Cameron v. Babcock , 63 S.D. 554 ( 1935 )

As disclosed in the opinion of Roberts J., the principal issue to be determined in this case is whether our statutory provisions relating to registration of voters are mandatory or directory. The opinion holds that that portion of section 7082 (Rev. Code 1919), which provides that "no vote shall be received at any election in the state if the name of the person offering the vote be not on such registry list unless such person shall furnish to the judges of election his affidavit," etc., is mandatory, and that a failure to comply therewith renders the vote cast illegal, and refrains from passing upon the broad contention of the respondent that all provisions of the registry law are mandatory.

[1, 2] As disclosed in the opinion of Judge Roberts, the holdings are in conflict upon the question of whether statutes similar to our registry statutes are mandatory or directory. It is impossible for us to reconcile these conflicting decisions, and no useful purpose would be served in an attempt to differentiate between statutes held to be mandatory and those held to be directory. Montana originally took the position that similar statutes were mandatory. See Price v. Lush, 10 Mont. 61, 24 P. 749, 9 L.R.A. 467. Thereafter, the Montana court reversed its position and held such statutes directory only. See Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, 28 L.R.A. 502; Goodell v. Judith Basin County, 70 Mont. 222, 224 P. 1110. Wisconsin in the early case of State v. Hilmantel, 21 Wis. 566, 574, took the position that the Wisconsin registry statutes, which in many respects are similar to our own, were mandatory in their entirety, and that any failure to comply therewith rendered the votes cast illegal. However, in the more recent case of State v. Barnett (1923) 182 Wis. 114, 195 N.W. 707, the majority of the Wisconsin court receded from the original position to the extent that it is now held in Wisconsin that the registry statutes are mandatory to the extent that they render votes cast illegal only when there is a failure to conform to the provision of the Wisconsin law similar to the provision of our Code set out above, which states in effect that no vote shall be received at any election in the state if the name of the person offering the vote be not on the registry list, unless such person shall furnish an affidavit, etc. The Wisconsin court observes some difference in the Wisconsin statutes between the duty cast upon the elector to qualify himself to vote by having his name appear upon the registry list, and to the duty to qualify himself to vote in the event his name does not appear upon that list. We are unable to determine that there is any material distinction between the duty cast upon an elector to qualify himself to vote by getting his name to appear on the registration list under the provisions of sections 7079, 7080, and 7081, as amended by chapter 144, Laws of 1931, and the duty cast upon the elector under section 7082 to qualify himself to vote in the event his name does not appear upon the registration list. It seems to us that if our registry statutes are mandatory, they are mandatory to their full extent, and we do not believe that they are, or were ever so intended, when the effect of holding them mandatory would be to disfranchise an elector, who is qualified in every respect except that he has not complied with the provisions of these statutes, and after he has been permitted by an election board to cast his ballot. Under the terms of the statutes no doubt the election board could insist that the statute be strictly complied with before permitting a vote to be cast. The statute goes only to the extent of saying that "no vote shall be received"; it does not declare that after a vote has been received it shall be an illegal vote for failure to comply therewith. We believe the rule announced by the Indiana court in the case of Jones v. State ex rel Wilson, 153 Ind. 440, 55 N.E. 229, 233, is sound, wherein that court said: "All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election, or that its omission shall render it void."

In this case it is conceded that all of these 22 voters were legal voters except for the failure of their names to appear upon the registration lists, or to substantially comply with the statute in furnishing affidavits, etc. It follows from what we have said above that, in our opinion the illegality of these 22 votes was not established.

While, perhaps, not material because of our holding that our registry laws are directory only when it is sought to invalidate a vote because of noncompliance therewith, nevertheless we wish to concur in the opinion of Judge Roberts so far as it relates to the rule announced in the case of Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321.

[3] Respondent insists further that certain contested ballots were erroneously counted by the trial court in favor of the appellant. We refer first to a group of seven ballots, each of which contained in the squares before some candidate's name, other than appellant or respondent, a diagonal line. In some of the ballots the line extended from one corner of the square across the square to the other corner; while in other ballots the line extended only partially across the square. Respondent insists that the court erred in counting these ballots because such ballots were identified ballots within the meaning of section 7273, R.C. 1919, as amended by chapter 222, Laws of 1921. A careful examination of the questioned ballots discloses that there was no uniformity in the marking. No two of the ballots contained the mark in the square before the same candidate's name. From an examination of the ballots it quite readily appears that the marks were placed there by inadvertence or mistake, without any intention whatsoever of placing upon the ballot an identifying mark. It would indeed be difficult, if not impossible, for any one to identify any one of these seven ballots from the marks as we have observed them. This court in the case of Naramore v. Sprague, 48 S.D. 146, 202 N.W. 905, 906, quoted with approval an earlier statement of this court found in McMahon v. Polk, 10 S.D. 296, 73 N.W. 77, 47 L.R.A. 830, wherein the court said: "* * * ``The Legislature never intended to disfranchise a legal voter, who, in substantially complying with the mandatory requirements of the law, has, without an evil purpose, but by accident or inadvertence, made a blot or mark upon his ballot, which in no manner tends to distinguish the same, or divulge the secret within his breast.' * * * Unless, therefore, the ballot has been marked intentionally * * * the judges of election should presume that the marking was inadvertently done, and count the ballot."

[4] We are satisfied that, applying the above rule to these seven ballots in question, the trial court did not err in counting these ballots as votes for appellant. It is further alleged that the court committed error in counting other ballots for respondent. We have carefully examined all of the ballots, and we are satisfied that, if there were error in the counting of any of these other ballots it was not prejudicial to the respondent for the reason that in each instance ballots of the same nature and of an equal number or more were counted by the court for respondent over appellant's objection. People ex rel Bledsoe v. Campbell, 138 Cal. 11, 70 P. 918; Van Winkle v. Crabtree, 34 Or. 462, 55 P. 831, 56 P. 74; Pardee v. Kuster, 15 Wyo. 368, 89 P. 572, 91 P. 836.

We are of the opinion, therefor that the decision of the trial court must be reversed. We are satisfied that no prejudicial error has been shown in the trial court's reception or rejection of ballots. It being our opinion that the illegality of the 22 ballots was not established by proof of noncompliance with the registry laws, the count of the trial court showing a majority of 2 in favor of appellant must stand.

The judgment and order appealed from are reversed, with directions to enter judgment in favor of appellant.

WARREN, P.J., and CAMPBELL, J., concur.

POLLEY and ROBERTS, JJ., dissent.