Huston v. Anderson

I am unable to concur in the judgment of reversal.

I concur in the opinion, except as to the portions thereof relating to assisted voters and to the voters whose purported affidavits were taken by T.W. Edson.

The first class numbered twenty and the second class five. I am not prepared to say that the twenty assisted voters were not illegal voters but in the view I take of the case it is unnecessary to determine whether or not they were.

By the recount plaintiff has twenty-one majority. Assuming all of the assisted voters to have been illegal voters, and that they all voted for him, he would still have a majority of one after the deduction of their votes.

To reverse the judgment it is therefore essential to hold, as does the majority opinion, that the five voters whose so-called affidavits were taken by T.W. Edson were also illegal voters. I cannot concur in this conclusion.

The evidence showed that each of these voters had resided in the precinct for over twenty years, and had voted in that precinct before. There is no claim that they did not possess all of the qualifications of electors as prescribed by the constitution. (Const., art. II, sec. 1.) They were electors of the precinct. (Bergevin v. Curtz, 127 Cal. 86.)

The objection is not that these voters were not electors of the precinct in which they voted, but that they had not "conformed to the law governing the registration of voters," which is by section 1083 of the Political Code, as amended in 1899, made a condition precedent to the right of an elector to exercise the privilege of voting. It is well established that the legislature may make reasonable regulations for the registration of voters, for the purpose of providing "a means whereby the elector who is entitled to vote may be known by having his name enrolled upon an authentic list," and that it may require electors to comply therewith as a condition precedent to voting.

The validity of the provision of section 1083 of the Political Code relied on by defendant is not therefore to be doubted, but that provision means no more than that the elector shall have in good faith procured his registration as an elector, so that his name appears upon the authentic list provided by law.

This had been done in the case at bar. It is not claimed that the names of these five voters were not entered upon the great register of the county kept in the office of the county clerk (Pol. Code, secs. 1094-1096), and what purported to be the affidavits used for the purpose of procuring their registration (Pol. Code, sec. 1103) were contained in the book of affidavits delivered by the county clerk to the board of election of the precinct, to be used as the register at such election. (Pol. Code, sec. 1116.)

The purported affidavits signed by the voters were, on their face, without fault, the "Per T.W.E." referred to in the majority opinion having been stricken out in the office of the county clerk, and they had been received by that officer as sufficient affidavits for the purpose of registration.

The real objection is that the statements of the voters, forwarded by their procurance to the office of the clerk for the purpose of obtaining registration, had not in fact been sworn to by them before the county clerk or any of his deputies.

The provision that no name shall be entered upon the register of the clerk except upon an affidavit made before the clerk or one of his deputies is directed entirely to the county clerk (Pol. Code, sec. 1097; State v. Lattimore, 120 N.C. 426¹), and while the clerk should not register an applicant without such an affidavit being made, and while perhaps a registration made without the prerequisite of a sufficient affidavit might be canceled at the suit of any person as having been illegally made (Pol. Code, sec. 1109), the registration is not void.

In Davis v. O'Berry, 93 Md. 708, it was held, in a proceeding to have a name erased from the registration-book, that a complete answer to the showing that the voter had not been sworn as required by law would be made by a showing that the voter in fact possessed all of the qualifications which would entitle him to be registered.

In State v. Lattimore, 120 N.C. 426,¹ it was held that where an elector's name appeared on the registration-book, he had a right to vote, whether he had been sworn prior to registration as required by law or not.

In Tullos v. Lane, 45 La. Ann. 333, it was held that where the registration had been carried on under verbal authority from the registrar by persons not having legal authority so to do, voters actually entitled to vote could not after an election be deprived of their constitutional right to have participated therein, by the simple fact of itself that the person who registered them was not legally authorized so to do. (See, also, McCrary on Elections, 4th ed., sec. 140.)

No case has been cited, and I have been unable to find any, where a person who was in fact entitled to vote if registered, and whose name was enrolled on the register, and who was allowed to vote, had been held after the election to have been an illegal voter, simply for the reason that there was some irregularity or informality in the method by which he was registered.

The majority opinion appears to concede that under the law as it stood prior to the amendments of 1899, a vote cast by such a person would have been a legal vote. I cannot see that there has been any material change made in this regard by such amendments.

Van Dyke, J., and Shaw, J., concurred in the dissenting opinion.

¹ 58 Am. St. Rep. 797.

¹ 58 Am. St. Rep. 797.