State Ex Rel. Wright v. Spires

MANNING, J. The particular provision of the charter of Elizabeth City p'ertinent to the question presented by this appeal is section 22, chapter 290, Private Laws 1909, and reads as follows: “All ballots shall be printed or written, or partly printed and partly written, upon white paper, and shall be without device, mutilation or ornamentation, the. size of the ballots to be fixed by the board of aldermen at same meeting at which election is called.” Section 25 contains the following dire'ctions to be observed at the count of the ballots: “And if there shall be two or more ballots rolled up together, or any ballot shall contain the names of more persons than the elector has the right to vote for, or shall have a device or ornament upon it, in either of these cases such ballot shall not be numbered in taking the ballots, but shall be void, etc.” *6 It will be observed that these sections of the charter of Elizabeth City are nearly identical with sections 4344 and 4347, Revisal of 1905. This section 25 of the charter and 4347 of Revisal particularly specify the classes o'f ballots to be excluded from the enumeration and to be declared void; but in these classes of ballots to be rejected are not specified those varying in size from the prescribed size. This defect must, we think, therefore be regarded as an irregularity, that will not avoid the ballots, unless the difference in size is so pronounced as possibly to be regarded a device, and, as such, to be condemned and rejected. Baxter v. Ellis, 111 N. C., 124. In Paine on Elections, sec. 454, it is held a ballot, written or printed on colored paper, cannot be received, under a statute requiring all ballots to be “written or printed on plain white paper.” State v. McKinnon, 8 Ore., 493. In Kerr v. Rhodes, 46 Cal., 398, the Court says : “A ballot cast by an elector in good faith should not be rejected for failure to comply with the law in matters over which the elector had no control, such as the exact size of the ticket, the precise quality of the paper, or the particular character of type or heading used, where the law has provisions to that effect; but if the elector willfully neglect to comply with requirements over which he has control, such as seeing that his ballot, when delivered, is not so marked that it may be identified, the ballot should be rejected.” In McCrary on Elections, sec. 190, the learned author says: “If the statute expressly declares any particular act to be essential to the validity of the election, or that its omission shall render the election void, all courts whose duty it is to enforce such statute must so hold, whether the particular act in question goes to the merits, or affects the result of the election, or not. Such a statute is imperative, and all considerations touching its policy or impolicy must be addressed to the Legislature. But if, as in most cases, the statute simply provides that certain acts or things shall be done, within a particular time or in a particular manner, and does not declare that their performance is essential to the validity of the election, then they will be regarded as mandatory if they do, and directory if they do not, affect the actual merits of the election.” DeBerry v. Nicholson, 102 N. C., 465; Hendersonville v. Jordan, 150 N. C., 35; Younts v. Comrs., 66 S. E. Rep., 575; DeLoatch v. Rogers, 86 N. C., 357. We do not think, therefore, that the difference in the size of the tickets used by the electors, in casting their votes for the *7 relator, from the prescribed size, was such difference as rendered void the ballots so cast; and we conclude that his Honor’s, rulings were correct, and in the trial there was N No error.