State ex rel. Brewster v. Botkin

The opinion of the court was delivered by Marshall, J.: In this action the state, on the relation of the attorney-general, seeks to compel the defendant, the secretary of state, to prepare poll books and tally sheets for the primary election to be held on the first day of August, 1916, to be used for voters of this state absent from their townships and wards in the military service of the state and of the United States. The secretary of state refuses to prepare these poll books and tally sheets on the theory that there is no law requiring him to do this for the primary election. Article 4 of chapter 36 of the General Statutes of 1909 (§§ 3154-3177) makes detailed provision for those who are absent from their township or ward and employed in' the militia or volunteer service of the'state or United States to vote at the places where they may be stationed on the day of election for county, district or state officers, members of the legislature, members of congress, and electors for president and vice president of the United States. These provisions were made part of the statutes prior to the enactment of the primary election and the Australian ballot laws. By section 8 of chapter 204 of the Laws of 1915 the following became a part of the primary election laws of this state: “The provisions of existing statutes concerning elections, and any amendment now or hereafter made thereto, so far as the same are consistent with the provisions of this act, shall apply to the primary pro [695] vided for in this act, the intent of this act being to place the primary under the regulations and protections in all respects of the laws in force as to the general elections. That all of the powers and duties conferred and imposed by the law of this state upon commissioners of election, registration officers, judges, and clerks of election, canvassing boards, and all other public officials, and all laws relating to the registration, qualification, challenging and voting of electors, in connection with general elections are, in every detail and particular, conferred and imposed upon each and all of such officers in connection with primary elections conducted under the provisions of this act, except as herein otherwise specially provided.” It can not be successfully argued that article 4 of chapter 36 of the General Statutes of 1909 (§§ 3154-3177) does not apply to the Australian ballot law. The provision of the act of 1915 can be worked out under the primary election law the same as under the Australian ballot law. There is no more inconsistency under the one law than there is in the other. If full effect is given to this statute all the election laws of the state are a part of the primary election law. The statutes providing for absent soldiers voting at elections are a part of the election laws. By the operation of the act of 1915 the laws providing for absent soldiers voting must be a part of the primary election law. Being a part of the primary election law, it is the duty of the secretary of state to prepare the necessary poll books and tally sheets to be used at the places where these absent voters may be stationed on the day of the primary election, to be there used as required by article 4 of chapter 36 of the General Statutes of 1909. The qualification and registration of these voters must be governed by the general and primary election laws of the state, except that these absent electors may vote at the places where they may be stationed at the time of the primary election. The peremptory writ will issue.