Perry v. Hackney
| Decision Date | 25 April 1902 |
| Docket Number | 6731 |
| Citation | 90 N.W. 483,11 N.D. 148 |
| Court | North Dakota Supreme Court |
Appeal fro District Court, Eddy County; Lauder, J.
Election contest between J. W. Perry and James Hackney. Judgment for defendant, and contestant appeals. Affirmed.
Affirmed.
Marion Conklin, for appellant.
The statute requires booths, in which voters may prepare their ballots, to be so constructed as to screen the elector from observation, with the guard rail so constructed that only persons within the rail can come within ten feet of the booth. This staute is mandatory. § 521, Rev. Codes. § 129 Const. Wigmore Aust. Bal. 50. Black on Interpretation, 339. Potter's Dwarris on Statutes, 228. The statute is introductive of a new law and directs the manner of constructing the booth, and although there are no negative words in it, it must be strictly enforced. Cook v. Keeley, 12 Abb. Pr. 35; Attorney Genl. v Kirby, 79 N.W. 1009; Attorney Genl. v. McQuade, 53 N.W. 944; Attorney Genl. v. Stillson, 66 N.W 388. Where the meaning of a statute is clear, those upon whom compliance devolves have no right to engraft exceptions thereon, or make modifications or depart from the plain letter of the statute. State v. McElroy, 16 L. R. A. 278.
Thus where all the ballots of one party at a polling place bore a wrong endorsement by which they could be distinguished from other ballots cast at the same place in contravention of the statute the count of them was not justified by the fact that the endorsement was wrong because of a mistake of the county clerk in distributing the ballots to the polling places and that they were cast and received in good faith. People v Onondaga County Canvassers, 129 N.Y. 395; Miller v. Schallem, 8 N.D. 395, 79 N.W. 865; De Goo v. Fitzsimmonds, 83 N.W. 282; Attorney Genl. v. May, 58 N.W. 483. When the salutory provisions and regulations in respect to public elections are not substantially observed, the election is void, though it may have been conducted fairly and honestly. Van Amringe v. Taylor, 12 S.E. 1005; Attorney Genl. v. May, 58 N.W. 483. If the returns for Cheyenne precinct are thrown out, appellant is entitled to the office.
S. E. Ellsworth, for respondent.
The statement of the case as stated contains a portion of the evidence introduced upon the trial. Contestant demands a retrial upon the issues found in the VI finding of fact, only; this in compliance with a statute requiring appellant to specify the question of fact that he desires the supreme court to review. The questions of fact not specified are deemed to have been properly decided by the trial court. Douglas v. Richards, 10 N.D. 366, 87 N.W. 600. The findings of fact do not establish presumption of fraud upon the part of the election officers. Such a presumption cannot be inferred but must be clearly proved by the party alleging fraud. 14 Am. and Eng. Enc. L. 190; Joyce v. Joyce, 5 Cal. 161; Smith v. Yule, 31 Cal. 180. In cases such as this no intimidation or fraud being shown, and where the views and preferences of the electors were fully expressed, by their ballots, even though the statutory directions for the guidance of the voter and officers were not observed, the law is best served by giving validity and effect to the vote and not by wholly rejecting the same. State v. Gay, 59 Minn. 6, 60 N.W. 676; In re White, 28 S.W. 542. The voter who has had nothing to do with the preparation of the ballot nor with the matters preliminary to election should not be deprived of the right to have his vote counted, because of the errors or wrongful acts of the election officers. McCreary on Elections (4 Ed.) § § 706, 724; Hankey v. Bowman, 84 N.W. 1002; Atkinson v. Lorbeer, 111 Cal. 419, 44 P. 62; People v. Prewett, 56 P. 617; State v. Sadler, 58 P. 284; Meyer v. Van De Vanter, 41 P. 60. If the statute simply provides that certain acts shall be done within a particular time or 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 merits of the election. McCreary on Elections (4 Ed.) § § 225, 227; Parvin v. Wimberg, 130 Ind. 561, 30 N.W. 790. It is only those provisions of the statute relating to the time and place of holding elections, the qualification of voters and such others as are made prerequisites to the the validity of an election that are held to be mandatory; all others are directory, and failure to observe them, caused by ignorance or mistake and not resulting in manifest fraud does not afford grounds for rejecting the entire vote of the precinct. Russell v. McDowell, 23 P. 183; Atkinson v. Lorbeer, 44 P. 162; McCreary on elections, § 228. Tested by these rules § 521 is not mandatory. It consists of directions for the guidance of election officers and refers wholly to the details of the manner of conducting the elections. A penalty is prescribed for