State v. Anderson

• Decision Date: 11 January 1927
• Citation: 191 Wis. 538,211 N.W. 938
• Parties: STATE, UPON COMPLAINT OF TANK, v. ANDERSON.
• Court: Wisconsin Supreme Court

191 Wis. 538

211 N.W. 938

STATE, UPON COMPLAINT OF TANK,

v.ANDERSON.

Supreme Court of Wisconsin.

Jan. 11, 1927.

Appeal from Circuit Court, Winnebago County; Fred Beglinger, Judge.

Quo warranto by the State, on the complaint of J. H. Tank, against Chris. Anderson. From judgment for defendant, plaintiff appeals. Affirmed.--[By Editorial Staff.]

Action of quo warranto brought by J. H. Tank to test the right of the defendant, Chris. Anderson, to hold the office of town chairman. From an order overruling a demurrer to defendant's answer, plaintiff appeals.

Crownhart and Owen, JJ., dissenting.

Plaintiff was nominated for the office of chairman at the town caucus, and his was the only name of any candidate for that office that was printed upon the official ballot. Electors desiring to vote for the defendant for town chairman either wrote his name in the blank space left upon the ballot for that purpose, or inserted it in that space by pasting therein printed slips of paper containing defendant's name.

If the ballots, on which defendant's name had either been written in or pasted on the ballot, are counted, defendant received a majority of all ballots cast. The answer of the defendant admitted this use of stickers upon the ballots and alleged that such use was lawful under the election laws of Wisconsin. The plaintiff demurred to this answer on the ground that it did not state facts sufficient to constitute a defense. The circuit court overruled the demurrer. The plaintiff appealed from that order.Bouck, Hilton, Kluwin & Dempsey, of Oshkosh (Fawsett, Smart & Shea, of Milwaukee, of counsel), for appellant.

D. K. Allen, of Oshkosh, for respondent.

STEVENS, J.

The single question presented is whether the statutes regulating elections permit the voter to express his choice for a candidate, whose name is not printed on the official ballot, by pasting that name on the ballot, as well as by writing it thereon. The solution of this question depends entirely upon the intent of the Legislature, as expressed in the statutes.

[1][2] In construing statutes regulating elections, courts must ever keep in mind that:

“The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them.” State ex rel. Dithmar v. Bunnell, 131 Wis. 198, 206, 110 N. W. 177, 11 Ann. Cas. 560.

“The constitutional right of an elector to have any reasonable expression of his intention in voting given effect is of the most sacred character, and no intent to thwart it can be ascribed to the Legislature except upon unambiguous expression. While such purpose has been found in modern ballot legislation of some of the states, it is not declared in our statutes, and a ballot marked in such manner that the intention of the elector can be gleaned therefrom should be received and counted so as to effectuate that intent. This purpose is manifest in the statute and has been declared by this court.” State ex rel. Crain v. Acker, 142 Wis. 394, 395, 125 N. W. 952, 953 (20 Ann. Cas. 670).

[3][4] The cardinal rule prescribed by statute is that:

“All ballots cast at any election shall be counted for the persons for whom they are intended, so far as such intent can be ascertained therefrom.” Section 6.42 of the Stats.

“The doctrine of all the cases is that the intention of the voter, as gathered from the ballot itself, or from surrounding circumstances of a public character, is to control. Ballots which fairly and reasonably indicate the real intention of the elector are to be counted as cast, unless to do so runs counter to some statutory enactment.” State ex rel. Blodgett v. Eagan, 115 Wis. 417, 420, 91 N. W. 984.

An examination of the ballots on which defendant's name was pasted leaves no doubt that it was the intent of the voters who cast those ballots to vote for defendant as chairman of the town. Those ballots must be counted for defendant, “unless to do so runs counter to some statutory enactment.” The case turns on the question whether, in counting these ballots as votes for the defendant, the officers who determined that defendant had been elected chairman of the town ran contrary to any statutory enactment.

[5] When the Australian ballot law was first enacted in Wisconsin in 1889, it expressly gave the voter the right to use stickers in voting for one whose name was not printed on the official ballot. In 1893 the Legislature amended the law by omitting this provision and enacting what is now subdivision (11) of section 6.23 of the Statutes, which provides that:

“No pasting names over a ticket or over any names thereon shall be allowed and no name so pasted shall be counted except as provided in section 5.28.”

