Lane v. Fern

OPINION OF THE COURT BY PERRY, J. (HARTWELL, C.J., DISSENTING IN PART.) Briefly summarized, and subject to qualifications hereinafter mentioned, the petition sets up three causes of contest: (1) that in a named precinct the polls were kept open until 6:30 o’clock on the evening of election day and that sixty-four ballots were marked, cast and accepted after five o’clock p. m.; (2) that while a large number of voters were in the polling house engaged in marking their ballots, or about to do so, one McCandless was present and handed pencils to numerous electors and by words and acts endeavored to influence the electors to vote for Bern, and that one Wolter was also present and “instructed” a number of electors “how to vote” and likewise by words and acts endeavored to influence the electors to vote for Bern; (3) that certain voters, their number not being stated, exhibited their ballots, presumably after marking them, to others, and that at times two or three electors were in the same compartment of the polling place marking ballots in plain view of each other. A further statement of the case is contained in the opinion of the chief justice. The demurrer presents two questions, among others, first whether up292 oil the allegations of the petition the court is without jurisdiction to hear the contest, and, second, whether a cause of action is sufficiently set forth. In the view that we take it will be necessary to consider both of these grounds. It is undoubted that the right to contest an election is purely statutory and must be determined in accordance with the statutes of the jurisdiction in which the question is raised. It is also true that the Hawaiian statutes on this general subject of contests have from time to time undergone change and that the powers of this court other, perhaps, than by writ of quo warranto, .¿re not as extensive as they were at times in the past. Beyond this we have not found a study of the former statutes of much assistance. The question still remains, what are the present powers of this court under the statutes now in force? That is a question of construction. This was an election held under Act 118 of the laws of 1&07, “Incorporating the City and County of Honolulu.” The direct source of the authority for the conduct of the election and for any contests arising under it is that act; and so also the source and the limits of our jurisdiction in this' case are to be found in that act and in other acts by it made applicable. Section 40 of Act 118 provides that “The general laws and rules governing the election of senators and representatives of the Territory shall apply in the election of city and county officers, wherever applicable, except as herein provided.” Those general laws and rules are to be found, in the main, in chapters 7, 8 and 9 of the Revised Laws. Sections 56 and 57 of Act 118 read as follows: “All questions as to the validity of any ballot cast at any election held under this Act shall be decided immediately and the opinion of the majority of the Board of Inspectors of Election at each polling precinct shall be final and binding, subject to revision by the Supreme Court of the Territory as hereinafter provided.” “Any candidate directly interested, or any thirty duly qualified voters of any Election District may file a petition in the Supreme Court of the Ter — 293 — ritory setting forth any cause or causes why the decision of any Board of Inspectors should be reversed, corrected or changed.” While petitioner contends to the contrary, it may be assumed for the purposes of this opinion that section 51, adding nothing in this respect, to Section 56, grants no power to this court to consider questions which the inspectors could not have lawfully considered. It was so held in Kanealii v. Hardy, 11 Haw. 9, 12, the court saying, “And likewise the supreme court, in revising any such decision of a board of inspectors, could not consider questions which the board itself could not consider. Section 41” (Section 51) “limits the petition for such revision to causes for reversing, correcting or changing the decision of the board.” This assumption is, in other words, that the “decision” mentioned in section 51 is the same decision, and no. other, referred to in section 56. It may be assumed also, as is probably the case, that the decision contemplated in these two sections must be “as to the validity of any ballot” and not as to any other cause for invalidating an election, as, for example, not as to any defect in tire nomination of the candidate nor as to the latter’s eligibility. It may be assumed still further that the causes of invalidity cognizable by the inspectors are simply those mentioned in Sec. 94, R. L., — although perhaps that view is not capable of as much support in the construction of section 56 as it would be in the case of the construction of section 95, the language, of which, with the exception of the provision as to revision by the supreme court, is the same .as that of section 56, for of section 95 it can be said, as it can not be said of section 56, that .it is a part of the same act as section 94 and immediately follows it, whereas section 56 is in a separate statute and, at first reading, at least, might not appear to be limited to section 94 by continuity of thought or expression. Nevertheless, with all of these assumptions, we think that the decisions of the inspectors, if decisions within the meaning of the statute were made (that sub — 294 — ject is treated below), were “as to the validity of ballots,” both with reference