State ex rel. Braley v. Gay

• Decision Date: 30 October 1894
• Parties: STATE EX REL. BRALEY ET AL. v. GAY.
• Court: Minnesota Supreme Court

59 Minn. 6

60 N.W. 676

STATE EX REL. BRALEY ET AL.

v.GAY.

Supreme Court of Minnesota.

Oct. 30, 1894.

(Syllabus by the Court.)

1. Held, where it clearly appears that there was no willful disregard of that part of Gen. Laws 1891, c. 4, § 51, providing that the initials of the judges of election to be placed on the backs of the ballots shall be those of two judges of “opposite political parties,” and no wrong or fraud has been intended or perpetrated, that the requirement is not mandatory, but is complied with if the initials are of two judges of the same political affiliation.

2. The requirement found in section 57 of the same chapter, that an oath must be administered to an alleged illiterate or physically disabled elector before he can have the aid of another person in the marking of his ballot, held mandatory. And the elector who requests such aid must, under oath, bring himself strictly within the terms of the statute as to his inability to mark his own ballot. He cannot avail himself of aid upon the ground that he usually uses glasses, but has not brought them with him.

3. An oath, in its broadest sense, includes all form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. Held, in the absence of a statutory form of the oath to be administered to an alleged illiterate or physically disabled elector, that the form used by the judge at the election in controversy was of binding force and effect.

4. Held (in a case where all-electors, as well as the marker, who was one of the judges of election-acted in good faith), in the absence of a finding that any of the electors whose ballots were marked by the judge at their request, and as they directed, had knowledge that said judge had previously marked more ballots than he was permitted by the terms of said section 57 to mark, namely, three, that the prohibition as to the marking is simply directory.

5. Held, on the facts in this case, that the law requiring and providing for the secrecy of the ballot was not violated. The irregularity complained of was insufficient to warrant the rejection of the ballots cast under such circumstances.

Appeal from district court, Winona county; M. J. Severance and Charles M. Start, Judges.

Proceeding by the state of Minnesota, on the relation of Silas Braley, against John F. Gay, to contest said Gay's right to an office. Judgment for said Gay, and the state and Silas Braley appeal. Affirmed.

H. W. Childs, Atty. Gen., O. B. Gould, and M. B. Webber, for appellants.

L. L. Brown and Edward Lees, for respondent.

COLLINS, J.

By this proceeding the relator, Braley, questions the right of defendant, Gay, to the office of sheriff of Winona county. The election under which the latter now holds the office is that of 1892, and consequently the election law involved is Gen. Laws 1891, c. 4. We readily agree with counsel in the assertion that it was the purpose of the legislature, when enacting this law, to purge our methods of conducting elections of some of the evils connected therewith, and to promote the purity of the ballot; but the law must not be construed so radically as to render it incapable of enforcement without disfranchising great numbers of electors through no fault of their own, nor must the construction placed upon it be so technical as to lead to its overthrow. The construction must be practical, if this be possible, in view of the language used.

1. At one of the precincts in the city of Winona, two of the judges of election were of the same political party, while the third was of another party. Section 51 of chapter 4 requires that two of the judges, “of opposite political parties,” shall place their initials on the backs of all the ballots before they are used by the voters. No subsequent reference is made in the law to this requirement that the judges who thus mark the ballots shall be of opposite political faith; but by later sections (52 and 56) it is enacted that the ballot, when presented to the voter, shall have the proper initials to be exposed to the judges when, after marking, it shall be offered for deposit in the box, and “no ballot which has not the initials of two judges of election in said judges' own handwriting on the back thereof” shall be placed in the box. About 30 of the ballots cast at this precinct, out of a total of 412, were marked by two of the judges of election in accordance with the provisions of said section 51; but the balance bore the initials of two judges who happened to be of the same political persuasion; and, if these ballots can be cast out of the count, relator is entitled to the office. His counsel claim that the provision of the law which requires the two judges who place their initials upon the backs of the ballots to be of opposite political parties is mandatory, and that, unless strictly complied with, the ballots should not be counted. We cannot adopt this view. It is not claimed that there was any willful disregard of this provision of the law, or that by failing to observe it a fraud was perpetrated upon any one, or that a wrong was intended or accomplished. The placing of initials on the ballots by judges who belonged to the same party was in ignorance of the requirement in question. There are many reasons why this provision must be held simply directory, but we need not state all. One is that if this is a positive requirement the entire vote of a precinct could be rejected by deception on the part of a person seeking the position of judge of election, as to his politics, or by a mistake on the part of the appointing power as to the political affiliations of a person placed by it on the board, and in many other ways. Again, what would be the result if no persons could be...