Esquibel v. Chaves ( 1904 )

OPINION OF THE COURT.

POPE, J.,

1 (after stating the facts). — The conclusion which we reach in this case does not necessitate any difference with the court below as to the findings of fact, for the reason, that conceding the correctness of such findings we are of the opinion that they fail to sustain the conclusions of law reached by the learned trial judge. It may be properly assumed, in view of the findings below, that the republican party at its convention on the twenty-first day of October, 1902, held for the purpose of nominating candidates for office in San Miguel county, by resolution, or by action of the convention equivalent thereto, adopted the American flag as the designating emblem for the republican ticket for said county; that the said emblem with the names of the republican candidates, all duly certified, was properly filed in the office of the probate clerk on October 29, 1902, thereby making it unlawful for any other political convention, person or persons to' adopt or use such emblem for election purposes except upon a ballot containing the names of all the republican nominees; that the independent-republican party and the managers thereof utilized at such election an emblem practically the same as that adopted by the republican convention and upon tickets not containing the names of all the republican nominees; that said independent-republican party failed to file in the office of the probate clerk any emblem and ballot duly certified to by the presiding officer and secretary if its convention, and thus failed to acquire any exclusive right to use said emblem or any other emblem; that at said election 200 of the votes cast and counted for the respondent Chaves were upon tickets voted by independent-republican voters, with the emblem practically the same as that upon the Republican ticket, and that but for the voting of said tickets for Chaves, Esquibel would, have been elected.

The court concluded from this state of facts that the 200 independent-republican ballots were illegal and void and that, deducting these from the total vote cast for Chaves, the result was the election of Esquibel.

The case thus turns upon the question as to whether such use by the independent-republican voter of a ballot bearing the republican emblem, invalidated his ballot and necessitated its being rejected. This must of course be determined by the terms of the statute, compiled as sections 1633 and 1634. These sections are as follows:

“Section 1633. That hereafter it shall be lawful for any political convention held in this Territory or any county thereof, for the purpose of nominating candidates to be voted for at any election held in this Territory or any county thereof, to adopt by resolution, some mark or designating device to be printed on the face of and at the head of the ticket or ballot, containing the names of the candidates for office nominated by such convention, and when such mark or designating device shall have been adopted by any such convention, and an imprint of such ticket or ballot containing such mark, or designating device so adopted, and the names of the candidate or candidates nominated by such convention, and certified to by the presiding officer of such convention, and the secretary thereof, shall have been filed with the probate clerk of the county in which such convention was held, it shall be unlawful for any other political convention," person or persons in such county, to adopt or use any such mark or designating device for election purposes, or to cause the same to be placed or printed on any ticket or ballot to be voted at such election, without having printed in such ticket or ballot all of the names of the candidates nominated by the political convention adopting such mark or designating device, and it shall be unlawful for any person or persons whatsoever after the adoption and filing of such mark or designating device, to print or cause to be printed, utter, distribute or circulate, or cause to be uttered, printed or circulated, any ticket or ballot having thereon such mark or designating device with’any name printed thereon other than the name or names of the candidate or candidates nominated by the political convention adopting such mark or designating device: Provided, that nothing in this section shall be construed to prohibit any person from erasing or changing in any manner any name on any such ticket or ballot voted by such person; And, further provided, that this act shall not be construed as to prevent any executive committee of any political party holding such convention that adopted such mark or designating device, from having printed on any ticket or ballot containing-such mark or designating device, the name or names of any candidate selected by sucb committee by-authority of such convention to fill any vacancy caused, by the death, declination or retirement of any candidate nominated by such convention.

“Any person violating any of the provisions of this, section shall be deemed guilty of felony, and upon conviction thereof before any court of competent jurisdiction, shall be punished by imprisonment in the Territorial penitentiary for not less than one year and not more-than five years, at the discretion of the court trying the-cause.

