State ex rel. Shaw v. Harmon

Fisk, J. On the 15th day of June an order was issued by.the chief justice requiring respondent, as county auditor of Morton county, to show cause before this court on June 20th, why a peremptory writ of mandamus should not issue commanding him to amend and correct the instruction cards required by law to be furnished by him to the election officers of the several precincts within his county, so as to'contain, among other things, the following instruction: “Where there are three or more candidates for the same office, the voter may vote for both first and second choice, but that a failure to vote a second choice will not affect the validity of the ballot for that office.” On the return of such order to show cause there was no appearance on behalf of respondent. Prior to making such application to this court relator applied to the attorney general to approve the same, which he declined to do, but expressly disapproved such application. The question involved being one publici juris, wherein is directly involved the sovereignty of the state and its prerogatives and the franchise rights of its citizens, it is well settled that this court may, in the exercise of its original jurisdiction, issue the writ prayed for as a prerogative writ on the petition of a private relator, even though the attorney general refuses to make the application or to approve the same. State ex rel. McDonald v. Holmes, 16 N. D. 457, 114 N. W. 367. Relator is a candidate for nomination for the office of attorney general of the — 515 — State' at the ensuing primary election, and he makes this application for himself and for all others similarly situated, and for and on behalf of all electors of the state, and his purpose, in brief, is to obtain from this court a construction of that portion of chapter 212, Session Laws of 1911^-relating to the subject of first and second choice voting at primary elections, it being his contention: (1) That the provisions in said act relating to the form of ballots and which provides that “there shall be printed above the names of the candidates for such office the following: Vote for both first and second choice for this office, . . .,” is not mandatory; (2) that a failure to vote for second choice does not invalidate the first choice vote for any office. The attorney general, more than a month prior to his application, having given an official opinion contrary to relator’s contention, which opinion has been generally published throughout the state, and there being grave doubts entertained as to whether second choice voting is made compulsory rather than permissive by' said act, it is of vital importance to the electorate of the entire state that the question be settled by this court in advance of such primary election, to the end that there may be uniformity of voting, and also" to avoid serious complications which might otherwise subsequently arise in counting and canvassing the votes and returns following such state-wide election. As stated by counsel for relator, it is not so important as to what the rule is as it is to have such rule settled in advance of the primary election. Section 621, Revised Codes 1905, prescribes that “each county auditor shall cause to be printed on cards, in large type, full instructions to electors as to the manner of obtaining and preparing ballots, and also containing a copy of §§ 683, 684, 8614, and 8615. ILe shall furnish ten such cards to the judges of election-in each election precinct, and the judges of election shall at the opening of the polls post at least one of such cards in each booth or compartment provided for the preparation of ballots, and at least three of- such cards in and about the polling place,” etc. Pursuant to this statutory mandate, respondent had prepared and was about to furnish such cards of instruction to the judges of election in the various precincts of Morton county, containing, among other things, the following: “When there are three or more candidates for the same office vote for both first and second choice, but do not vote for the same candidate -for both first- and sec — 516 — ond choice.” It will be observed that this language is similar to that employed in that portion of the act of 1911 relating to the form of ballot. We quote therefrom the portion to which we refer: “When there are three or more candidates for the same office for United States Senator or any congressional or state office, there shall be printed upon the ballot at the right of the name of each candidate for such office, a square in a column marked 'first choice’ and at the right of the 'first choice’ column a square in a column marked 'second choice.’ There shall be printed above the names of the candidates for such office the following: Vote for both first and second choice for this office.” This language is followed a little later on by a printed form of ballot in accordance therewith. If it is a sufficient compliance with the statute for the auditor to prepare such printed cards of instructions in the exact or substantial language of the state (§ 1, chap. 212, supra), prescribing the form of ballots, it would be unnecessary to require the furnishing of such cards at all. Section 621 aforesaid requires a card of “full instructions to electors as to the manner of . . . preparing ballots.” Manifestly, in view of the uncertainty of the question, such instructions should be explicit upon the point as to whether it is compulsory upon the voter to express both a first and second choice for officers for which there are three or more candidates. What is here said is for the purpose of answering any contention which may be made that respondent ought not to be compelled by mandamus to set forth in such cards of instructions, anything in addition to the language employed in said statute. However this may be, the crucial question in the case is of such transcendent importance to the electorate of the entire state that a mere technical rule of practice ought not to be permitted to stand in the way of a decision of such question on the merits. With these preliminary observations, we now proceed to construe chapter 212 in so far as it relates to first and second choice voting. It is important to notice that this statute nowhere expressly and directly commands the voters to vote for both first and second choice, and unless it can legitimately be said, that the legislature, by the indirect method of employing the language, “vote for both first and second choice,” in prescribing the form of the official ballots, thereby intended to lay down a positive rule making it compulsory for each voter to express a second choice under the penalty of rendering his first — 517 — choice vote a nullity, we are forced to the conclusion that relator’s construction of such statute is correct. We cannot believe that the legislature intended to make the voting for second choice compulsory. If such was the intent it could, and no doubt would, have been expressed in unmistakable language. The instruction to the voters directed to be printed on the ballots, “vote for' both first and second choice, . . .” if intended to be mandatory and compulsory should' have read, “you must vote for both first and second choice.” Why should we read into the instruction language making it mandatory or compulsory, rather than language making it permissivé and optional? Is it not more reasonable to suppose that the legislature intended this instruction to be interpreted as reading, “you may vote for both first and second choice,” than that they intended it to be interpreted, “you must vote for both first and second choiee,” especially when the legislature has wholly failed in any portion of the statute to declare what shall be the result as to the first choice vote in case a second choice is not exercised ? Is it not proper and reasonable to presume that the legislature would have in express language prescribed that the first choice votes should not be counted where there was no second choice vote, if such had been their intention? Section 648, Revised Codes 1905, being a part of the general election law and which is made applicable to primary elections by § 17, chapter 109, Laws of 1907, providing for primary elections, expressly provides the instances in which ballots shall be deemed void and the election officers directed not to count the same; and it seems but reasonable that the legislature would have laid down like rules in case of ballots containing only a first choice vote if it was the intent that such'vote should not be counted. But the history of our primary election law is quite conclusive in supporting the construction contended for by relator. At the time of the enactment of chapter 212 of the Laws of 1911, Washington was the only state, so far as we are aware, requiring compulsory second choice voting; the policy of the other states having primary election laws being to make second choice voting permissive and optional. In the state of Washington it is expressly made compulsory to vote both a first and second choice in certain instances. Section 18 of chapter 209, Laws of 1907 of Washington, being their primary election law, reads as follows: “In all cases where there are four or more candidates — 518 — of any political party for one state or congressional position, every elector voting at a primary election held under the terms of this act shall be required to designate one first choice and one second choice for each such position. No voter shall vote for the same person for first choice and second choice, and no voter shall, where there are four or more candidates for such nomination, vote for one person only, either as first or second choice, and no ballot so voted for one person only, for either first or second choice, or for the same person for both first and second choice,- shall be considered a complete ballot, but any ballot under said conditions, failing to show both first and second choice of different persons, shall not be considered or counted, for that office.” In the light of this express legislative mandate there can, of course, be no question as to the effect of a failure to vote for second choice, and the case of State ex rel. Duryee v. Howell, 59 Wash. 634, 110 Pac. 543, and other cases decided by that court, can, of course, throw no light upon our statute, which radically differs from the Washington statute in this one respect. It is a significant fact and most persuasive to our minds, that our statute was borrowed from the state of Washington with their § 18, supra, omitted. This is made apparent. from a comparison of the two statutes which are identical in many respects. This being true, the conclusion is irresistible that our legislature omitted § 18 of the Washington statute deliberately, and with the intention of not adopting that phase of the Washington .law making second choice voting compulsory. No other intent.is possible. But even were this not so, and if