State ex rel. Williams v. Moorhead , 96 Neb. 559 ( 1914 )

Fawcett, J.

This case is before ns on rehearing. For a statement of the nature of the case reference is made to onr former opinion in 95 Neb. 80. That the respondent is a conscientious official who desires to faithfully discharge the duties of Ms office, according to law and not otherwise, and that he has a due regard for the public importance of his office, is shown by the opening statement in his brief, wherein he says: “The respondent welcomes a judicial interpretation of his official powers and functions as election commissioner. To protect the purity of the ballot and the elective franchise was the purpose of the act creating this office by the late legislature. The entire state of Nebraska and all citizens who have regard to civic honor are interested in its enforcement. In assuming the responsibility of the office, being desirous to perform the duties and exercise only the legitimate powers and functions imposed, this respondent respectfully submits his reasons, and what he considers as the law governing his action, in refusing to register, as a qualified voter, the relator.” Recognizing the force of everything the'respondent has above said, we have carefully considered the entire act (laws 1913, ch. 36), but will refer only to such sections as we deem pertinent to this investigation.

Section 8 provides: “The election commissioner, the chief deputy commissioner and such other deputies and employees as the election commissioner shall designate as supervisors of registration shall be supervisors of registration in said cities and shall serve as the election commissioner may direct.” By this section it will be seen that the legislature recognized the fact that in a city of the size of Omaha there are a large number of election districts which, under the general supervision given to the election commissioner, would necessitate providing that officer with many deputies and assistants. The section also provides: “The election commissioner shall appoint an inspector for each election district.” The section then goes into detail and provides that the inspector shall be present in the polling booth during all elections, acting as the personal representative and deputy of the election commissioner in the election district to which he should be assigned by the commissioner; makes it the duty of such inspectors to enforce the laws relating to elections, to see that all proceedings are in accordance with instructions,, rules, regulations and laws, and to challenge any voter “whose name does not appear on the election register or-who he has reason to believe is impersonating a person whose name appears on the register or is attempting to-vote illegally;” to see that the judges and clerks obey the law in every particular and conduct the canvass of the-votes as provided by law and make prompt returns to the-election commissioner.

Section 9 provides: “The election commissioner, starting as soon as practicable after this law becomes effective and again on the first day of September of every year in which is held a general state election, by the aid and assistance of deputy commissioners appointed by him as. herein provided, not to exceed one for each district, shall visit every building in each city within said county wherein registration is required, and after diligent inquiry make-true lists by streets, wards and voting districts of the-name, age, occupation, place of occupation, residence and period of residence, at the time of taking of the canvass,, of every male person twenty-one years of age or upward or-who is or will be at the next ensuing general 'election a qualified voter. Said commissioner shall designate in such lists all buildings used as residences by such male-persons, in their order on the street where they are located by giving the number or other definite description of every such building so that it can be readily identified, and shall place opposite the number or other description of every such building, the name, age, and occupation of every such male person residing therein at the time of the canvass, which lists shall be used for checking, revising, and correcting registration.”

It scarcely needs comment to demonstrate the purpose-of this important section. After faithfully complying with its terms, the commissioner and his corps of deputies-would have in the office of the commissioner accurate data prepared by themselves of the actual residence of every voter in the city at the time of making their canvass. This data would be of valuable assistance to them in the discharge of their further duties as provided in the next ensuing section. It would effectually put a stop to wholesale registration by illegal voters on vacant lots and at ■street numbers that have no existence.

Section 10 provides that as soon as he completed the 'canvass, required by section 9, the election commissioner should provide for a new general registration of all voters in the county who may be required by law to register; that is to say, no attention should' be paid to former registrations made prior to the enactment of chapter 36. He is required by this section to furnish the. necessary records, “which records shall be known as the permanent registration register.” He is required to keep this register in duplicate marked respectively “original” and “duplicate;” the original to remain in his office and the duplicate to be the one taken to and used in the various election districts for election purposes. It also provides that any person properly registering as a voter shall not be required to again register unless he changes his residence. ■Such change of residence it is provided shall operate as a cancelation of his registration, and he must again register before he can be permitted to vote. It also provides that the office shall remain open during the usual business days •of the entire year for purposes of general registration and for the transaction of the business of the office. The last paragraph of section 10 will be referred to after we have considered section 12a..

