Shaw v. Stewart

• Decision Date: 07 March 1927
• Docket Number: 25688
• Citation: 212 N.W. 760,115 Neb. 315
• Parties: GORDON C. SHAW, APPELLANT, v. JOHN A. STEWART, APPELLEE
• Court: Nebraska Supreme Court

212 N.W. 760

115 Neb. 315

GORDON C. SHAW, APPELLANT, v. JOHN A. STEWART, APPELLEE

No. 25688

Supreme Court of Nebraska

March 7, 1927

APPEAL from the district court for Clay county: WILLIAM A. DILWORTH JUDGE. Reversed, with directions.

REVERSED.

Waring & Waring, for appellant.

J. E Ray, contra.

Heard before GOSS, C. J., DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.

OPINION

DEAN, J.

At a regular city election held in Edgar, April 6, 1926, John A. Stewart was a candidate for councilman from the first ward on a "citizens" ticket and Gordon C. Shaw was an opposing candidate in the same ward "by petition." The official ballot, so far as it is involved here, was printed in the following form:

For Councilman.

Vote for One

[] J. A. STEWART Citizens

[] GORDON C. SHAW By Petition

[]

When the ballots were counted, it appeared that 120 electors had placed an "X" before the printed name of J. A. Stewart, and 19 electors had placed an "X" before the printed name of Gordon C. Shaw, and 107 electors had written the name of Gordon C. Shaw in the third space on their respective ballots and had placed an "X" before the name so written. Stewart received 120 votes and Shaw received 126 votes, provided all the votes are to be counted, where Shaw's name was both printed and written. Claiming a majority of six votes, Shaw contested the election. But Stewart prevailed both in the county court and the district court. Shaw has appealed.

There is nothing in the record to show that the vote was irregular or that the writing in of the name of Shaw on the ballots, or the marking of the ballots, was not authorized by law and by our former decisions. No fraud has been charged and, of course, none was proved. In view of the facts and of our decisions in public election cases, whether for candidates for public office or for a civic proposition submitted to the voters, we have uniformly held that technical rules of construction shall not be permitted to disfranchise the voter. State v. Grimm, ante, p. 230, and cases there cited.

Gauvreau v. Van Patten, 83 Neb. 64, 119 N.W. 11, is a case involving an election contest for councilman in the city of Hastings. In that case an interesting citation from a recognized authority is here reproduced: "Wherever our statutes do not expressly declare that particular informalities avoid the ballot, it would seem best to consider their requirements as directory only. The whole purpose of the ballot as an institution is to obtain a correct expression of intention; and if in a given case the intention is clear, it is an entire misconception of the purpose of the requirements to treat them as essentials, that is, as objects in themselves, and not merely as means." 2 Wigmore, Australian Ballot System, 193 (appendix). See, also, White v. Slama, 89 Neb. 65, 130 N.W. 978.

One of the cardinal rules in cases of this class clearly appears to be that, in the absence of fraud, the intent of the voter as disclosed by his ballot will govern, and the provisions of statutes generally, relating to the form of the ballot and the statutory manner of indicating the elector's choice of candidates, should be construed as directory, unless the statute itself makes the ballot void for failure to strictly comply with its every provision. See generally Bingham v. Broadwell, 73 Neb. 605, 103 N.W. 323; Griffith v. Bonawitz, 73 Neb. 622, 103 N.W. 327. For an election officer to disfranchise a voter whose intent plainly appears on his ballot is a grievous wrong against the voter and for this court to do so on appeal would be an unthinkable perversion of judicial power.

Some of the rules that govern in the matter of statutory elections are pointed out in the following citations: Election officers are without judicial power. Hagge v. State, 10 Neb. 51, 4 N.W. 375; State v. Dinsmore, 5 Neb. 145. It is elementary that the duties of election officers in the counting of ballots are purely ministerial. Long v. State, 17 Neb. 60, 22 N.W. 120. In the exercise of the right of suffrage the statutes are to be construed liberally in favor of the voter. 9 R.C.L. 1093, sec. 102. The provisions of a statute which affect the mode and manner of conducting the mere details of an election are directory and the will of the majority is to be respected even when irregularly expressed. The electors are not to suffer on account of the default of their agents. McCrary, Elections (4th ed.) sec. 228; State v. Grimm, ante, p. 230; Howard v. Harrington, 114 Me. 443, 96 A. 769, L. R. A. 1917A, 211; Clark v. Board of Commissioners, 33 Kan. 202, 6 P. 311; Coughlin v. McElroy, 72 Conn. 99, 43 A. 854.

Defendant finally cites section 1945 and subdivision 4 of section...