“Section 1634. That hereafter all tickets or ballots used at any general election held in this territory-shall be printed on plain white paper, three inches in width and eight inches in length, or within one quarter of an inch of that size. No such ticket or ballot shall have any mark or number or designating device on the-back, so that its character may be known when folded. If such ticket shall have upon its face the mark, number or designating device provided by the first section of this act, such mark,- number or device shall be printed at. the head of the ticket or ballot, that may be printed in large black letters, the character of such ticket or ballot, designating the political party or the particular-question it is intended for, and then shall follow the-name or names of the candidate or candidates and the office or offices for which they are candidates, or the question to be voted on. And it shall be unlawful for any person or persons to print or cause to- be printed, any ballot or ticket with any false designation, or having any false heading printed thereon, or any other ballot or ticket calculated or intended to deceive or mislead any voter. Any person violating any of the provisions of this section shall be punished, on conviction thereof before any court of competent jurisdiction, by a fine of not less than one hundred dollars and not more than five hundred dollars, or by imprisonment in the county-jail not less than three months, nor more than six; months, or by both such fine and imprisonment at the discretion of the court trying the same.”

It will be noted (1) that this statute is penal in character and must therefore be strictly construed; (2), that it is thereby made unlawful for any political party, person, or persons, other than that adopting the emblem, to adopt or use the emblem for election purposes or to print or cause to be printed, uttered, distributed or circulated or cause to be uttered, printed, or circulated any ticket bearing such emblem, without having printed thereon all the names of the candidates of the party adopting such emblem: (3), that any person violating any of the provisions of this section, are, upon conviction, to be imprisoned from one to five years in the penitentiary; (4), that the statute contains no' provisions that the ballot containing such forbidden emblem shall not be counted.

The general rule of course is that provisions prescribing the penalty in a statute are exclusive and that the courts have no right to impose any penalty save as provided by the Legislature. Thus, in the case of Scottish Mortgage, etc., Co. v. McBroom, 6 N. M. 587 (affirmed, 155 U. S. 318), where it was contended that all written contracts providing for the payment of interest at a higher rate than 12 per cent were void because such contract as to the interest was unlawful, it was held: “If the Legislature has intended to forfeit the entire debt or to render the transaction void, nothing would have been easier than to have so declared.” So also in the Farmer’s, etc., Bank v. Dearing, 91 U. S. 35, it was said: “Where a statute creates a new offense and denounces the penalty or gives a new right and declares the remedy, the punishment or the remedy can be only that which the statute prescribes.”

2 3 4If therefore the Legislature has not by express terms or by necessary implication imposed this penalty upon ballots containing the forbidden emblem, this court has no power to attach such a penalty. The first question for our determination, therefore, is as to the scope of the statutory provision making it a felony for “any other political convention, person or persons to adopt or use ... for election purposes,” an emblem previously adopted by a political party. Is this statute broad enough to include the voter? Was it the intention of the Legislature in this enactment to make criminal the act of casting a ballot bearing a previously adopted emblem? Or was it intended simply to include the political managers who either in convention or at the polls engaged by the use of the emblem of another party in an enterprise calculated to deceive and mislead the voter? We are of opinion that the law was clearly aimed against the latter and not the former. The words “political convention, person or persons” reasonably construed carry with them the idea of campaign or party management, of “the men who control,” not the idea of the voter who simply takes at the polls the ballot handed him by the party worker. Then the qualifying word “other” preceding the words “political convention, person or persons” shows that the reference is to the same class previously mentioned in the statutes which upon examination will be found to be the convention or collection of persons assembled for party action, not the individual voter casting his ballot on election day. Those views are reinforced by the words “adopt or use . . . for election purposes” which follow in the statute. The first of these manifestly does not apply to the voter. He does not “adopt” the ballot. Equally repulsive to a sound construction is it to say that the words “use for election purposes” include voting. To assume this is to give the words a strained and unnatural meaning, to impute to the Legislature the folly of using four words to express an idea that the single word “vote” would have fully conveyed. It will be noted further that the “use” of the ballot “for election purposes” under this branch of the statute — which confessedly is the only portion with any semblance of reference to the voter — is forbidden only where the “other political convention, person or persons” use it “without having printed” thereon the names of all the candidates nominated by the convention adopting the emblem. This manifestly confines the persons to be considered included in this portion of the statute to those charged with the responsibility of printing or having printed the ballots, in other words the management or agents of the party putting the ballots in circulation. As the voter as such has nothing to do with printing or “having printed” such ballots, he cannot be within the terms of a statute mating the guilt or innocence of the person affected thereby depend upon whether such person has printed Or has caused to be printed upon the ballot the names of all the candidates of the convention adopting the emblem. We are also of the opinion that the elaborate enumeration of acts constituting guilt, which follow in section 1633, as for instance causing the prohibited emblem to be placed on a ballot or printing uttering, distributing or circulating ballots containing it — show that the persons in the legislative mind were the persons in control of or acting as agents of party management, in the convention, upon the streets, at the polls, and not the voter. Construing this penal statute strictly, as we must, we hold that it is clearly not intended to apply to the voter.

