed and indorsed in accordance with the provisions of this act shall be delivered to a voter, deposited in the ballot-box, or counted," does not authorize the election board or other canvassing body to review the work of the officer who prepared the ballot and reject any votes by reason of some wrongful act or omission on his part in that connection.

3. ELECTIONS--Party Ticket Wrongfully on the Ballot--Votes Cast for It to be Counted. The fact that the officer who is charged with the duty of preparing an official ballot wrongfully causes to be printed thereon the ticket of a political party which has forfeited its right to such representation by a failure to file a certificate of nomination will not justify a refusal to count ballots marked in favor of such ticket.

Waggener, Orr & Challiss, for plaintiff in error.

Jackson & Jackson, for defendants in error.

OPINION

MASON, J.:

Prior to a city election in Muscotah each of two local political organizations, known respectively as the People's party and the Citizens' party, nominated a full ticket. A certificate of nomination was duly filed by the president and secretary of the convention of the People's party, but no certificate of any kind was filed in behalf of the Citizens' party. Nevertheless the city clerk caused both tickets to be printed upon the official ballot. A majority of the voters marked their ballots in favor of the candidates on the Citizens' ticket, and they were declared elected. A candidate on the People's ticket claiming to have been elected police judge brought a proceeding in the district court to enforce his right to that office. Being denied relief, he prosecutes error. His contention is that inasmuch as the Citizens' ticket was printed upon the ballot in direct disobedience of the statute it was not a means by which a voter could give effective expression of his choice, and that all ballots marked in favor of that ticket should have been rejected. The adoption of this rule would have resulted in the plaintiff's election.

It is true that the statute expressly forbids the placing of any names on the ballot excepting such as are brought to the notice of the clerk by proper certificates, in these terms: "All nominations made and certified in accordance with the provisions of this act, and none other, shall be printed on the official ballot." (Gen. Stat. 1901, § 2707; Laws 1903, ch. 228, § 2; Laws 1905, ch. 222, § 1.) In the plaintiff's brief it is assumed that an important if not controlling question is whether this language is mandatory or merely directory. There is no room for doubt upon that subject. The provision is mandatory. It is the imperative duty of the clerk to follow the statute--a duty which the courts upon timely application would unhesitatingly enforce. But the question here presented is, What consequence shall follow his disobedience? Where an elector signifies his choice in the only way permitted by the printed directions must he lose his vote because in doing so he makes use of a ticket which ought not to have been placed upon the ballot?

The adoption of the Australian ballot law has made a great change in the method of ascertaining and giving effect to the popular will. Formerly the rule was to count any ballot from which by any reasonable method of interpretation the purpose of the person casting it could be gathered. Now such purpose, however clearly shown, is disregarded unless expressed in a particular way. Legislative restrictions upon the exercise of the right of suffrage are enforced by the courts without hesitation to the very letter, so long as they relate to matters within the control of the individual voter. But with respect to regulations regarding the conduct of others the effort is still to seek such a construction of the law as will accomplish rather than defeat the expressed wishes of the people. The case of People ex rel. Hirsh v. Wood, 148 N.Y. 142, 42 N.E. 536, arose upon facts very similar to those here presented. It was there said:

"The effort in this proceeding is to disfranchise innocent voters because of a latent defect in the official ballot furnished by the state, not discernible on inspection, which ballot they were compelled to use, the defect consisting in the unauthorized insertion therein by a public official, charged with the duty of making up and printing the ballots, of names of candidates in a party column not duly nominated by such party. The intention of the voters who used this party column to express their choice is clear and admits of no doubt. Each one received his ballot from the inspectors, marked it with the cross under the party name and emblem, and returned it to the inspectors, by whom it was deposited in the box and subsequently counted. We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the wilful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult." (Page 146.)

After quoting a part of the foregoing extract the court said, in Blackmer v. Hildreth, 181 Mass. 29, 63 N.E. 14:

"This must be borne in mind in the construction of such statutes and the presumption is that they are enacted to prevent fraud and to secure freedom of choice, and not by technical obstructions to make the right of voting insecure. The provisions above recited with reference to the preparation of the ballot are plainly limited and confined to that purpose. They are binding upon the officers for whose guidance and direction they are needed. If it be seasonably objected to a nomination paper that it was not filed within the time required by § 145, or that the provisions of §§ 141 and 142 have not been complied with, it is the duty of the proper board to inquire into and settle the question, and to sustain the objection, if found to be true and reject the paper. So far as respects their decision these provisions are mandatory. When the decision is made it is final, and a ballot made up in accordance therewith is not thereby made illegal. And in the same way the action of the town clerk, at least in the absence of fraud and corruption, as to the papers to which no objection is made, must be...