State ex rel. Waggoner v. Russell
Decision Date | 02 March 1892 |
Parties | STATE, EX REL. WILLIAM WAGGONER, v. J. A. RUSSELL ET AL |
Court | Nebraska Supreme Court |
ORIGINAL application for mandamus.
Relator's action DISMISSED.
C. C Flansburg, for relator.
R. L Keester, contra.
At the general election in 1891 the relator and one Cassell were opposing candidates for the office of supervisor of Mullally township, Harlan county, and upon a count thereof each was credited with thirty-two votes. There was cast, in addition thereto, one vote for the relator, otherwise regular, but the mark opposite his name was made with a lead pencil instead of ink. The respondents, who were the judges and clerks of election, rejected said ballot, and relator now seeks a peremptory order from this court requiring them to meet and count said vote in his favor and declare the result. The question presented involves a construction of section 20 of the act approved March 4, 1891, known as the Australian ballot law. The provisions of said section, so far as they are material in this connection, are as follows:
In the construction of statutes of this character it is important to keep in mind two recognized principles:
First--That the legislative will is the supreme law and the legislature may prescribe the forms to be observed in the conducting of elections and provide that such method shall be exclusive of all others.
Second--Since the first consideration of the state is to give effect to the expressed will of the majority, it is directly interested in having each voter cast a ballot in accordance with the dictates of his individual judgment.
Recognizing the principle first stated the courts have uniformly held that when the statute expressly or by fair implication declares any act to be essential to a valid election, or that an act shall be performed in a given manner and no other, such provisions are mandatory and exclusive. By an application of the second principle, the courts, in order to give effect to the will of the majority and to prevent the disfranchising of legal voters, have quite as uniformly held those provisions to be formal and directory merely, which are not essential to a fair election, unless such provisions are declared to be essential by the statute itself.
Judge McCrary, in the last edition of his excellent work on the Law of Elections, section 190, states the rule as follows:
Mr. Paine, in his work on Elections, section 498, expresses the same views in the following language:
The view expressed by these authors has the support of the great majority of cases in this country and England. In fact we are not aware that there is to be found in the reports any diversity of opinion on the subject. The following are a few of the many cases in point: Gass v. State, 34 Ind. 425; Piatt v. People, 29 Ill. 54; Barnes v. Supervisors, 51 Miss. 305; Fry v. Booth, 19 Ohio St. 25; Tarbox v. Sughrue, 36 Kan. 225, 12 P. 935; State v. Nicholson, 102 N.C. 465, 9 S.E. 545. In the last case this rule was held to apply to a constitutional provision.
There are other sections of the act which shed light upon the subject and assist us in determining the intention of the legislature. For instance, it is provided by section 13 "that the ballots shall be supplied by the county or other municipality," and that "ballots other than the official white ballots printed by the respective county or municipal clerks according to the provisions of this act shall not be cast or counted at any election." By section 23 it is provided that "No judge of election shall deposit in the ballot box any ballot unless it is identified by the signature of two of the judges of election," and that every person violating the foregoing provisions shall be guilty of a misdemeanor. By section 25 it is provided as follows:
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