State v. Bush

• Decision Date: 10 October 1891
• Parties: THE STATE OF KANSAS v. W. O. BUSH
• Court: Kansas Supreme Court

27 P. 834

47 Kan. 201

THE STATE OF KANSAS v. W. O. BUSH

Supreme Court of Kansas

October 10, 1891

Motion for Rehearing.

PROSECUTION for improperly registering the name of a voter. The court below sustained the motion to quash the information, and discharged the defendant, Bush. The State appealed. This court, at its session in January, 1891, reversed the judgment of the district court of Butler county, and remanded the cause for further proceedings. (The State v. Bush, 45 Kan 138, et seq.) In due time the defendant filed his motion for a rehearing, which the court overruled, at its session in October, 1891.

Motion for rehearing denied.

E. N Smith, and Clogston, Hamilton, Fuller & Cubbison, for the motion.

John N Ives, attorney general, contra.

JOHNSTON J. HORTON, C. J., VALENTINE, J., concurring.

OPINION

JOHNSTON, J.:

Upon the original hearing, no argument or appearance in behalf of the defendant was made; but upon this application for a rehearing the defendant appears by his counsel and insists that the information filed against him is inadequate in its averments, and fatally defective in not charging a culpable intent. It is stated, in substance, that he was the city clerk of El Dorado, and that he unlawfully and feloniously registered J. N. Hanna as a qualified voter, when Hanna did not appear in person, or was not present in the office of the city clerk, giving his name, occupation, and place of residence, as the statute directs. It is stated that, at the hearing of the motion to quash, the county attorney informed the court "that there would be no effort made to show any fraudulent intent on the part of the defendant in the simple act of registering J. N. Hanna, who was at that time a resident, and otherwise a legal and qualified elector in the city of El Dorado, but who did not appear in person before said clerk on the day on which he was registered." It is also stated that the district court held that, unless "the defendant by his act intended to commit some wrong, either in registering a person not entitled to vote, or intending to injure or defraud a person with a right to vote out of his vote, or intending to injure or defraud some candidate before the election, that the defendant would not be guilty of violating the law;" and as none of these things were contended for by the prosecution, the motion to quash was sustained.

It is earnestly contended that it was not within the legislative intent to punish as for a felony every omission or failure of the officers to carry out the minute and minor details of the registration act, and that, although the prohibition of the act was general in its terms, it fairly embraced only the mischiefs which the enactment was intended to prevent. It is therefore urged that the information should contain statements showing a culpable intent on the part of the defendant to defeat the obvious purpose of the statute, or allegations of some acts or omissions of the defendant of a substantive character, necessarily resulting in the wrong or injury which the legislature intended to suppress. The writer hereof is now inclined to think that the allegations of the information are insufficient, but the majority of the court are of opinion that the language of the charge stating that the act was unlawfully and feloniously done characterizes it as a crime, and therefore the information is not so inadequate in statement as to be fatally defective. The court, however, does not decide, as counsel seem to think, that every departure from the letter of the statute comes within its prohibition and penalty, and therefore the hardships which counsel imagine will result from the enforcement of the act do not exist. It is true that the language of § 15 is sweeping in its terms, and, if construed with literal severity, would embrace the slightest departure from any direction or detail which the statute contains, however innocent and harmless the act or omission of the officer might be. It is evident from the provisions and penalty of the act that such was not the purpose of the legislature. The act is a general one, giving specific and minute directions and details as to the preparation for and the regulation of the registration of voters in cities of the first and second classes. Minute directions are given as to the various steps to be taken and the manner thereof, some of which are very important, while others are of less importance; and at the end of the chapter it is provided that if any officer shall neglect or refuse to perform any act required by the statute, and in the manner required by it, he shall be guilty of a felony, and punished by confinement and hard labor in the penitentiary, as well as to forfeit the office which he then holds. The legislature doubtless intended to impose upon the officers a faithful observance of the provisions of the act, with a view of carrying out its purposes; but it will hardly be contended that the legislature intended to visit so severe a punishment upon an officer free from any wrong intent, for some slight departure from an unimportant detail of the law, which does not and cannot operate to defeat its object. We may properly look at the mischief proposed to be remedied, and to some extent the severity of the penalty imposed, in determining the true legislative intent in framing the act.

It has been held that the purpose of the registration act is to preserve the purity of the ballot-box, by ascertaining in advance, by proper proofs, who are entitled to vote at an election, thus securing, ten days before the election, the full registry of all persons entitled to vote which registry can be examined and scrutinized by any interested party. (The State v. Butts, 31 Kan. 537, 2 P. 618.) Any substantive act or omission of an officer which appears to operate to defeat this purpose comes within the prohibition and penalty of the statute, but a strict compliance with a minor detail that could have no such effect was not intended to be punished as a felony. For instance, the act provides that, on January 1st of each year, the mayor and council shall procure and open a poll-book for each ward in the city. Would the inadvertent omission to furnish a poll-book until the following day subject these officers to imprisonment in the state penitentiary? The statute further provides that the poll-books shall at all times be kept in the office of the city clerk. If the clerk should take one book out for repairs after office hours, and return it in time for the opening of business the next morning, would he be liable to a felon's punishment? Again, the act...