State ex rel. Romsa v. Grace

• Decision Date: 24 November 1931
• Docket Number: 1700
• Citation: 43 Wyo. 454,5 P.2d 301
• Parties: STATE EX REL. ROMSA v. GRACE, COUNTY CLERK, CARROLL, INTERVENER
• Court: Wyoming Supreme Court

5 P.2d 301

43 Wyo. 454

STATE EX REL. ROMSA v. GRACE, COUNTY CLERK, CARROLL, INTERVENER

No. 1700

Supreme Court of Wyoming

November 24, 1931

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Mandamus proceedings upon the relation of G. H. Romsa against R. A Grace, County Clerk of Laramie County, to require permission to inspect certain election documents wherein George J Carroll intervened. From a judgment for defendant, relator appeals.

Affirmed.

For the appellant there was a brief by C. P. Plummer and Ellery &amp Spencer, both of Cheyenne, Wyoming, and oral argument by Mr. Ellery and Mr. Plummer.

The intent of the election laws is that the qualifications of voters be made a matter of public record for inspection of persons interested. 2441, 2551-2656 C. S., 1368 C. S. A specific form of affidavit must be made in precincts not requiring registration. Another form is required on account of failure to register because of sickness or absence. These are public records. Ash v. Court, 166 P. 841-842. The county clerk is made custodian thereof. 1492 C. S. Clay v. Ballard, (Va.) 13 S.E. 262-263; State v. Williams, (Mo.) 8 S.W. 771; Higgins v. Lockwood, (N. J.) 64 A. 184-185. Under the statutes above referred to, all election returns including the affidavits referred to are public records with the exception of ballots, which are required to be kept secret unless a contest is filed in which they become relevant and material. See also Bowden v. Webb, (Ark.) 173 S.W. 181-182; Payne v. Staunton, (W. Va.) 46 S.E. 927; Gleeves v. Terry, (Va.) 25 S.E. 552; Keller v. Stone, (Va.) 32 S.E. 454; Clement v. Graham, (Vt.) 63 A. 146-153; State v. King, (Ind.) 57 N.E. 535-537; Bend Pub. Co. v. Haner, (Ore.) 244 P. 868; Nowack v. Fuller, (Mich.) 219 N.W. 749; Harrison v. Powers, et al., (Cal.) 127 P. 818; King v. King, (Wyo.) 168 P. 730, holding that at common law no person is entitled to inspect or make copies unless he has an interest therein as would entitle him to defend or maintain an action, in which the record would be material. Public records except in certain circumstances specified by statute, are property of the public, retained for purpose of inspection. Board v. Campbell, 17 Wyo. 371.

For the respondent there was a brief by Joseph C. O'Mahoney, Bard Ferrall and John C. Pickett, of Cheyenne, Wyoming, and oral arguments by Mr. O'Mahoney and Mr. Ferrall.

Counsel for relator gives no effect whatever to Sections 2655 and 2656 C. S. relating to election returns. The principle is stated in Fishback v. Bramel, 6 Wyo. 293. The affidavits in question are not public records in a general sense. In non-registration precincts election judges act as registry agents. 2566-2569 C. S. The poll list and register of voters after the canvass of the votes is a public record made so by statute. 2570 C. S. But ballots and affidavits occupy a different position. They are secret documents except where necessary in cases of contest. The information sought by relator as to voters who were sworn, appears on the poll list. 2636 C. S. Mandamus is not a proper remedy. 6316 C. S. It is not the duty of the county clerk to furnish the documents demanded. The authorities cited by counsel are not in point. The Wyoming case of King v. King does not sustain the position of respondent. The judgment below should be sustained.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action for a writ of mandamus, brought in the name of the State of Wyoming on the relation of G. H. Romsa against R. A. Grace, County Clerk of Laramie County, as defendant, to compel the defendant to permit relator to inspect certain affidavits filed in connection with the election of November 4, 1930. George J. Carroll intervened in the case. Both the defendant and the intervener filed a demurrer on the ground that the petition failed to state a cause of action. These demurrers were sustained and relator not pleading further, judgment was entered dismissing the petition. From this action of the court relator has appealed.