Section 11 empowers an election commissioner, deputy commissioners, judges of election, supervisors of registration, and election inspectors to administer all oaths and •affirmations required or necessary in the administration •of the act.

Section 12 makes it the duty of the commissioner to cause records to be prepared for the registration of names and facts required by the act, these records to be known by the general name of registers, and to be so arranged as to admit of the entering under the name of each street or avenue of each election district the number of each dwelling on any such street, the registers to be ruled so as to have columns entitled so as to cover all the points of information required to be set out in making the registration of the voter.

Section 12a provides: “The election commissioner or the deputy commissioner acting for him shall receive the application for registration of all such legal voters as shall personally apply for registration at the office of the commissioner or other places designated for registration, who then are, or on the day of election next following the day of making such application will be, entitled to vote. Any person serving as supervisor of registration shall administer to all persons who may personally apply to register the following oath or affirmation, viz.: You do solemnly swear or affirm that you will fully and truly answer all such questions as shall be put to you, touching your place of residence, name, place of birth, your qualifications as an elector, and all other questions provided for by the laws of this state affecting your right to register and vote therein. They shall then examine the applicant as to his qualifications as an elector, and, unless otherwise provided herein, shall immediately, in the presence of the applicant, enter in the registers the statements and acts as above set forth, and in the manner following, viz.:” First. The residence. Second. The name of the applicant in full, and providing that the name shall be kept by streets and avenues as far as the same can be done. “Third. Under the column ‘Sworn’ the word ‘Yes’ or ‘No’ as the case may be. Fourth. Under the column of ‘Nativity’ the state, country, kingdom, empire, or dominion, as the facts shall be stated by the applicant.” Fifth. The color of the applicant. Sixth. The term of residence at the place indicated. “Seventh. Under the column ‘Naturalized’ the word ‘Yes’ or ‘No’ or ‘Native’ as the fact may be stated. Eighth. Under the column ‘Date of Papers’ the date of naturalization if naturalized, as the same shall appear by the evidence of citizenship or presented by the applicant in compliance with the requirements of this article. Ninth. Under the column ‘Court’ the designation of the court in which, if naturalized, such naturalization was done, as the same shall appear by the evidence of citizenship presented or submitted by the applicant in compliance with the requirements of this article. Tenth. Under the column ‘Qualified Voter’ the word ‘Yes’ or ‘No’ as the facts shall appear and be determined by at least two (2) of the said .supervisors. * * * Eleventh. Under the column ‘Date of Application,’ the month, day, and year when the applicant presented himself for registration. Twelfth. Under the column ‘Signature of Voter’ the applicant for registration shall be required to sign his name on both original and duplicate registers.”

Section 18 provides: “The commissioner shall, upon the personal application of any person entered upon the registration record, correct any error therein, or whenever informed of any such error and after due investigation he may correct such error, and for said purpose may summon witnesses and compel their attendance to appear be-, fore said election commissioner at his office to give testimony pertaining to the residence, qualifications, or any other facts required to be entered in said registration list, which testimony shall be transcribed and become a part of the records of his office.” It further provides that, if through any error of the election commissioner the name of any properly registered qualified voter failed to appear upon the election register of his election district, the inspector of election shall at the polling booth of such election district issue a certificate to such person which shall recite the facts and authorize the judges of election to receive his vote.

