State v. Hilmantel

Dixon, C. J. Section 7, ch. 445, General Laws of 1864, is admitted to be constitutional, and the only question is as to its construction and effect. This is a very important question. It is, whether it is a directory or compulsory statute — whether it is discretionary with the inspectors, the requirements as to affidavit and oath not being in all respects complied with, to receive the votes of persons whose names are not on the registry, or imperative upon them not to do so unless such requirements are strictly fulfilled. The allegation of the complaint is, that of the votes given and counted for the defendant in Milwaukee, an incorporated city, five hundred and forty-four and more were received from persons whose names were not on the register, no one of whom gave to the inspectors receiving his vote his residence within the district, either by his own affidavit or by the oath of a householder of such district. It is — 569 — furthermore alleged, that of those five hundred and forty-four votes, one hundred and forty-five were received from persons, no one of whom proved to the inspectors receiving his vote, by the oath of a householder of the district, that he knew such person to be an inhabitant of the district, nor did any one of them furnish the inspectors any proof upon oath that he was a resident of the election district. It will be seen from these statements, not that there was a total want of proof, or any attempt to evade the requirements of the act, but only that the proofs were in some particulars defective. It is not, therefore, a question whether the statute may be wholly disregarded or dispensed with by the inspectors, but whether, when an attempt is made in good faith to execute it, a mistake in the execution, or any departure, however slight, from the terms of the statute, will vitiate the proceedings and annul the votes so irregularly received. In other words, it is a question whether the voters are disfranchised by any such mere irregularity or error in the proceedings. This is the precise question, as I understand it. I say the precise question, because no fraud or intentional misconduct on the part of any one is alleged; nor is it alleged that there was any inherent disqualification in the persons who gave the votes. They were qualified electors of the district, entitled, under the constitution and laws, to vote at the election, except that their votes were not received in the form prescribed by the statute. As to one hundred and forty-five of them, the fact that they were inhabitants of the district was not proved before the inspectors; and as to the others, their particular places of residence within the district were not given. As to all of them, the inspectors may have acted upon their own knowledge of the facts, and thought that proof was unnecessary. Such being the technical, and, as it seemed to me, purely formal nature of the objections, I must say that I was surprised to hear counsel at the bar insist that those votes must now be rejected. I had not then examined the act, and — 570 — it was contrary to all my notions of tbe intention and effect óf election laws, derived from tbe decisions of this and other courts upon other statutes on the same subject. I supposed tbe question before tbe courts always was, who received tbe greatest number of votes for tbe office from tbe legally qualified voters, without regard to any matter of mere form or want of form in the receiving, canvassing or return of tbe votes; and that to bold tbe contrary would be, as has been very pertinently said, to place a higher value on tbe statute regulation, than on tbe right itself — to sacrifice substance to form. This construction of former statutes, that they were directory and not imperative, and therefore not jurisdictional on the part of the officers conducting tbe elections, is well known. Eor tbe sake of justice upon the facts here pleaded, I regret that this act does not admit of tbe same construction. It seems certainly a very severe regulation which excludes the votes of legally qualified voters under such circumstances. But on examining the act, I am satisfied that it cannot be so construed. It is essentially an imperative statute, and deprives the inspectors of all jurisdiction to receive tbe votes of unregistered voters, unless the conditions as to tbe affidavit and oath are fully complied with. And first, it is to be observed that there is a material difference between this and former statutes. They were regulations of the time and manner of conducting elections, designed for the government of tbe officers having charge of the polls. No duty was imposed upon the voters'except that of going to the polls and depositing their votes. It was considered that the voters ought not to forfeit their privileges or lose their votes by reason of tbe mistakes or misconduct of tbe officers, which it was oiit of tbe power of the voters to remedy or prevent. By this act, however, every voter is made or may become an agent in tbe execution of the law. Copies of the register as made by the board are filed in the office of the town, village or city clerk, and posted in some conspicu — 571 — ous place in tbe room in wbicb tbe meeting is held, so as to be accessible to any elector wbo may desire to examine tbe same or mate copies thereof. On tbe Tuesday preceding tbe general election, a meeting of tbe board of registry is bad at tbe place designated for bolding tbe polls of election for tbe purpose of revising, correcting and completing tbe lists. Any elector of tbe district whose name has been omitted, may appear at such meeting and cause tbe same to be entered upon tbe register. If be does not so appear, and still desires to vote, be must furnish tbe inspectors at tbe polls bis affidavit giving bis reasons for not appearing on tbe day for tbe correction of tbe register, and likewise prove by the oath of a householder of tbe district that be knows him to be an inhabitant of tbe district; and, if in an incorporated village or city, give bis residence within tbe district. In this matter of a voter whosé name has been omitted, and wbo has not appeared on tbe day for tbe correction of tbe register, tbe burden of answering tbe requirements of the law by furnishing tbe affidavit and proof is thrown upon tbe voter himself. He is presumed to know tbe law, and must go to tbe polls prepared to comply with its conditions; and if be does not, and bis vote is lost, it may, so far as it is tbe fault of any one, with justice be said to be bis own fault. It is in tbe nature of a penalty imposed by the law for bis neglect to do what is required of him. Tbe inspectors cannot receive bis vote, and, if they cannot, it cannot after-wards be received and counted by tbe courts. And next it is to be observed, that it is a negative statute. It has been said on very high authority, that negative words will make a statute imperative. Dwarris on Statutes, 715 (7 Law Lib., 55), and cases cited. The words of the act are: “No vote shall be received at any annual election in this state, unless,” &c. It is difficult to conceive any language more strongly imperative than this. Again, if we consider tbe mischief complained of, and tbe — 572 — remedy provided, it will be seen that the forms prescribed are of the very essence of the statute. It is entitled, “ An act to guard against the abuse of the elective franchise, and to preserve the purity of elections, by a registration of electors. ” Abuses cannot be guarded against nor rights preserved by statute, without resorting to proceedings more or less formal. Forms thus prescribed are the substance of the thing enacted. If we take, for example, the statute to prevent frauds and perjuries, commonly called the statute of frauds, what is it but the requirement of mere formalities? The agreement may have been made, the consideration fixed, and all the essentials of a valid contract exist, but the transaction has not taken on the outward form prescribed by the statute, and just as prescribed, and therefore it is void. The courts cannot dispense with the statute for the sake of what otherwise might be just in particular cases; but the rights of all must be determined according as they have pursued or failed to pursue the prescribed forms. The same observations might be made of numerous other enactments, and are true of this. The disability or disfranchisement is inseparable from the necessary protection ; perhaps it may be said that the protection can only be afforded by imposing the disability. Hold the act to be directory, and allow the electors to vote without their names being registered, and without the affidavit and oath prescribed in case they are not, the object of the legislature would be entirely defeated. The effect of such construction would be fatal to all protective legislation, and would leave the election laws precisely as they stood before this statute was enacted. For these reasons, I am of opinion that the demurrer to the complaint must be overruled. A motion is also made to make the complaint more definite and certain, because the names of the persons whose votes were illegally received are not given. Such a recitation of names in a complaint would be inconvenient and impracticable, — 573 — and there is no precedent for it. On the other hand, the authorities cited by the counsel for the plaintiff show that the form of statement adopted is the correct one. No greater particularity can be required now in the complaint, than was requisite under the old practice in the replication. A list of the names would be very convenient for the defendant in preparing for trial, and might sometimes conduce very materially to the ends of justice. What seems to me to be needed in such cases, is some legislation requiring the parties to furnish such lists a certain time before the trial takes place. I think the motion must also be overruled. By the Court — Ordered accordingly.