to the sixty-four cast after five o’clock and with reference to those which had been exhibited by voters. Sec. 94, R. L., reads as follows: “If more names are voted for on a ballot than there are offices to be filled; or “If on a ballot for representatives a larger number of votes are marked, than the law authorizes; or “If a ballot contains any mark or symbol whereby it may be identified, or any mark or symbol contrary to the provisions hereof; or “If two or more ballots are found in the ballot box so folded together as to malm it clearly evident that more than one ballot was put in by one person; or “If a ballot in any other way be contrary to the provisions hereof; then such ballot and all it contains must.be'rejected. “But no ballot shall be rejected for containing a less num- . ber of names voted for than the law authorizes. “Each ballot which shall be held to be invalid as aforesaid shall be indorsed on the back by the chairman of inspectors, with his name or initials, and the word, ‘rejected’.” This was originally section 108 (C. L., Appendix, p. 821) of Rules and Regulations for Administering Oaths and Holding Elections, promulgated by the president with the approval- of the cabinet, under section 79 of the Constitution of the Republic. The word “hereof,” in paragraph five of this section, clearly refers, as we think, not to the section itself, but to all of the rules and regulations so promulgated as one document, otherwise the words in the same paragraph “in any other way” become meaningless, for "the “ways” of the paragraph itself are each and all specifically set forth. The expression • “in any other way” was certainly intended, to' add to that specific list “ways” in which a ballot might be contrary to the provisions mentioned. Nor do we find ourselves able to construe this subdivision or paragraph as referring solely to defects on the face of the ballot itself, such as improperly placed crosses, — 295 — blots and marks of identification. Such markings and other physical defects on the paper itself had already been mentioned in that section. Ballots may be “contrary to the provisions hereof” for reasons other than improper marks or physical defects. A few illustrations may be of assistance. The Organic Act, in section 14, names a day in each two years when the regular election is to be held. If one or more ballots, otherwise valid, should, after midnight at the end of election day, be prepared and offered to' inspectors tO' be deposited in the ballot box, would they not .be invalid, and would it not, under section 94, be within the power and duty of inspectors to so decide and refuse to permit the voters to cast them? If in a precinct having in full operation a lawful polling place fifty voters, for whom lawfully prepared blank ballots had been surreptitiously secured, should mark the ballots im a saloon or other unauthorized place, and if shortly before closing time a box containing those fifty ballots should be presented to the inspectors at the lawful polling place with the request that the votes so furnished be counted, would not those votes, although in every way correctly marked, be invalid, and. would not the inspectors be justified and required, if they did their duty, to then and there so adjudge and reject the attempted ballots? If ballots, in every other way regular, should be offered by women or by persons obviously minors would not the same action be proper and. requisite? We cannot bui¿ think that these questions .answer themselves. In each such instance the ballot would be “contrary to the provisions hereof.” Not every piece of paper correct in color and apparently correct in form is a valid ballot. The time and the place of the marking and the casting, and the identity and the qualifications of the person offering it may all be, under the particular statutes in force, elements essential to rendering it a valid ballot. In our opinion the fact that a ballot was prepared and cast after five o’clock presents an issue of validity or invalidity to be determined, in view of the provisions of the statute. So also — 296 — does the fact that the voter (not disabled, under Sec. 89, R. L.), after marking his ballot, and before casting it, wilfully exhibits it to another. How these two questions of alleged invalidity should be determined, whether for or against the contentions of the petitioner’, is a wholly distinct, matter. ' Both were questions capable of being “decided” by the inspectors one way or the other under section 56 of Act 118. But it is said that it does not appear from the petition that the inspectors made any “decision” concerning the ballots claimed to have been exhibited. Whether or not it can be held that there was a decision relating to the ballots the exhibiting of which was not seen by or known to the inspectors at or shortly after the exhibiting, need not be determined on this demurrer. It is a question which has not been argued and which may not arise at the trial. Since, however, the petition is held amendable in certain respects, it becomes necessary, in order not to encourage the petitioner to return into court with an amended petition simply to be then told that the court in no event has jurisdiction, to consider further’ whether there was a “decision” of the inspectors as to those ballots the exhibiting of which was thus seen by or known to them. In our opinion there was. The mere acceptance of the ballots with such knowledge and the subsequent counting of them constitute decisions. No formality is required or contemplated by the statute. There is