Under the election laws as they stood after this amendment of 1893, the portion of the statute giving information to voters provided:

“If he wishes to vote for a person for a certain office, whose name is not on the ballot, he must write the name in the blank space under the printed name of the candidates for the office.” Section 37, Wis. Stats. Supp. 1906, which is now section 6.22, subd. (1) (b) of the Statutes.

In 1907 this latter provision was so amended by chapter 583 so as to read:

“If the voter does not wish to vote for all the candidates nominated by one party, he shall mark his ballot by making a cross or mark in the square at the right of the name of the candidate for whom he intends to vote, or by inserting or writing in the name of the candidate.”

Under familiar rules of statutory construction, the court must give such construction to section 6.22 of the Statutes as will give force and effect to the amendment of 1907, rather than to so construe it that this provision of the statutes shall be given the same force and effect as if the amendment of 1907 had not been adopted.

In construing the election laws of other states, it has been held that the word “inserting” has a broader meaning than the word “writing.” Little Beaver Township School Election, 165 Pa. 233, 237, 30 A. 955, 27 L. R. A. 234;Ray v. Registrars of Voters, 221 Mass. 223, 225, 108 N. E. 1051, Ann. Cas. 1918A, 1158;De Walt v. Bartley, 146 Pa. 529, 544, 24 A. 185, 15 L. R. A. 771, 28 Am. St. Rep. 814. Each of the cases just cited hold, under a statute authorizing the “inserting” of a name not on the ballot, that such name may be inserted by the use of pasters.

“It would be a strained construction to hold that the word ‘inserting,’ as used in the act, means inserting by writing. It certainly does not say so, and we see no reason why we should place this construction upon it.” De Walt v. Bartley, 146 Pa. 529, 544, 24 A. 185, 188 (15 L. R. A. 771, 28 Am. St. Rep. 814).

With much more reason should it be said that this broader construction should be given the word “inserting,” where the statute permits both the writing and the inserting of such name as does the statute here under consideration. To hold that the statute only permits the insertion of a name by writing is to nullify the amendment of 1907 and to convict the Legislature of doing a vain and useless thing when it amended this statute.

[6] Giving the amendment of 1907 a construction which permits the voter to insert a name not on the official ballot by pasting it thereon does not bring it in conflict with subdivision (11) of section 6.23 of the Statutes. It is the duty of the court to give the statutes such construction as will give force and effect to all provisions thereof. The portion of section 6.22 of the Statutes which was amended in 1907 is devoted wholly to giving information to voters. Section 6.23 of the Statutes, on the other hand, deals with a preparation of the official ballot and prescribes the duties of the officers who prepare and distribute the official ballot. The prohibition against pasting, contained in section 6.23 of the Statutes, is a prohibition directed to those officers, not to the individual voter. Voters, when they receive the official ballot on election day, have a right to rely upon the fact that the ballot is the official ballot with which they have become familiar through publication in the press. It would open wide a door for fraud if those in charge of the ballotcould paste a name or names over those upon the official ballot, especially in view of the well-known fact that so many voters place a cross at the head of the party column thereby signifying their intent to vote for all whose names appear in that column.

There are no reasons of public policy why an elector should not be permitted to paste a name on the ballot as well as to write the name thereon. There is no danger that any fraud would be perpetrated if pasting is permitted by voters, as there would be if election officials are permitted to do such pasting.

[7] The fact that subdivision (7) of section 6.23 of the Statutes does not provide for information upon the ballot itself, to the effect that the voter may insert names by other means than by writing, does not lead to the conclusion that the voter has no right to insert a name by pasting. If there is a conflict between these two provisions of the statutes, the amendment of 1907 must prevail, as it contains the latest expression of the legislative will.

To refuse to give effect to the intent of the voters so clearly expressed by the use of these pasters would be to thwart and to defeat the will of the majority of the voters. The statutes contain no unambiguous expression of the legislative intent that requires the court to refuse to recognize the will of the people as expressed through the ballot box in this election.

[8] Viewing the statutes here in question as a whole in the light of well-established rules of statutory construction, the court concludes that the prohibition against the use of stickers upon ballots applies only to their use by those charged with the duty of preparing the official ballot and of distributing that ballot on election day, and...