5 This brings us to the next question, Is the voter, having done no unlawful act, to be made to suffer, to be made to lose his. ballot simply because party managers have provided a ballot containing a prohibited emblem? Is he, because they may be subject to prosecution, to be punished for their' acts? Further, is the public, which is entitled to his aid in settling questions of proper self government, to be deprived of his participation in such election simply because some person or persons other than himself have violated the law? The holding of the court below in effect was that no matter that the voter may have voted such a ballot in entire ignorance that it contained an emblem inappropriate to the ticket he wished to vote, his ballot must nevertheless be arbitrarily rejected as void, because some one else has violated the law. This holding is in our judgment neither sound in principle nor justified by authority. It overlooks the"well-defined distinction that while the voter by his own apt may invalidate, and consequently lose, his ballot, the same result does not follow the acts of others leading to his voting an informal ballot. A few of the cases defining the doctrine will be referred to. In Gilleland v. Schuyler, 9. Kan. 591, it was said by the court, speaking through Brewer, J.: “The complaint is that the officers have designated an improper place and not that the electors have assumed to disregard the selection of either the Legislature or any officer. Where the electors have not themselves broken the law, ought they to be disfranchised?”

So also in McCrary on Elections, sec. 498, it is said: “Where the statute makes it a misdemeanor for any officer of elections to place any number or mark upon the ballot of a voter, but does not declare that ballots so marked or numbered by such officers shall be rejected, the true rule is to receive and count them. To reject such ballots would be to establish a rule under which an officer of elections could destroy the effect of a ballot cast in good faith by a legal voter by placing a number or mark upon it.”

In Kellogg v. Hickman (Colo.), 21 Pac. 325, there was a statutory provision against distributing any ballots printed or written contrary to the kind prescribed. A number of ballots of a kind, both as to form and appearance, different from that prescribed by statute having been voted, the election was contested upon the ground that such ballots were illegal and should not be counted. That case was a stronger one than that at bar for the reason (as we conclude from certain expressions in the dissenting opinion of Chief Justice Helm), that the statute there provided no penalties whatever, even -against the persons chargeable with the informalities in the ballots. It was held by the court: “I see no. warrant in the statute for deducting these votes from the count. The courts are without authority to declare such penalty against the voter, unless the Legislature .shall have declared that the act of voting such ballot .shall be unlawful, and that such ballot, if voted by the elector, and received by the judges shall not be counted, and, in the absence of legislation to this effect, the courts may not declare as much.....I find no case, and I think none can be found, where the deduction of such votes from the count is allowed in the absence of legislative expression against counting or receiving the same. ... To deprive legal voters of their Antes after they have been in good faith by ballots cast and counted without express statutory mandate, therefor, would be an advance beyond all precedent, and as I think, in violation of correct principles.”

So also, the Supreme Court of the same State, in the later case of Allen v. Clynn, 29 Pac. 670 holds (quoting from syllabus) : “Where the law provides several penalties against county clerks for violation of its provisions, failure on the part of a clerk to make proper publication of nominations or printing the names of candidates under the wrong device will not invalidate the ballot.” It is there also said (s. 673) : “To overthrow the expressed will of a large number of voters for no fault of theirs, as Ave are asked to do, would be to defeat the purpose of our election laws, which is to obtain a full and fair expression of the wishes of the voters.”