The petition alleges that relator and George J. Carroll were opposing candidates for the office of sheriff of Laramie County at the general election held November 4, 1930; that Carroll was declared elected to the office; that there is now pending in the District Court of Laramie County a contest proceeding between relator and Carroll for the purpose of contesting the election of Carroll to the office aforesaid; that relator made a demand upon the defendant county clerk to permit relator and his attorneys to inspect and examine all the affidavits of challenged and unregistered voters and all the affidavits of electors concerning the qualifications of persons voting received by the county clerk from the judges of election in thirteen precincts in Laramie County, Wyoming, ten of which are in the city of Cheyenne, where prior registration is required, and three in the outlying precincts where, presumably, prior registration is not required; that the clerk has refused and still refuses to comply with these requests, which requests are not founded upon mere curiosity, but that the examination and inspection of the affidavits is necessary to the relator in the proper preparation for and trial of the contest proceeding above mentioned. It does not appear from the petition upon what ground the contest of the election was brought.

Relator claims that he has the right to examine the affidavits above mentioned under the provisions of Section 1368, Wyo. C. S. 1920, which provide in connection with the duty of the county clerk, that "all books and papers required to be in their offices shall be open to the examination of any person; and if any person or officer shall neglect to comply with the provisions of this section, he shall forfeit, for each day he so neglects, the sum of five dollars."

It is the contention of the defendant and intervener, however, that the relator has not alleged such interest in the inspection of these affidavits as would entitle him to a writ of mandamus. Pertinent statutory provisions on the subject are Section 2570, which provides that when the votes at an election have been canvassed the register or pollbooks kept shall be returned and preserved in the office of the county clerk as a public record and shall at all times be open for public inspection. In precincts where prior registration is not required the persons offering to vote must take and subscribe the same oath as is required of persons applying to be registered, and Section 2575 provides that the affidavit thus made shall be returned by the judges with the poll list. Section 2639 provides that a person voting in a precinct where prior registration is not required, but who has not registered, may under certain conditions register and make affidavit the day of election and be permitted to vote. The affidavit so made "shall be returned by them with the poll lists." Similar provision is made in Section 2635 for an affidavit made on the day of election by one who has been challenged. The law provides that the judges of election shall, after the polls are closed on election day, proceed to count the ballots, enter the result in the poll books, and then further provides:

Sec. 2655. "The judges of election shall then enclose and seal one of the poll books together with all the ballots cast and affidavits of electors concerning the qualification of persons voting, all ballots returned by voters as spoiled and all ballots not cast, accounting for those posted as by law required, under cover directed to the county clerk of the county in which such election is held, or municipal clerk as the case may be, and the packet thus sealed shall be conveyed by one of the judges or clerks of election, to be determined by lot if they cannot agree otherwise, and the said packet shall be delivered to the postmaster at the nearest postoffice and registered within forty-eight hours from the closing of the polls. The judges of election shall retain the other poll book in their possession."

Sec. 2656. "All the ballots counted by the judges of election shall, after being read, be strung upon a strong thread or twine in the order in which they have been read, and shall be delivered, together with the poll books, to the clerk as hereinbefore specified, who shall carefully preserve said ballots for six months, and at the expiration of that time shall destroy them by burning without the package being previously opened; provided, if any contest of election shall be pending in which such ballots may be required as evidence, the same shall not be destroyed until such contest is finally determined."

1. Relator, as already stated, claims that under Section 1368 supra, he is entitled to the inspection of the affidavits whether he has an interest therein or not. There might be ground for that contention, if that section could be taken literally. But it is apparent that it cannot, for it would then at once run counter, at least, to the provision that ballots shall be kept in a package under seal. On the other hand, Section 2656 cannot be controlling herein. For the foregoing provision, contained in that section, that the ballots shall be kept under seal, has reference only to ballots and not to the affidavits returned with them. These affidavits are required to be put into the same package with the ballots; but the legislature has left us in the dark as to what shall be done with them thereafter. It has neither provided that they shall be taken out, nor that they shall be retained therein. The provision that the ballots shall be destroyed after a period of six months, in the absence of a contest "without the package being previously opened" does not throw any light on the...