Miller v. Pennoyer

Bean, J. This is a proceeding by mandamus to compel the respondent Geo. W. McBride, as secretary of state, in making the official canvass of the votes cast for presidential electors at the late election, as returned to him by the various county clerks, to abstain from counting certain votes alleged to have been illegally cast for Nathan Pierce, one of the candidates for electors norni — 372 — nated by the People’s Party, in consequence of his subsequent nomination by the Democratic Party and the printing of his name on the official ballot in more than one place, — that is, in both the People’s and the Democratic group of electors, — although there is no claim or pretense of fraud in such publication, or that Mr. Pierce’s name was unscratched on the ballot in more than one place, when cast by the voter or counted by the officers of election. In Oregon the law requires the voter to scratch out the names of those for whom he does not wish to vote, leaving untouched the names of his chosen candidates. The fact that this case was advanced out of its order, but recently submitted, and the necessity of an immediate decision, as well as the pressure of official business, renders it impossible for us to do more than to state briefly the position of each party, and the conclusion at which we have arrived after carefully examining the questions presented on this appeal. 1. By the act of 1891, commonly known as the “Australian Ballot Law,” it is made the duty of the several county clerks to prepare and cause to be printed on a certain character of paper, all ballots to be used, or voted, at any election held under the provisions of this act; and no ballots other than those so prepared and printed shall be used, circulated, cast, or counted at any such election. Section 49 of the act, which prescribes what the ballot shall contain, so far as material to the question before us, provides that the ballots shall be styled “official ballot,” and “shall state the number and name of the precinct and county they are intended for, and the date when the election is to be held; shall contain the names of all the candidates for offices to be filled at that election, whose nominations have been duly made and accepted as herein provided, and who have not died or withdrawn,, and shall contain no other names of persons, except that, in the case of electors of president and vice-president of the United States, the names of the candidates for president and vice-president may be added — 373 — to the party or political designation; the name of the city or town, or county, in which the candidate resides shall be added to the name of each candidate; the name of each person nominated shall be printed upon the ballot in but one place, but there shall be added opposite thereto the party or political designation, expressed in not more than three words for any one party, as specified in the certificate nominating him for the office. The names of the candidates for each office shall be arranged under the designation of the office, and in alphabetical order, according to surnames, except that the names of candidates for the offices of electors for president and vice-president shall be arranged in groups as presented in the several certificates of nomination. ” The contention for petitioner is, that the provision in this section that the name of each person nominated shall be printed upon the ballot in but one place, applies to all ballots, whether to be used in a state or presidential election, and the exception in the latter part of the clause quoted refers only to the arrangement of the names upon the ballot; while the contention for respondent is, that the object and design of the latter clause is to except candidates for presidential electors from the provision against repeating names, and to preserve the identity and unity of each electoral group or ticket “as presented in the several certificates of nomination, ” whether the several groups contain the same or different names. The proper construction of this section is indeed difficult to determine, and we have been unable to reach a conclusion satisfactory to all the members of the court. The majority of the court is of the opinion that in the light of the rule of construction that a limiting clause or proviso in a law is ordinarily confined to the last enactment (Friedman Bros. v. Sullivan, 48 Ark. 213; 2 S.W. Rep. 785), the better view would seem to be that the exception only relates to the manner of the arrangement of the names upon the ballot, and not to the provision that the name of each person nominated shall be printed upon — 374 — the ballot in but one place, and therefore the printing of ■■.the name of Mr. Pierce in both the People’s and the ! Democratic group of electors was contrary to the pro- > visions of the law. To the writer of this opinion, the better view would seem to be that the object and design of section 49, in the light of the entire act, is to preserve the identity of the electoral ticket or ballot of each party as a unit; for it is provided that the names of candidates for the office of electors “shall be arranged in groups as presented in the several certificates of nomination,” and that the “names of all the nominees of each party for electors may be upon the same certificate of nomination”: Section 34. It is also provided, in effect, that a nominee to fill a vacancy shall be treated and considered in arranging and preparing the ballot the same as the original nominee, and in his place: Section 44. Hence, when Mr. Pierce was nominated to fill the vacancy caused by Mr. Miller’s resignation, his name was, in legal contemplation, it seems to me, upon the certificate of nomination for electors by the Democratic Party, and was therefore one of the Democratic “group as presented in the certificate of nomination,” and was properly so printed on the ‘ official ballot. ” 2. But however this may be, and whatever may be the correct interpretation of section 49, we are all agreed that the mistake, if it was a mistake, in printing the name of Mr. Pierce on the “official ballot” in both the People’s and the Democratic group of electors, did not deprive the voter who cast such a ballot of the elective franchise, or the candidate for whom it was cast of the benefit of such vote. Under the law as it now exists, neither a voter nor a candidate has any control or voice whatever in the arrangement and publication of the names or forms of the ballot, and the voter is either compelled to vote the “official ballot” as prepared by the county clerk, or not vote at all. In such case, in the absence of an affirmative declaration in the statute that — 375 — a ballot containing the name of a candidate in more than one place is void and shall not be counted, we are unable to agree to the doctrine that an error of the county clerk in construing a doubtful provision of the law should disenfranchise a large number of voters who are in no way responsible for the error or mistake. And such is the effect of the decisions under similar ballot laws: Bowers v. Smith, 17 S. W. Rep. 761, and 20 S. W. Rep. 101 (16 L. R. A. 754); Allen v. Glynn, 17 Col. 338 (31 Am. St. Rep. 304; 15 L. R. A. 743; 29 Pac. Rep. 670); Northcote v. Pulsford, 44 L. J. C. P. 217. 3. The law is mandatory in the sense that it demands and requires the county clerks, in the preparation of the “official ballot,” to strictly comply with all its provisions; but not in the sense that a voter’s right to exercise its elective franchises will be lost because of some technical mistake of the county clerk in printing the names of candidates upon the ballot. Such a construction of the law would not only render an election invalid on account of an honest mistake of a county clerk, but would open the door to the gravest fraud. It would place the power in the hands of a dishonest officer to disenfranchise the voters of his county, as well as cause the defeat of any particular candidate. To defeat the will of the people, or a particular candidate, it would only be necessary to furnish the electors, or a part of them, with ballots slightly variant or differing from those prescribed by law. Unless the law is clearly mandatory, or in soma way declares the consequences of a departure from its provisions, the court ought not to defeat the will of the people, when fairly expressed, because of some technical error or mistake in the form of the ballot; and in this case there is no claim or suggestion of fraud on the part of any one, or that the returns now in the possession of the secretary of state do not correctly represent the will of the people as expressed at the polls. The public importance of this case, and our conclusions resulting as they do in an affirmance of the judg — 376 — ment, have induced us to consider it upon the merits; but in order to avoid misconception, it is thought proper to remark that it is exceedingly doubtful whether the question sought to be litigated can properly be determined in a mandamus proceeding against the state canvassing board, who do not have, and who are not entitled to, the possession of, or an inspection of, the ballots as printed or cast at an election, and hence this cannot be considered as a precedent upon that point. Affirmed.