no requirement that the determination be reduced to writing. No set words, written or oral, are necessary. No words at all are necessary. Acts speak louder than words, and what more effective can there be as an announcement of the conclusion reached than the acceptance or the rejection, as the case may be, of a ballot? Eor example, the statute at least appearing to contemplate a closing of the polls at five o’clock and the polls having been kept open until 6:30, could any one have been misled or left in ignorance, after the ■acceptance and counting of the sixty-four ballots, as to the decision of the inspectors that those ballots were valid ? We think — 297 — not. The same is true of the acceptance and counting of the exhibited ballots, if the exhibiting was with the knowledge of the inspectors. It may be said that the use of the word “east” in the phrase in section 56, “all questions as to the validity of any ballot cast * * * shall be decided.,” shows an intent on the part of the legislature to confine decisions to ballots which are already in the box and excludes the legal possibility of a decision prior to the physical presence of the paper in the box. It seems to us that this position would not be sound. A ballot may be cast, within the meaning of this section, which is not yet physically in the box. It is cast when the voter has exhausted all reasonable efforts to have it placed in the box. Inspectors certainly are not compellable, closing their eyes to irregularity and to all glaring causes of invalidity, to accept every paper offered as a ballot and put it in the box. If a voter after receiving a blank ballot openly and defiantly leaves the polling place and marks his ballot outside at the dictation and in full view of a candidate, and then offers to place his ballot in the box, or if such offer be made by a person who admittedly has already cast on the same day a ballot in the same precinct, or by an alien, or by a woman, or by one indisputably a minor, — in every such instance inspectors may then and there “decide,” within the meaning of the statute, that the ballot is invalid and may reject the same. That is one of the things that they are there for. The legislature so intended. It would be proper practice, undoubtedly, in such cases, for the inspectors after marking them for identification to set aside and preserve, for possible use in this court on a contest, all such ballots; but the fact remains, as we think, that the decision contemplated in the statute may take place before, as well as after, the physical presence of the paper in the box. The absence of any provision requiring the marking of rejected ballots for identification, whether such rejection takes place before or after the placing of the paper in the hox, d.oes not militate against this view. A “decision” — 298 — may be with reference to ballots which after as well as before the decision are unidentified and whether such lack of identification results from mistake, design or impossibility. Section 62 of Act 118 evidently contemplates the occurrence of cases such as these “where a correct result cannot be ascertained because of a mistake or fraud on the part of the inspectors.” The mere acceptance, .therefore, of the ballot and the placing of it in the box, if done with knowledge of the exhibiting, was a decision within the meaning of the law and subject to revision by this court. It is further said that there was no decision concerning the exhibited ballots because there was no “question” within the meaning of section 56. It will be recalled that that section provides that “all questions * * * shall be decided.” The word “question” is ordinarily used in at least two • senses, as denoting (1) an issue expressly raised by the parties to a judicial proceeding and to be determined by the court, and (2) an'issue capable of being raised, although not raised. Both are familiar uses of the word. In which sense was it used here? We think the latter.. All proceedings at polling place's on election day are necessarily more or less informal; At times at least in the day there is great stress of work and but little time for formalities. Trained lawyers are not expected to take part in the conduct or watching of elections. In the great majority of cases the candidates and agepts who attend .1» watch proceedings are without knowledge of the technical procedure required in courts to raise a question within the first meaning of the word above mentioned. No procedure is prescribed in the act for noting exceptions or for keeping a record of the raising of questions, this of itself indicating that questions in that sense were not contemplated by the legislature. No right is secured by the statute to watchers to examine ballots for improper marks, etc., before the making of a decision thereon by the inspectors. It would be 'unreasonable to hold, under the circumstances, that men who have no opportunity (what is — 299 — done by mere courtesy is immaterial) secured by the law of right to malee siich examination and to ascertain causes of invalidity must specifically raise questions or be thereafter barred from the right to: a revision by the supreme court. If this is the correct view. concerning defects on the face of the ballots it must be so also concerning other causes of invalidity. The word “question” 'must have one and the same definition in all instances. We can see no room for a distinction in that respect between one class of causes and another class, or any necessity or justification for requiring any more formal, more definite