there were no side lights to aid us in the interpretation of our statute, we still would have no hesitancy in sustaining 'relator’s contention. The most that can be said to the contrary is that the words, “vote for both first and second choice,” are mandatory. Conceding, for the sake of argument, the correctness of this interpretation, it by no means follows that a failure to comply with such mandate would have the effect of nullifying the first choice vote. To so hold would be judicial legislation, for it would be reading into the statute something which is not there. When the legislature has studiously refrained from prescribing what the penalty shall be for- disregarding such mandate, is it the function of the courts to do so ? . Host clearly not. The courts are not warranted in assuming, from the language .employed,. any such -legislative 'intent. But we do not • deem the — 519 — language in question as employed in the statute, mandatory in the absence of a provision, as in the state of Washington, expressly minifying a first choice vote where a second choice is not expressed. Of course, as stated in 2 Lewis’s Sutherland on Statutory Construction, § 709, “if the statute provides that ballots which fail to conform to certain requirements shall not be counted, the command is imperative,” but the general rule, in the absence of' such a specific statutory mandate, is that courts will in general so construe election laws as to prevent the disfranchisement of voters by reason of irregularities and omissions of officials, or by reason of a voter’s failure to comply strictly with the law in preparing and marking his ballot. Ibid. This author in § 622 of his valuable work also says: “Statutes concerning the manner of conducting elections are directory unless the noncompliance is expressly declared to be fatal to the validity of the election, or will change or make doubtful the result. Provisions requiring ballots to be initialed by the judges of election, to be marked in ink, and to contain the name of the party or principle which the candidate represents, were held directory. But a provision that a ballot not conforming to certain requirements shall not be counted is mandatory.” See authorities there cited. The decisions of this court in Miller v. Schallern, 8 N. D. 395, 79 N. D. 865; Lorin v. Seitz, 8 N. D. 404, 79 N. W. 869, and Howser v. Pepper, 8 N. D. 484, 79 N. W. 1018, in so far as this point was passed upon, were bottomed on the express statutory mandate contained in § 684, Bevised Codes 1905, providing that any ballot not indorsed by the official stamp and initials shall be void and shall not be counted. The action in question, as we have above stated, contains no such provision with reference to ballots in which only a first choice vote is designated. See also Lankford v. Gebhart, 130 Mo. 621, 51 Am. St. Rep. 585, 32 S. W. 1127, where the court said: “When the statute requires that a ballot, on account of want of conformity to any particular provision of the law, shall not be counted, it is mandatory.” It is noticeable that the act in question contains no negative words — an additional reason for inferring the legislative intent to have been that it should be held .as merely directory and permissive, and not mandatory and working partial disfranchisement by such a forced construction of a statute of such indefinite and uncertain terms. The.words of the act in question, “vote for first and second choice for this office,” are not more in the form of a — 520 — command and therefore mandatory, than are the words, “vote for three” or “vote for four,” which are found toward the end of the- statutory ballot. If the former expression is to be construed as mandatory, the latter expressions should receive a like interpretation, yet, we believe, no one will contend that the latter expressions were intended to be other than permissive. The words we refer to are found opposite the offices of commissioners of railroads, justice of the'peace, and constable, in the statutory form of ballot. We are not unmindful of the fact that the supreme court of Idaho in the recent case of Adams v. Lansdon, 18 Idaho, 483, 110 Pac. 280, under a like statutory provision,, reached the conclusion that such statute was mandatory, and that a failure to vote for second choice rendered the first choice vote a nullity. In giving his opinion, the attorney general, no doubt, relied on this case. We have carefully read the opinions in such case, and, with due respect for the judgment of that court, we are, for the foregoing reasons, forced to disagree with both the reasoning and conclusion of the court on this point. It is apparent that the construction placed on the Idaho statute by the court did not meet with favor by the people, for, within a few months after such decision was made, the legislature of Idaho amended the law so as to permit optional second choice voting. We held in the recent case of Fitzmaurice v. Willis, 20 N. D. 372, 127 N. W. 95, in an opinion by the present chief justice, that “negative words are generally held to be mandatory,” and it was accordingly there held that the words, “no vote shall be received at any election in this state if the name of the person offering such vote is not on the register . . .,” were mandatory. But, as we have above stated, no negative words are employed in the act in question relative to first and second choice voting. The writ will issue as prayed for. Spalding, Oh. J., and Bruce, J., dissent.