State ex rel. McCue v. Blaisdell
| Citation | 119 N.W. 360,18 N.D. 31 |
| Decision Date | 16 January 1909 |
| Court | North Dakota Supreme Court |
Application by the state, on relation of T. F. McCue Attorney General, for a writ of certiorari to be directed to Alfred Blaisdell, as Secretary of State, and J. W. Fabrick as County Auditor of Ward county. Application denied, and temporary writ quashed.
Application denied, and temporary writ quashed.
T. F. McCue, Atty, Gen., and John E. Greene, for relator.
Geo. A. Bangs, for respondents.
Section 168 of the Constitution of this state, as far as pertinent to the present controversy, reads as follows: "All changes in the boundaries of organized counties, before taking effect, shall be submitted to the electors of the county or counties to be affected thereby at a general election and be adopted by a majority of all the legal votes cast in each county at such election." At the general election in 1908 several propositions for the division of, and the creation of, new counties from the present county of Ward were duly submitted to the electors of that county. None of the propositions received a majority of the votes cast thereon, except the one relating to the creation of the county of Mountraille. This question received 4,207 affirmative votes, and 4,024 negative votes.
It is shown that the various candidates for governor of the state received at that election in Ward county the aggregate number of 9,259 votes. It is apparent from these figures that the proposition to create the new county of Mountraille, while receiving a majority of the votes cast on that proposition, did not receive more than half as many favorable votes as the total vote for governor. On application of the Attorney General the alternative writ of this court was issued, directed to the Secretary of State and the county auditor of Ward county, requiring them to certify and return a transcript of the records, certificates, and returns in their custody, etc., to this court, and these officers were by the writ commanded to desist from proceeding in the premises until the further order of this court. Return was duly made by the respondent Blaisdell, as Secretary of State, showing the number of votes cast on the question, and the total number of votes cast for governor, as above set forth, and both parties appeared by counsel and submitted their arguments.
The sole question for determination is the proper construction of section 168, supra, as applied to the facts disclosed by these returns. The relator contends that the section referred to, properly construed, requires an affirmative vote equal in number to a majority of the total votes cast for the different candidates for governor, or more than half the highest number of votes cast in Ward county for candidates for any one office, or on any one question, voted upon at such general election. On the other hand, the respondent contends that when properly construed, the constitutional provision mentioned requires only a majority of the votes cast, upon the creation of the county named, to be favorable to create the new county. At the outset the relator concedes the correctness of this principle and rests his whole contention upon it, namely, that where there is submitted to a vote of the electors of a given county, or other district, a special question, whether so submitted at a general or special election, a majority of the votes cast upon that question only will be sufficient to carry the question or adopt the proposition, unless the legislative will to the contrary is clearly expressed in the law or the Constitution, as the case may be. We may concede that this is a correct statement of the legal principle involved, both on theory and authority. In the present instance he contends that the language of section 168 clearly expresses the meaning of the framers of the Constitution as being that the special question so submitted is lost, unless it receives more than half as many votes as are cast for any office or on any question to be filled or submitted at the same election. Seldom is a question presented on which there is a greater apparent conflict of authority than on the construction of this and similar language contained in statutes and Constitutions of the different states. Matters of importance are pending and held in abeyance in Ward county until this proceeding is decided. The same question is awaiting our decision in other counties, and the exigency requires speedy action on the part of this court. We have given it careful consideration, and have no doubt of the correctness of the conclusions at which we have arrived, both on principle and authority, but to present the reasons for our conclusions logically, with a careful analysis of the different, and oftentimes conflicting, authorities, would require more time than we feel justified in taking, in view of the reasonable demand for speedy action. We shall therefore content ourselves with stating more briefly our reasons, and referring less fully to authorities than we should otherwise like to do.
We deem it advisable to first consider and determine the meaning of certain words contained in the constitutional provision quoted Stripped of meaningless words, as applied to the present controversy, and to simplify matters, we may read that portion of section 168 quoted as follows: "All changes in the boundaries of organized counties shall be submitted to the electors at a general election and be adopted by a majority of the votes cast at such election." The word "electors" may be used to apply to different classes or bodies of people. It is sometimes applied to all persons who are qualified to vote within their respective political subdivisions. At other times it is used as synonymous with "votes," and in many instances has been used indiscriminately and interchangeably with the word "voters." But its meaning in the section in question is not left in doubt, because it is defined by the Constitution itself. Section 121, as amended, reads: The word "qualified" neither adds to nor detracts from the meaning of the word as there used, or, stating it in another form, the word "electors," in section 168 has precisely the same meaning as though it was preceded by the adjective "qualified." We therefore, conclude that the word "electors" as used in section 168 means all persons who, by the terms of the Constitution, have the qualifications necessary to entitle them to vote. Persons qualified to vote, but who do not vote, are still electors. Proceeding, the phrase "shall be submitted to the electors" must mean that the question of the creation of the new county of Mountraille must be submitted to the electors of the present county of Ward; that is, that all persons who are qualified to vote in said county shall be given an opportunity to vote on the creation of Mountraille county. Whether they exercise their rights of suffrage on this question, or neglect to do so, in no way affects the fact of its submission. If the proper authorities, in a proper manner (which is not controverted in this proceeding), gave them an opportunity to vote on it at the general election last held, it was then submitted to them. These propositions are so plain that they hardly seem to require a citation of authorities. Yet we find the same principle enunciated in Sanford v. Prentice, 28 Wis. 358; Beardstown v. Virginia, 76 Ill. 34. See also United States v. Badinelli (C. C.) 37 F. 138; O'Flaherty v. City of Bridgeport, 64 Conn. 159, 29 A. 466.
We next come to the interpretation of the words "votes cast," and to aid us in this we may seek a definition of the word "voter." This word, like the word "elector," is used in various senses, but when used in apposition to, or in contrast with, the word "elector," it has but one meaning. A voter in this sense is an elector who exercises the privilege, conferred upon him by the Constitution and the laws, of voting. He is an elector who does vote, and in the present instance a voter is one who voted at the last November general election, and on the question in controversy is one who actually voted, either for or against the creation of the new county. Am. & Eng. Enc. of Law, at page 1075, says: "The word 'voters' has two meanings--persons who perform the act of voting, and persons who have the qualifications entitling them to vote." And in Sanford v. Prentice, supra, the term "legal voter" is defined, and we think properly so, as meaning, unless a different meaning appears from other language in the act, a qualified voter who does in fact vote, as the elector in the exercise of his franchise or privilege of voting. An elector is not a voter unless he votes, yet he still retains his qualifications as an elector.
The word "vote," used as a noun, is the expression of the choice or preference of the voter. The choice may be exercised in several different manners; viva voce, by the use of a ballot; by show of hands; by a division of the house or meeting and possibly by other methods. Before the public recognized the wisdom of a secret ballot electors in many places exercised their right to cast their votes by the viva...
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