Slaymaker v. Phillips

• Decision Date: 01 July 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

July 1, 1895

Rehearing Denied December 6, 1895, Reported at: 5 Wyo. 453 at 479.

RESERVED QUESTIONS from the District Court of Converse County, HON RICHARD H. SCOTT, Judge.

This was an election contest, and was tried to the district court without a jury. The court found the facts in the case, and then reserved certain questions to the Supreme Court for its decision. Samuel Slaymaker and Arthur W. Phillips had been opposing candidates for the office of clerk of the district court at the election held in November, 1894. The findings of fact were as follows:

"And the court, having heard all the evidence, and the arguments of counsel, and being sufficiently advised, does say and find for the plaintiff, and that on November sixth, A. D. 1894, a general election was had in the County of Converse, in the State of Wyoming, for the purpose, among other things, of electing a clerk of the district court for said county, for the term of two years, commencing on the seventh day of January, A. D. 1895; that at the time of said election, and for more than one year theretofore, the plaintiff and defendant were, and ever since then have continued to be residents and qualified electors of said county; that at said election the plaintiff and defendant were opposing candidates and nominees for election to the office of clerk of the district court of said county, for the term aforesaid; that the plaintiff and defendant respectively had been theretofore duly and regularly nominated as candidates for said office at said election, by the county conventions of their respective political parties, held in said county, and the said nominations had been duly and regularly certified, made signed, authenticated and verified as provided by law, which said certificates of nomination had been duly and regularly filed in the office of the county clerk of said county, at and within the time required by law, and the names of the plaintiff and defendant were duly and regularly printed as such candidates and nominees for said office upon the official ballots prepared for and used at said election; that at said election votes were cast for the plaintiff and defendant, respectively, and for no other person, for said office, in each of the voting precincts in said county, and the said votes after being canvassed and counted by the judges and clerks of election, at the several precincts, were certified, returned and transmitted to the county clerk of said county; that thereafter, and on the 19th day of November, A. D. 1894, all of the returns of said election in said county had been received by the county clerk thereof, and on said day, the same being within fifteen (15) days after the close of said election, the said county clerk, taking to his assistance two justices of the peace of his county, one of whom was of a different political party than himself, did proceed to open and canvass the returns of said election in said county, and to make abstracts of the votes, in the manner provided by law, and did complete such canvass on that day, and did then, and on the said 19th day of November, A. D. 1894, find and declare from said returns that the said plaintiff had received four hundred and eighty-five (485) votes at said election, for the said office of clerk of said district court, and that the said defendant had received four hundred and eighty-eight (488) votes for said office; and did then further find and declare that the defendant had received the highest number of votes for said office, and had been duly elected thereto, and thereupon the county clerk of said county did make out and deliver unto the defendant a certificate certifying the defendant's election to said office."

"And the court further finds that at said election there were in said county, in addition to others, three voting precincts designated as Voting Precinct No. 11, in Election District No. 3, commonly known as 'Royston's Ranch Precinct,' Voting Precinct No. 26, in Election District No. 2, commonly known as 'Gray's Ranch Precinct,' and Voting Precinct No. 13, in Election District No. 5, commonly known as 'Duck Bar Precinct.'

"That in the said 'Royston's Ranch Precinct,' at said election, the plaintiff received two (2) votes for said office of clerk of the district court, and the defendant received six (6) votes for said office; at the said 'Gray's Ranch Precinct' the plaintiff received nine (9) votes for said office, and the defendant received fourteen (14) votes for said office; and in the said 'Duck Bar Precinct' the plaintiff received eleven (11) votes for said office; thus making a total of twenty-two (22) votes for the plaintiff in said three precincts for said office, and a total of forty-six (46) votes for the defendant for said office in said three precincts."

"And the court further finds that in the said precincts, and each of them, the judges of election therein at said election, wholly failed and neglected to write the name or initials of any of said judges of election upon the back, or upon any other portion of any of the ballots used or voted thereat, and wholly failed and neglected to write any name or initial upon the back, or upon any other portion, of any of said ballots."