or. different “question” concerning exhibited ballots than concerning any other ballots. It would be impracticable, further, to hold that “questions” refers, in some classes of cases, to a mental state or process in the minds of the inspectors, — that it is essential, in other words, that the inspectors in counting each ballot observe the alleged ground of the invalidity. If it were so' held, would, a distinction be made, as to the power of this court to review, between markings which were observed by inspectors and markings which were not ? Would it be made a question of fact, in each instance determinable upon the evidence of the inspectors ? And how would, the jurisdiction be affected, for example, by a failure of memory on the part of the inspectors as to whether or not they had at the time observed the possible defect ? In our opinion, by receiving and also by counting the ballots cast after five o’clock and the exhibited ballots, if with knowledge, the inspectors decided, favorably to the voters, the “question” of the possible invalidity .of those ballots and those decisions are now “subject to revision” by this court under section 56, upon a petition duly filed, under section 57. Were the ballots cast after five o’clock invalid? R. L., Sec. 78, prescribes that “The polls shall be opened by the inspectors at 8 of the clock upon the morning of the election day, and shall be kept open continuously until 5 of the clock in the afternoon of said day, unless all of the registered voters of the precinct shall — 300 — have polled their votes previously to that time, after which the polls shall be closed and the votes counted as in this chapter provided.” It may be noted in passing that while it is required that the polls be kept open until five o’clock, there is no express prohibition that they may not continue open after five o’clock. It is, indeed, provided that the votes shall be counted ■after five, but how much after or whether immediately after is not stated. It may be that it was not even an irregularity to receive the sixty-four votes, particularly if, as in Kulike v. Fern, 19 Haw. 278, the voters were all within the polling ifface before five o’clock. However that may be, and even if there was an irregularity the ballots were in our opinion not illegal. The provision is directory only. There is no penalty for its violation save such as may be found in chapter 9, relating to Offenses against Election Laws, by way of fine or imprisonment for the offending inspectors or, possibly, any one inciting them to the commission of the offense. There is no provision that votes cast after five o’clock shall not be received or shall be invalid. The object of the election was to obtain the free and untrammeled expression' of the will of the voters concerning the choice of candidates for the office of mayor. There is no contention that this end was not accomplished. Voting after five o’clock and until 6 :30 did not interfere with the desired expression of the voters’ choice. We do not mean to say that cases may not occur of a violation of the statute in this respect so gross, as, for example, the receiving of votes 'after midnight, as to require declaring the votes so received, and perhaps the whole election, void. But this is not such a case. The authorities on this subject are not in entire accord. The weight of reason is in support of the view just presented. While statutes differ in different jurisdictions, and while, therefore, not as much aid is to- be derived from decisions elsewhere as might otherwise be the case, still a few quotations will not be out of place. “If the law itself declares a specified irregularity to be fatal, — 301 — the courts will follow that command, irrespective of their views of the importance of the requirement. In the absence of such declaration,' the judiciary will endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to- vitiate the entire return; otherwise it is considered immaterial.” Bowers v. Smith, 111 Mo. 45, 61, 62. “Where there has been a fair and free expression of the popular will, a mere irregularity in conducting 'an election will not invalidate it.” Clark v. Leathers, 5 S. W. (Ky.) 576, 578. “But if, as in most cases, that 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.” McCrary, Elections, §225. “It does not appear that these irregularities had any effect upon the voting, the counting or the- returns, 'and consequently, for present purposes they are immaterial.” Lehlbach v. Haynes, 54 N. J. L. 77, 81, 82. “The particular hour in the day is not the essence of the thing required to be done. Should inspectors on a cloudy day, and misled by a defective timepiece, close the polls a few minutes before sundown, or receive a few votes after that hour, if the time of the day be of the essence of the thing, the whole election for that district would be void. I cannot subscribe to this doctrine. I think the statute is directory.” People v. Cook, 8 N. Y. 67, 92, 93. “A statute is to- be regarded as directory merely if the directions given to accomplish a particular end. may be violated and yet the given end be in fact accomplished, and the merits of the case unaffected, and this rule is applied where the statute gives directions, as to the manner of holding elections; but the same rule cannot be applied to the constitution of the State.” Varney v. Justice, 86 Ky. 596. “It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and, from the current o-f authority, — 302 — the following may be stated as the approved rule: All provisions of the election law are mandatory if enforcement is sought, before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void.”