Taylor v. Taylor

• Decision Date: 01 January 1865
• Citation: 10 Minn. 81
• Parties: NATHAN C. D. TAYLOR vs. JOSHUA L. TAYLOR et al.
• Court: Minnesota Supreme Court

10 Minn. 81

NATHAN C. D. TAYLORvs.

JOSHUA L. TAYLOR et al.

Supreme Court of Minnesota.

Appeal from order of district court, Chisago County.

L. E. Thompson, for appellants.

H. N. Setzer, for respondent.

WILSON, C. J.

The legislature by an act approved March 3, 1863, provided (subject to the approval of the electors of the county), that the county seat of Chisago County should be removed from Taylor's Falls to Chisago City. Session Laws 1863, p. 204. The law was submitted at the next general election to the electors of said county for their adoption, in pursuance of § 1, art. 11 of the constitution. The county canvassing board, to whom the returns of the election were made, declared and certified that said law was adopted by a majority of the electors. The plaintiff, being a resident and qualified elector of the county, thereupon gave notice that he would contest the validity of the election, and for that purpose commenced this action. Laws of 1861, p. 118, § 56. To the notice the defendants demurred, and the demurrer was overruled and judgment rendered for the plaintiff in the court below, and the defendants appeal to this court.

The points or grounds of contest set out by the plaintiff are: (1) that the election returns from four townships of said county were invalid on account of a non-compliance with the election laws by the officers of the election, and (2), that, admitting the returns to be valid, still a majority of the electors of said county did not vote in favor of the removal. Under the first head the plaintiff specifies several irregularities or errors which he claims render void the returns from and the election in several towns, and the canvass of the county canvassing board. It is not very apparent whether the plaintiff by this proceeding attempts to attack the returns, the canvass, or the election, but we take it for granted that he attacks the election, as well as the canvass and returns, this view being most favorable to his case.

The plaintiff in his notice of contest states that he "contests the validity of the said election, and specifies the following points on which said election will be contested, to-wit: "For the first point the said Nathan C. D. Taylor alleges, that the County of Chisago is divided into seven organized townships, to-wit: Chisago Lake, Franconia, Sunrise, Wyoming, Taylor's Falls, Amador, and Rushseba; that after the last general election there were transmitted to the county auditor of Chisago County certain papers purporting to be the election returns of the township of Chisago Lake aforesaid; that the said papers are in truth and in fact no election returns, but are fraudulent and void, for the reason the persons pretending to be the judges and clerks of said election did not take and subscribe the oath required by law, nor any other oath or affirmation whatever, and for the farther reason that no list of the qualified electors of the election district composed of said town of Chisago Lake was returned or enclosed or transmitted with the said papers purporting to be the election returns of the town of Chisago Lake, and that it appears from the papers aforesaid that there were no register poll lists at said supposed election whatever." Some or all of these errors are alleged to have existed and rendered void the returns from the towns of Franconia, Sunrise and Wyoming; and in Franconia it is alleged that Ansel Smith, who was a candidate for the office of representative to the state legislature, acted as one of the judges of election.

It was undoubtedly the duty of the county canvassing board to canvass the returns. Section 43, ch. 15, of the Laws of 1861, under which the election was held, provides that "no election returns shall be refused by any auditor for the reason that the same may be returned or delivered to him in any other than the manner directed in this act; nor shall the canvassing board of the county refuse to include any returns in their estimate of votes, for any informality in holding any election or making returns thereof." Here the duty of the auditor and canvassing board is plainly pointed out. It was not competent for them to undertake to decide whether the errors or irregularities complained of invalidated the election in the towns named. That was a question for judicial, not for ministerial officers — a question that could only be decided by a court that could call in witnesses, hear evidence, and decide questions of law and fact. Irrespective of the above statutory provision it is quite clear that this question could not properly be decided by the canvassing board. See O'Farral v. Colby, 2 Minn. [180]. The canvassing board, therefore, we think acted correctly in canvassing said returns, and their certificate is prima facie evidence of the facts therein stated and certified to. But that certificate is only prima facie evidence, and the district court in which this action was brought can go behind it and inquire as a matter of fact whether the canvass was fairly conducted, and whether the result of the election is truly set forth in the certificate; but the burden of proof is on the contestant (plaintiff) to show that there were irregularities and that they affected the result. Whipley v. McKune, 12 Cal. 352; People v. Cook, 8 N. Y. 67; 14 Barb. 259; Lanier v. Gallatas, 13 La. An. 175; State v. Mason, 14 La. An. 10; Bashford v. Barstow, 4 Wis. 567.