We will now give the concluding paragraph of section 10. We give it here for the reason that the duties therein enjoined upon the election commissioner are duties which are to be performed subsequent to the registration of the voters as provided by section 12a. It provides: “It is hereby made the duty of the election commissioner to verify the registration .in each election district, through the various inspectors, within the ten days next preceding each and every general state and regular city election and at such other times as the election commissioner iaay deem necessary, and he shall thereupon enter or cause to be entered the word ‘challenge’ opposite the name of any voter reported by said inspector as unlawfully registered, and such entry shall not be canceled nor the person so •challenged permitted to vote without evidence being produced in writing and filed with said commissioner or inspector showing the correctness of his registration, which evidence shall be in the form of an affidavit, the filing of which shall be entered thus ‘affidavit’ opposite the name of the voter so challenged, which affidavit shall be signed by the person challenged and by two regularly registered voters of the district and shall state facts sufficient to show the correctness of his registration. Whereupon such commissioner or inspector shall make entry ‘challenge withdrawn’ opposite the name of such voter. Upon the entry of any such challenge against a person whose name appears upon the registration records, the commissioner shall send a notice over his Signature, through the mail, duly stamped, to all such persons against whose names a challenge has been entered, at the address given upon said registration records, requiring such person to appear before the election commissioner or inspector to verify his registration under oath, and upon his failure so to appear "within one year thereafter, or to file with said commissioner an affidavit setting forth a good and sufficient reason for not appearing in person, and setting forth facts showing the correctness of such registration verified by two registered voters of the same district as such voter, the said registration shall be canceled. Two copies of the registration record of each district as it shall be made up and appear ten days before any election, shall be provided by said commissioner for the use of judges and clerks of election in their respective districts on election day, said' copies to be known as election registers.”

Considering these various sections , of the act in the order in which we have set them out, we think the intention of the legislature is made clear, and that the point urged in the briefs, as to whether the commissioner acts judicially or ministerially, is also made clear. In the performance of the duties prescribed by section 12a he or his deputy commissioner acts ministerially. In the performance of the duties prescribed by the last paragraph of section 10 his acts are quasi-judicial; and the same is probably time when acting under that portion of section 13 above quoted. The controversy in this case arises under subdivisions 7, 8, 9 and 10 of section 12a.. So far as the record before us discloses, the transaction of July 12, 1913, when the relator appeared at the office of respondent for registration, was a very informal affair. No. record was made of the application for registration or of the reasons why it was denied; nor was the oath administered by the commissioner. The evidence taken in the district court shows that the relator told the respondent that he was born in Ireland, that he came to this country with his father while still a minor, that his father was naturalized before he was 21, and that he himself was naturalized in Boston, Suffolk county, Massachusetts; that he told respondent that his papers were lost and had been for many years; that he lost them before he came to Omaha about 35 years ago; that he did not tell respondent when he was naturalized; that respondent asked him no questions about it; that when he told respondent that his naturalization papers were lost respondent stated to him that he could not register him without his papers, and for that reason refused. His testimony further shows that he had lived in Nebraska 36 years and had voted at all state, county and city elections during those years; that he had registered every year since the law requiring registration was first adopted; that he had never during any of those years been required to produce any documents of citizenship or declaration to become a citizen.

