Slaymaker v. Phillips

• Decision Date: 06 December 1895
• Citation: 5 Wyo. 453,40 P. 971
• Parties: SLAYMAKER v. PHILLIPS
• Court: Wyoming Supreme Court

40 P. 971

5 Wyo. 453

SLAYMAKER v. PHILLIPS

Supreme Court of Wyoming

December 6, 1895

5 Wyo 453 at 479.

Original Opinion of July 1, 1895, Reported at: 5 Wyo. 453.

Rehearing denied.

CONAWAY JUSTICE. POTTER, J., concurs. GROESBECK, CHIEF JUSTICE dissenting.

OPINION ON REHEARING.

CONAWAY, JUSTICE.

The principal questions now called to our attention arise upon the provision of section 130 of Chap. 80, session laws of 1890, in regard to the rejection of ballots: "In the canvass of the votes any ballot which is not endorsed by the official stamp or has not the name or initials of the judge of election as provided in this act, shall be void and shall not be counted."

1. It is urged that this may be construed to mean that "In the canvass of the votes any ballot which is not endorsed by the official stamp and has not the name or initials of the judge of election, as provided in this act, shall be void and shall not be counted," thus requiring the absence of both the stamp and the name or initials to authorize the rejection of a ballot. It is true that some courts have gone to the extent of construing "or" to mean "and" in order to carry out the plain intent of the legislature; but, as shown in the opinion handed down on the first hearing, the whole tenor of the act in which this provision occurs shows that the legislature meant what is expressed.

The following example was given in argument in illustration of the use sometimes made of the word "or:" "Any person who is not a citizen of the United States or has not declared his intention to become such is not entitled to vote." As to this it is to be said that any author using this language would be saying what he did not mean. The evident meaning is that "any person who is not a citizen of the United States and has not declared his intention to become such is not entitled to vote." The evident intention is to say that both disqualifications are required to deprive one of the right to vote. But in the provision under consideration, requiring the rejection of ballots, our legislature has expressed its evident intention in apt language. The provision is in plain, terse and mandatory words; it is not for the courts to question its wisdom or propriety.

2. It is further contended that the provision of section 130, requiring the rejection of ballots, is in conflict with part of the next section of the act upon the same subject. The next section is as follows: "Sec. 131. As soon as the polls of the election shall be closed the judges shall proceed immediately to canvass the vote given, and shall continue without adjournment until the canvass is completed. The canvass must commence by a comparison of the poll lists, and they must be made to agree; the ballot box shall then be opened and the ballots counted by the judges and clerks, unopened, and if there are more ballots than names upon the poll list, the ballots must be returned to the box, shaken up, and one of the judges shall draw from such box ballots enough to make the remainder agree with the poll list, which ballots so drawn shall be destroyed, and two or more ballots being found so folded as to bear the appearance of having been voted by one person, shall not be counted, but preserved with the poll books; the poll list and ballots being made to agree, the judges and clerks shall then proceed to count and ascertain the number of votes for each person named upon such ballots." This section contains, in substance, the usual provisions authorizing and requiring the proper officers to canvass the vote. So far as the cases have fallen under our observation or been called to our attention, such provisions have not been held to conflict with other provisions requiring the rejection of other ballots than those specified, nor to require the counting of illegal or void ballots. It is the duty of the courts to so construe the provisions of a statute that they may all stand and have effect, if this can be done by a reasonable construction. Section 130 provides that any ballot which is not endorsed by the official stamp or has not the name or initials of the judge of election as provided by this act, shall be void and shall not be counted. Section 131 provides that two or more ballots being found so folded as to bear the appearance of having been voted by one person shall not be counted. These provisions are not conflicting, but easily stand together without the aid of construction; and we are not of the opinion that the general language of the concluding clause of section 131, requiring the canvassers to count the votes, require the counting of votes contained in illegal or void ballots, or ballots which other statutory provisions require to be rejected.

3. It is further contended that the provision quoted from section 130 is repugnant to the constitution because its enforcement will result in the rejection of ballots of persons having the constitutional qualifications of electors. So far as we are at present advised, assisted by the diligent research of counsel, there are, up to this time, but two authorities holding that a statutory provision such as that of section 130 is in conflict with constitutional provisions fixing the qualifications of electors. And the qualifications of electors are fixed by constitutional provision in every, or nearly every, State in the Union. It is said that there are one or two exceptions, but we know of none. (6 Am. & Eng Enc. Law, 263.) These two authorities are the dissenting opinion in this case, and the case of Moyer v. Van De Vanter, 12 Wash. 377. These authorities command and receive our respectful consideration. As to the case of Moyer v. Van Devanter, it is to be remarked that it was decided under statutory and constitutional provisions different from our own. The ballots drawn in question in that case bore the proper stamp but had not the name or initials of a judge of the election as required by statute. Another section of the statute makes it a misdemeanor for any inspector or judge of election to deposit in any ballot box any ballot upon which the stamp does not appear. It is not made a crime to deposit a ballot upon which the initials do not appear. Our statute punishes as for a felony any election officer who deposits in a ballot box a ballot which has not both the stamp and the name or initials of a judge of the election. The constitution of the State of Washington provides that "all elections shall be by ballot. The legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot." The constitution of Wyoming contains similar provisions, and, in addition, the following: "The legislature shall provide by law that the names of all candidates for the same office, to be voted for at any election, shall be printed on the same ballot, at public expense, and on election day to be delivered to the voters within the polling place by sworn public officials, and only such ballots so delivered shall be received and counted." This devolves upon our legislature the constitutional duty, and the corresponding constitutional authority, to provide adequate means for identifying the ballots received and counted as those delivered to the voters within the polling place by sworn public officials, and to provide by statute the means to secure the constitutional result that only such ballots so delivered shall be received and counted. If the legislature may not provide the means, it cannot secure the result. In the statute now attacked as unconstitutional such means are provided. And nowhere else is any provision made prohibiting the counting of ballots not delivered by sworn public officials. Nowhere else is a method provided for identifying the ballot offered by the elector as the one furnished him by the election officers in the polling place. But the doctrine of the case of Moyer v. Van Devanter, supra, is clearly against the great weight of authority. The result of a consideration of the cases is well summed up in these words: "These statutes being designed to preserve the secrecy of the ballot and to prevent fraud, will generally be considered mandatory, and this will be so in all cases where the statute provides that a ballot varying from the requirements of the law shall not be counted; but if this provision is lacking, while it is the duty of the election officers to refuse to receive the ballots, if the deviations from the law are manifest; if they have been received they should not be rejected if the variations are trifling." (6 Am. & Eng. Enc. Law, 349.) And this is in accordance with Judge McCrary's view of the law, although from a quotation from Gilleland v. Schuyler, 9 Kan. 569, contained in the dissenting opinion in this case, a different inference might be made. McCrary's text leaves no room for doubt as to his view, and little room to question that his view is correct. Perhaps no better discussion of this branch of the law can be found, in brief, than his. He says: "The language of the statute to be construed must be consulted and followed. 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 statute 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 all considerations of 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, within a particular time, or in a particular manner, and does not declare that their performance is essential to the validity of the election,...