- — Jones v. State, 153 Ind. 440, quoted and adopted in Willis v. Kanealii, 17 Haw. 243, 247. See also McCrary on Elections, §227; Cleland v. Porter, 74 Ill. 76, 78, 79; Patton v. Watkins, 131 Ala. 387 (31 So. 93, 94); Holland v. Davies, 36 Ark. 446, 450; and Fry v. Booth, 19 O. St. 25, 27. We think that the allegations in the petition concerning the receipt of votes cast after five o’clock are immaterial. As to' the ballots exhibited, Sections 87 and 88 of the Revised Laws read as follows. “No voter shall exhibit his ballot to any other person, nor shall any person look at or ask to see the contents of the ballot of any voter, except as provided in section 89; nor shall any person within the space set apart for a polling place attempt to influence a voter in regard to whom he shall vote for. When a voter is in the balloting compartment for the purpose of marking his ballot, no other person shall, except as provided in section 89, be allowed to enter the compartment or to be in a position from which he can observe how the voter is marking his ballot.” “No person shall take a ballot out of the polling place; and if any person having received a ballot shall leave the polling place without first delivering the same to the inspector of election as provided in this chapter, or shall wilfully exhibit his ballot except .as provided'in section 89, after the same shall have been marked, he shall thereby forfeit his right to vote, and the — 303 — chairman of inspectors shall cause a record to be made of such proceeding.” Differing from the subject of the time of the closing of the polls, this provision is express and unambiguous that a voter who shall wilfully exhibit his vote to another “shall thereby forfeit his right to vote.” It is precisely as though the language were that the vote “shall not be counted” or “shall be invalid.” The language is too clear for construction or argument. It is mandatory. The disregard of the provision may well, and ordinarily does, interfere with that free and untrammeled expression of the will of the voters which, as above noted, it is the main object of the law to secure. The secrecy of the ballot is an essential part of the whole scheme of our election laws. It is essential to its purity. It would be an undoubted incentive to' bribery and fraud to have it .known that a briber could call on the bribed to prove by exhibiting his ballot just before casting it that he was performing his part of the contract. This consideration, to be sure, would not confer jurisdiction on this court if none were otherwise conferred by the statute, but it tends to show, with other considerations, that the provision is mandatory and that its violation renders the ballot invalid, and that therefore, under paragraph five of section 94, the ballot is “contrary to the provisions hereof.” “Every positive requirement, therefore, which, if disobeyed, would necessarily defeat this object” (the secrecy of the ballot) “should be held mandatory.” Hall v. Schoenecke, 128 Mo. 661, 669. “I am aware that many cases may be cited in which powers relating to the method of conducting elections are held directory. But certainly the better authorities and the better reasoning do not justify the counting of a ballot which by the tenor of the act it is provided shall not be received.” Attorney General v. May, 99 Mich. 538, 559. See also McCrary, Electioná, §227, and Attorney General v. McQuade, 94 Mich. 439, 440, 443. It remains to be noted that under sections 87 and 88 the — 304 — exhibiting must be done wilfully in order to cause a forfeiture; that the exhibited vote must have been seen by another, a vote not being exhibited within the meaning of the law which is merely held, so that another can see, who does not in fact see; that in order to support a cause of action there must have been fifty-two or more invalid votes; and perhaps, also, although upon this question no* opinion is expressed, that in order to a “decision” concerning exhibited ballots the exhibiting must have been seen by or known to the inspectors at or shortly after the time of the occurrence. The reason for the requirement concerning fifty-two invalid votes is obvious. If the total number of invalid votes is less than the majority of the successful candidate it may well be assumed at the threshold that they were cast for the respondent, for the result of the election will still remain the same. Swepston v. Barton, 39 Ark. 549, 557. None of these matters mentioned in this paragraph are alleged in the petition. The petition, however, is capable of amendment as to all of them if the facts justify that course. G. A. Davis, A. F. Judd, B. W. Breckons and G. S. Gurry for petitioner. W. W. Thayer and G. W. Ashford for respondent. The alleged acts of McCandless and Wolter, in so far as they were contrary to the law, do not of themselves invalidate the election or any of the votes cast. The statutes do' not so provide expressly and must therefore, within the rules above mentioned, be regarded as directory. The remedy, if any, is by fine or imprisonment under chapter 9 of the Revised Laws. It need scarcely be added that such conduct is highly reprehensible and ought to be punished if the law permits it. In our opinion the demurrer should be sustained on the ground, not that the court is 'without jurisdiction, but that the facts averred do not constitute a statutory cause of contest, with liberty to the petitioner to amend within ten days if so advised.