The question then is: What is the construction which should .be placed upon subdivisions 7, 8, 9 and 10 of section 12ft? We think the fair construction is that, when the applicant answers subdivision 7 “Yes,” the officer taking his answers to the questions being propounded is concluded by his answer. The fact that the applicant may not be able to give- the exact date when or the precise court in which he was naturaliz-ed, as contemplated by subdivisions 8 and 9, is not sufficient to destroy the force of his affirmative answer to subdivision 7. There are undoubtedly thousands of old men in this country who were naturalized in the early days of its settlement, but who have since lost their “papers” and could not now state when or by what court they were naturalized; and there are undoubtedly hundreds of thousands of men whose fathers were naturalized many years ago and before they were 21 years of age who have never seen' their fathers’ naturalization papers and liave not the remotest idea of when and where they were naturalized, but do know that years before their fathers died they had been voting as citizens of this country. We think the answer to subdivision 10, under the column “Qualified Voter,” so far as the act of registration is concerned, must be based upon the answer to subdivision 7; that when the applicant, Avho is under oath, ansAvers that he is a naturalized citizen, the record under subdivision 10 should show the ansAver “Yes” to the question as to whether or not he is a qualified voter, unless, in answering subdivisions 8 and 9, the evidence “submitted or presented” by the applicant, itself, shows that the ansAver to subdivision 7 is untrue. It is also clear from the Avording of subdivision 10 itself that the determination of the question as to whether the word “Yes” or the word “No” shall be entered is not for the determination of the commissioner alone. That fact must be determined by at least two of the supervisors. It was argued by counsel for relator that the commissioner cannot act in this capacity at all, but in this we think they are in error, as shown by the quotation above from section 8. The reason of the legislature for providing that this fact shall be determined by at least tAvo of the supervisors becomes apparent when we ■consider the requirements of section á of the act, which provides that the election commissioner shall appoint a ■chief deputy commissioner who shall be a member of a political party other than the one with which the election ■commissioner affiliates. That section also provides that the commissioner shall appoint such other deputies, inspectors of election, supervisors of registration, peace officers to serve at election, and such other assistants as may be necessary for the performance of the duties of his office, the registration of voters and the conduct of election in such counties, with the proviso that “such employees shall be divided between all political parties as nearly as practicable in proportion to the number of votes cast in said •county at the preceding general election for the office of governor by said parties, respectively.” Briefly, therefore, we think that under section 12a the registration officers are acting ministerially; that they are bound to record the answers as given by the applicant and enter under the column “Qualified Voter” “Yes” or “No” in accordance with the answers given by the applicant. If the answers of the applicant are falsely or fraudulently given, so that ha has secured a registration to which he is not entitled, the inspector for the election district, in which the applicant’s registration shows him to be a resident, has from then until the time the election commissioner is called upon to verify the registration in each election district, which shall be within ten' days next preceding each general election, to reach a conclusion as to whether there is any doubt as to the applicant’s right to vote. By the last paragraph of section 10 quoted above, it is made the duty of the election commissioner, through his various inspectors, to verify the registration, and when he has performed that'duty through his inspectors, if he has doubt about the right of any person whose name appears upon the registration lists to vote, it is his duty to “enter or cause to be entered the word ‘challenge’ opposite the name of any voter reported by said inspector as unlawfully registered.” When that word is entered opposite the name of any voter, it then becomes the duty of the commissioner to send the voter challenged a notice, over the signature of the commissioner, through the mail, duly stamped, requiring such person to appear before the election commissioner or inspector to verify his registration under oath, etc., and until the voter has made the showing required, so as to cause the entry “challenge withdrawn” to be made opposite his name, he cannot vote. Thus careful provision is made for the protection of the purity of the ballot, and a safeguard furnished against unlawful registration.

This brings us to the crucial point in the case, viz.: When a naturalized citizen fails to produce his naturalization papers or a certified copy of the record of his naturalization, may the election commissioner refuse to withdraw the “challenge” entered opposite his name? It is argued that the rule of the best evidence obtainable is the one to be applied, and that the fact of naturalization cannot be proved by parol. State v. Boyd, 31 Neb. 682, 710, with other cases, is cited in support of that contention. It is true that our opinion in that case so holds, ■ and Governor Boyd was ousted from the office of governor by this court; but our judgment was reversed by the supreme court of the United States in Boyd v. State of Nebraska, 143 U. S. 135, in which the citizenship of Governor Boyd was sustained upon oral proof, as shown in that opinion. While the rule contended for may be and unquestionably is the rule in proceedings before a court of judicature, in the absence of a statute on the subject, it does not apply here, for the reason that the legislature, by the act under consideration, has determined the kind of proof required. By section 10, above set out, it will be seen that, when the commissioner has caused the word “challenge” to be entered opposite the name of any voter, such entry shall not be canceled nor the person so challenged be permitted to vote without evidence being produced in writing and filed with the commissioner or inspector, showing the correctness of his registration, “which evidence shall be in the form of an affidavit, the filing of which shall be entered thus - ‘affidavit’ opposite the name of the voter so challenged, which affidavit shall be signed by the person challenged and by two regularly registered voters of the district, and shall state facts sufficient to show the correctness of his registration. Whereupon such commissioner or inspector shall make entry ‘challenge withdrawn’ opposite the name of such voter.” This section goes on and provides further that when the entry of such challenge appears upon the registration records and the commissioner has sent notice, as shown by the quotation above ..given, for the voter to appear before him to verify his registration under oath, and he fails so to appear Avithin one .year thereafter, or to file with the commissioner an affidavit setting forth a good and sufficient reason for not appearing in person, “and setting forth facts shoAving the ■correctness of such registration verified by two registered voters of the same district as such voter, the said registration shall be canceled.” So that in tAvo places in this ¡section it is provided that upon the filing of an affidavit •setting forth facts showing the correctness of such registration, verified by two registered voters of the district, ■the challenge shall be withdrawn.