To the same effect is Moyer v. Van de Vanter (Wash.), 41 Pac. 62, where it Avas held: “In case of a Adulation of the law on the part of an election officer, punishment may be provided therefor, and in this way the law can be rendered effectual. Avithout going to the extent of depriving the voter of his right to have his vote counted in consequence of such violation;” and in Bates v. Crumbaugh (Ky.), 71 S. W. 75, it was said: “The principle should be borne in mind that, as to duties required of the voter and duties required of election officers, a different rule prevails and when officers of election, by neglect or fraud, fail to perform their duty in a matter over which the voter has no control, the inclination of the courts is always that the voter shall not suffer by reason of the negligence of the officers; and while the provisions may be regarded as mandatory with regard to the officers, and his failure may subject him to punishment^ it shall not disfranchise the voter who is not guilty of the violation.”

In Kirk v. Rhodes, 46 Cal. 406, in considering whether a ballot should be rejected because it diverged from the requirements of the code in size, quality of paper and type and leading used in printing it was said: “The ballots are always furnished on the day of election by committees appointed for the purpose by the respective political parties or by independent candidates or their friends. The elector in but few instances ever sees the tickets until he approaches the polls to cast his ballot and it would be absurd in the extreme to require him to have a rule by which he could measure and ascertain whether his ticket exceeded or fell short of twelve inches in length by one sixth of an inch or whether the color of his ticket was of the exact shade of paper furnished by the Secretary of State.” In our judgment there is as little obligation upon the elector under section 1633 of our Compiled Laws to seek the probate clerk’s office to ascertain whether he had the proper emblem upon his ballot, as rested upon the elector under the California law to carry a rule or an expert on paper and printing with him to the polls.

6 Without further citation from the reports we may say that in our judgment the authorities fully sustained appellant’s contention upon this point in his case. We are equally clear that the cases cited for appellee are readily distinguishable. These are cases where the ballot was rejected either because the voter violated the law or because the statute expressly provided that the ballot should be rejected. Thus in Springer v. Thompson, 37 Neb. 39, the voter, in violation of express statute, endorsed his name upon the ballot and it was rejected. The same was true in Farnham v. Boland, 66 Pac. 200 where the voter placed a mark upon his ballot when, the law said absolutely that he should not do it. So in People v. Board of Canvassers, 129 N. Y. 395, 408, the language is that when a voter “attempts to express his will by the use, through either design or accident, of ballots which the law declares shall not he counted, the courts have no power to help him.” In West v. Rose, 53 Mo. 350 there was an express statute that “no ballot not numbered shall be counted.”

We are of opinion, therefore, that the court below erred in holding that the ballots in contest were void as a matter of law. If the Legislature be of the opinion that as a matter of public policy, in addition to making the guilty party manager or worker subject to prosecution, the ballot should be rejected, it is for that body so to declare. This court cannot do so for it. That the present legislative policy is not in that direction, however, is evidenced by the terms of the act of March 14, 1903, changing the method of the adoption of emblems, wherein there is an express provision that ballots upon which the emblem is improperly used shall be counted notwithstanding that fact.

We may add that the conclusion' in the present case is rendered easier by the fact that it accords with the equities disclosed by the record. It is therein, in effect, stipulated that a sufficient number of the disputed ballots to elect the appellant were cast by persons who know that in voting they were casting the ballot of the independent-republican party and not the ballot of the republican party. Thus, whatever may have been the turpitude which prompted the unlawful appropriation by the one party of the emblem of the other, there was as a matter of fact no fraud from the voters and no taint in the result.

The cause will be reversed and remanded for further proceedings in accordance with this opinion.

McFie and Parker, JJ., concur. Mills, C. J., having tried the case below, arid Mann, A. J., not having heard the argument, took no part in this decision.