the corrupt violation of the statute by election officers. § § 558, 560, Rev. Codes. The aim and purpose of the law is to secure to qualified voters an untrammeled expression of their will and if insured a correct record and return of the vote, it does not follow that because absolute secrecy is not observed that the purpose of the law in not attained. Those votes marked by the electors without entering the booths at all may legally be counted. Hall v. Schoenecke, 128 Mo. 661, 31 S.W. 97; State v. Gay, 60 N.W. 676; Bowers v. Smith, 17 S.W. 761; State v. Norris, 37 Neb. 299, 55 N.W. 1086; Russell v. McDowell, 23 P. 186; Parvin v. Wimberg, 30 N.W. 790; Baltes v. Farmers' etc., 83 N.W. 83; Seymour v. City, 33 P. 1059; McCreary on Elections, 518-524. If possible the poll should be purged and the legal votes should not be suppressed by reason of the malconduct of the officers of election. Chamberlain v. Woodin, 24 P. 177; Lloyd v. Sullivan, 9 Mont. 577; 24 P. 218; Blue v. Peter, 20 P. 442; State v. Malo, 22 P. 349; State v. Fullinton, 22 P. 378.
This is an election contest. J. W. Perry, the contestant and appellant, and James Hackney, contestee and respondent, were opposing candidates for the office of county auditor of Eddy county at the November 6, 1900, election. The canvass of the official precinct returns by the county canvassing board showed that James Hackney had received 388 votes for said office, and that the contestant had received 346 votes, or a majority for the contestee of 42 votes. In pursuance of such canvass, a certificate of election was issued to the contestee, whereupon the contestant initiated this contest under the provisions of article 12, c. 8, Pol. Code, being § § 563-575, Rev. Codes, inclusive. The contestant, in his notice of contest, challenges only one precinct, viz., Cheyenne precinct. It is his contention that the vote of this entire precinct should be thrown out because of certain irregularities, which we shall hereafter refer to. Excluding the vote of Cheyenne precinct, the contestant received 309 votes and the contestee 291 votes, or a majority for the contestant of 18 votes. The vote of Cheyenne precinct, as officially returned and canvassed, gave the contestee 97 votes and the contestant 37 votes, which, added to the unchallenged votes of the other precincts, gave the contestee a majority of 42, as hereinbefore stated. The trial court made six findings of fact, covering all of the facts in issue, and as a conclusion of law therefrom found that "the vote of Cheyenne precinct, as returned by said election board, was properly counted and included in the abstract of the board of canvassers of said county; and a certificate of election to the office of county auditor, based on said abstract, was properly issued to the contestee, James Hackney." Judgment was entered dismissing the action. The contestant has appealed from the judgment.
A statement of case was settled, in which the "contestant demands a retrial upon the issues found in the sixth finding of fact." It is urged by counsel for respondent that the demand for a retrial is not sufficiently specific to authorize a review by us of the evidence upon any question of fact. We find it unnecessary to pass upon this objection. The sixth finding relates to the conduct of the election officers in Cheyenne precinct. It is not contended by counsel for appellant that any illegal votes were cast or canvassed, or that there is any evidence of actual fraud or bad faith on the part of the election officers of that precinct. On the other hand, the contrary is conceded in their brief. His objection to the sixth finding, which is made a part of his demand for a review, and limits the scope of the review demanded, is "that the facts found by the trial court in the third, fourth, and fifth findings of fact establish a presumption of fraud upon the part of the election officers and others, which is not rebutted by any evidence in the case, and necessarily affected the result of said election--"The trial court found that there were cast in Cheyenne precinct, for the contestant and contestee respectively, the number of votes returned by the precinct officers, and canvassed by the county canvassing board as before stated, and that the persons casting the same were qualified electors of said precinct. The correctness of these findings is not challenged by the contestant. His sole contention is that all of the votes cast in Cheyenne precinct were void, and should not be counted, because of the failure of the election officers of that precinct to comply with some of the provisions of section 521, Rev. Codes, relating to the manner of conducting elections. The particular provisions of the section relied upon are as follows: "The inspectors of elections shall provide, in...
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