The proof thus required does not call for furnishing ■either his original naturalization papers or certified copies of the record thereof. It simply calls for the furnishing of an affidavit stating the facts that entitle him to vote, which, in the case of one not native born, would be that he has been naturalized or has declared his intention to become a citizen. The proof that his affidavit is true is not required to be the furnishing of his papers, but the affidavit of tAvo regularly registered voters of his district. But, it may be asked, what are the facts that must be sworn to by the voter in his affidavit and verified by two regularly registered voters in his precinct, which should be considered “sufficient to show the correctness of his registration?” Of course, the applicant may attach to his affidavit his naturalization papers; or he may state in his affidavit that his naturalization papers are lost and attach a certified copy of the record of the court in which he was naturalized. In either of such cases the proof would be conclusive. If, however, he is unable to furnish this documentary evidence, his affidavit should so state, and then set out such facts as are sufficient to satisfy a reasonable person that he is a citizen and entitled to vote. When such proof is furnished, the applicant would be able to protect himself against any erroneous refusal of the election commissioner to withdraw the challenge, by proper proceedings prosecuted in a court, of competent jurisdiction. We are unable to see how proof of this character will open the door to fraud where a naturalized citizen is attempting to register, any inore than it would if one claiming to be native born were making application. If upon his verification of the registration the inspector should report to the election commissioner that A. B., who is registered under section 12a as “native,” is not entitled to vote, for the reason either that he is not native born or that he has not lived in the, state, county or precinct for the required length of time:, it would be the duty of the commissioner to “challenge” him in precisely the same manner as he would challenge the naturalized citizen, in which casé each would be required to purge himself of the challenge in precisely the same manner, viz., by filing his affidavit signed by himself and by two regularly registered voters of his district. The only redress the state can have, or has ever had under similar laAvs, as against illegal registration and illegal voting, is under the criminal laws of the state.

This brings us to the judgment entered by the district court, which was that a peremptory writ of mandamus issue -therein against the respondent commanding him, as election commissioner in and for Douglas county, Nebraska, “forthwith, on the application of the relator, to receive the oral testimony, under oath, of said relator, for the purpose of establishing the relator’s citizenship by naturalization under the naturalization laws of the United States, and that the respondent accept said oral statements, under oath, as competent and sufficient evidence to establish the relator’s naturalization for the purpose of registering as an elector under the laws of the state of Nebraska.” The effect of this judgment- is simply that the respondent is required to proceed under section 12a by administering the oath to the relator, taking his answers-to the questions required by that section, and, for the purpose of registration, to accept his statements under oath as true and to register him as a voter. This judgment will not and does not attempt to preclude the respondent and his inspectors from investigating the relator’s right to register, or from challenging his right to vote, as provided in section 10, above set out.

After a careful consideration of the case, we are convinced that the judgment of the district court is right. Our former judgment is therefore vacated, and the judgment of the district court is

Affirmed.

Rose, J., not sitting.