The facts stated in the notice being admitted by the demurrer, the question presented is whether these errors or irregularities rendered void the election in said towns. It will be observed that fraud is not charged, nor is it alleged that any illegal votes were polled or that any legal votes were excluded. The law requires the judges of election to take the prescribed oath and to keep register poll lists, and forbids a candidate at such election to act as one of the judges, but it is in no place provided that a failure to comply with the law in any of these respects shall make void the election. The public good demands that the will of the people as expressed at the ballot box should not be lightly disturbed. There is hardly an election held in any county at which in some town irregularities do not occur, and to declare every such election void would work a manifest hardship and injustice. If the votes of the citizens are freely and fairly deposited at the time and place designated by law, the intent and design of the election are accomplished. It is the will of the electors thus expressed that gives the right to the office or determines the question submitted, and the failure of the officers to perform a mere ministerial duty in relation to the election can not invalidate it, if the electors had actual notice and there was no mistake or surprise. See People v. Cook; Shepley v. McKune; Lanier v. Gallatas; Bashford v. Barstow; State v. Mason; Gorham v. Campbell, 2 Cal. 135; Andrews v. Saucier, 13 La. An. 301; State v. Elwood, 12 Wis. 551; People v. Pease, 13 E. D. Smith, 45; Carpenter v. Ely, 4 Wis. 420; In the Matter of the Mohawk and Hud. Riv. R. R. Co. 19 Wend. 143.

The plaintiff's counsel in his argument admits that as a general principal of law, statutes directing the mode of proceeding of public officers are merely directory, unless there is something in the statute itself which plainly shows a different intent, and refers to section 4 of the Election Law, which, after prescribing the duty of the town clerk to post notices of the time and place of holding the election, adds: "Provided, that no failure of any clerk to give notice of any election as aforesaid shall invalidate any election." The exception in this section, he insists, shows the intention of the law to invalidate an election for the disregard of any other prescribed formality or duty by the officers, applying the maxim, "Expressio unius est exclusio alterius." This is a principle or rule of logic as well as a maxim of the law of very extensive practical application, both in the construction of written instruments and verbal contracts, but great caution is requisite in its application. Broom's Maxims, 595; Eastern Archipelago Co. v. The Queen, 2 El. & Bl. 856-879; Price v. Great Western R. C. 16 Mee. & W. 244. The application of this maxim in this case seems forced and unauthorized. The rule of law has long been well settled that the failure of the officers of an election (as in this case) to perform their duties strictly as required by statute, does not invalidate the election.

It is certainly true as a matter of fact, and presumed to be true as a matter of law, that the legislature knew this rule; and we must suppose that if they had intended to change a rule of law of such practical importance, they would have done so directly and in unequivocal terms. By the provision in section 4 of the election law (above quoted), the law on that subject is not changed. The statute requiring that notice was directory, and the validity of the election did not depend upon the notice (People v. Hartwell, 12 Mich. 508; Marchant v. Langworthy, 6 Hill, 646); and it is a maxim of the law that "Expressio eorum qui tacitate insunt nihil operatur." If on account of the aforementioned errors in the election, the result of the vote was rendered uncertain in the towns designated, perhaps the returns from those towns should be rejected. Or if the election was attacked for fraud on this account, and it should appear that the errors were caused by a party interested, that perhaps would be prima facie evidence of fraud requiring satisfactory explanation. But as we above stated, the person attacking the canvass must in every case show that there was error, and that that error affected the result or rendered it uncertain. The plaintiff has not pretended to do either in this case.

It is not necessary for us to particularize in this case. All the errors complained of under the first head, fall within the same principle, and are covered by the...