"And the court further finds the judges of election in said 'Gray's Ranch Precinct' and in said 'Duck Bar Precinct,' and each of them, at said election, wholly failed and neglected to print on the back of any of the ballots used or voted thereat any stamp or device designating such ballots as 'Official Ballots,' or indicating the name or number of the voting precinct, or in any other respect containing the designating or identifying matter required by law, or any other matter whatsoever, though they did stamp upon the face, at the head of each of said ballots, such device."

"And the court further finds that the judges and clerks of election at each of said precincts treated as lawful and valid all of the ballots voted thereat, and did canvass and return as valid all of said ballots, thereby apparently giving to the plaintiff and defendant, respectively, the number of votes hereinbefore named, and that if said ballots and votes had not been counted, the plaintiff would have received four hundred and sixty-three (463) votes in said county at said election, for the office of clerk of the district court therein, and the defendant would have received only four hundred and forty-two (442) votes at said election, for said office; and by reason thereof the plaintiff would have received the highest number of votes for said office, and would have been elected thereto."

The reserved questions are stated in the opinion.

Cause remanded.

Lacey & Van Devanter, for plaintiff.

Any ballot which is not endorsed by the official stamp is void and should not be counted. It is also void and should not be counted if it has not the name or initials of a judge of election. (Laws 1890, pp. 174, 175, secs. 130, 119, 122, and 128.) The absence of either one invalidates the ballot. The language is positive, and the statute is mandatory. (McCrary on Elect., sec. 190; State v. Chandless (N. J.), 29 A. 322; Ellis v. May, 99 Mich. 538; Aego v. Stoddard, 136 Ind. 700; State v. Connor, 86 Tex. 133; Atty. Gen. v. McQuade, 94 Mich. 439; People v. B'd, 129 N.Y. 395; People v. B'd, 135 N.Y. 522; State v. Walsh, 62 Conn. 260; Baxter v. Ellis, 111 N.C. 124; Spurgin v. Thompson, 37 Neb. 39; Bechtel v. Albin, 134 Ind. 193; In re Ballot marks, 18 R.I. 822; Parvin v. Wimberg, 130 Ind. 561; Curran v. Clayton, 86 Me. 42; Whittam v. Zahoric (Ia.), 59 N.W. 57; Kearns v. Edwards (N. J.), 28 A. 723; In re Vote marks, 17 R.I. 812; State v. Hilmantel, 21 Wis. 566; State v. Stumpf, 23 id., 630; In re Elect. of McD., 105 Pa. 488.)

Robert W. Breckons, for defendant.

Without denying the claim that the statute is mandatory, counsel for defendant contended and argued that section 130 of the election laws does not require or authorize the rejection of all ballots which have not on them both the official stamp and the initials of the judge; but that if when a ballot is handed to the judges to be deposited, it can be identified in any manner as the ballot previously handed to the voter by the election officers, the purpose of the act is accomplished; and cited (Const., Art. VI, Sec. 11; par. 18, sec. 174, chap. 80, L. 1890). The provisions relating to the preparation of ballots were enacted to secure to a voter the right to exercise his franchise freely and without the interference of any other person. The section (130) should be construed in the light of the objects and purposes to be accomplished. It does not require both the stamp and initials to permit a ballot to be counted. The section can be construed to mean that if either the stamp or initials be found on a ballot, it may be counted. The policy of the law is that no voter shall be deprived of his right of suffrage by reason of any neglect or breach of duty on the part of an election officer. (McCrary, sec. 192; Jones v. State, 1 Kan. 273; Gilliland v. Schuyler, 9 id., 569; Paine on Elect., sec. 373; People v. Schermerhorn, 19 Barb., 540; People v. Cook, 8 N.Y. 67; Thompson v. Ewing (Pa), 1 Brewst., 107.) The words "or" and "and" may be used by courts interchangeably. (46 Ia. 670; 65 N.C. 342; 77 id., 35.)

CONAWAY, JUSTICE. POTTER, J., concurs; GROESBECK, C. J., dissents.

OPINION

CONAWAY, JUSTICE.

This is an election contest. Plaintiff and defendant were candidates for the office of clerk of the district court for Converse County, and defendant had a majority of the votes cast counted and returned for the office. Plaintiff contests, however, that the ballots cast at the three voting precincts in the county were...