State v. Keating
| Citation | 163 P. 1156,53 Mont. 371 |
| Decision Date | 23 March 1917 |
| Docket Number | 3974. |
| Parties | STATE EX REL. FENNER v. KEATING. |
| Court | United States State Supreme Court of Montana |
Original action in quo warranto by the State of Montana, on the relation of William D. Fenner, against William Keating. Demurrer to complaint sustained, proceeding dismissed, and respondent confirmed in his office.
Maury & Wheeler and James M. Hinkle, all of Butte, and Edward Horsky of Helena, for appellant.
E. G Toomey and Galen & Mettler, all of Helena, for respondent.
Original action in quo warranto by the relator to have determined his title to the office of state auditor. The relator and the respondent, both eligible to hold the office, were respectively the duly nominated candidates of the Republican and Democratic parties to be voted for at the election held on November 7, 1916. There was also a candidate of the Socialist party, but the vote cast for him was so relatively small that reference to it may be omitted. The basis of the relator's claim as set out in his complaint may be stated, in substance, as follows: According to the returns as finally canvassed, the relator received throughout the state 73,184 votes, and the respondent received 73,845 votes--an apparent majority for the respondent of 661. Among the votes so cast and counted are those cast by means of voting machines in 28 of the 68 precincts of Silver Bow county whereof the relator received 3,690 and the respondent 5,125 all of which should be rejected as illegal because not cast by ballot as required by section 1, art. 9, of the Constitution, and because the machines, if their use can be constitutionally proper, do not comply with the statute which assumes to authorize them. These votes eliminated, a majority for the relator of 774 is disclosed, thus vesting title to the office in him.
The first contention is that, since the section of the Constitution supra requires "all elections by the people shall be by ballot," every vote cast at an election must be by means of a piece of paper on which are printed or written the names of the persons voted for, with a proper designation of the office each is intended to fill, delivered to the judges of election; in other words, adopting the definition of the term "ballot" by the Supreme Court of Ohio, it means:
"A printed or written expression of the voter's choice upon some material capable of receiving and reasonably retaining it, prepared or adopted by each individual voter and passing by the act of voting from his exclusive control into that of the election officers, to be by them accepted as the expression of his choice." State ex rel. Karlinger v. Board, 80 Ohio St. 471, 89 N.E. 33, 24 L. R. A. (N. S.) 188.
This definition, if accepted as correct, would preclude any further discussion; but an acceptance of it involves the rejection, as invalid, of the act of the Legislature authorizing the use of voting machines, and we must repeat that, in the case of statutes passed by the legislative assembly and assailed as unconstitutional, the question is not whether it is possible to condemn, but whether it is possible to uphold. We stand committed to the rule that a statute will not be declared unconstitutional unless its nullity is placed, in our judgment, beyond reasonable doubt. State ex rel. Hay v. Alderson, 49 Mont. 387, 142 P. 210, Ann. Cas. 1916B, 39. Several considerations compel the view that the statute can and should be upheld.
In the first place, the term "ballot" has a most interesting history, into which we need not enter further than to say that, from its origin as descriptive of voting by means of balls put into an urn, its primary significance has always been a method whereby the voter might cast his vote in secret, as distinguished from a showing of hands or viva voce wherein secrecy is impossible. See Ency. Britannica, under article Ballot, Voting, Voting Machines; also, cases cited below. The view that permanent recordation of the elector's choice on paper or anything else is an essential part of the process of voting by ballot finds no justification in etymology and scarcely any in the course of legislation having to do with the subject in this and other countries where such voting has obtained. But it is insisted that in Montana the matter was set at rest by the provisions of section 1018, p. 926, Compiled Statutes 1887, as follows:
The argument is that these provisions fix the meaning of "elections by ballot" as used in the Constitution and established beyond peradventure that paper is, and secrecy is not, a vital part of that meaning. The fact is that, when the convention met, the section quoted was not in force, having been superseded by the Australian Ballot Law (Session Laws 1889, p. 145) under which secrecy became compulsory; but the point about secrecy as an element of voting by ballot is not so much that it be compulsory as that it be possible, and therein lies a distinction between voting by ballot and voting by the Australian method. Conceding however, that by the section quoted and by the Australian Ballot Law as in force when the convention met, and by the course of legislation up to the enactment of the voting machine law, the idea of voting by ballot had its exposition in this community only in the form with which we are most...
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