law on the part of the individual voter, and it is made to appear that there has been in fact an honest expression of the popular will, there is a well-defined tendency to sustain the same, although there may have been a failure to comply with some of the specific provisions of the law upon the part of the election officers or some of them. Language may have been employed in some of the cases in conflict with this position; but, when such cases are examined with reference to the specific facts passed upon, it will appear that this distinction has been adhered to, and it may truly be said to be the one great underlying principle of all the cases. In case of a violation 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 without going to the extent of depriving the voter of his right to have his vote counted, in consequence of such violation." The rule is stated as follows in McCrary, Elect. (4th Ed.) § 724: "The decisions cited in the preceding sections upon the question whether the provisions of the law are mandatory or directory are not entirely harmonious. They, however, disclose a well-defined disposition on the part of the courts to distinguish between acts to be performed by the voters and those devolving upon the public officials charged with the conduct of the election. The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and on the other of relieving him from the consequence of a failure on the part of election officers to perform their duties according to the letter of the statute, where such failure has not prevented a fair election. The justice of this rule is apparent, and it may be said to be the underlying principle to be applied in determining this question. The requirements of the law upon the elector are in the interest of pure elections, and should be complied with, at least in substance; but to disfranchise the voter because of the mistakes or omissions of election officers would be to put him entirely at the mercy of political manipulators. The performance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do." In State v. Fransham, 19 Mont. 273, it is held, where electors vote the official ballots supplied to them by the judges of election, their legally-expressed will cannot be overthrown, where they are not at fault, by the fact that the public officer who prepared the ballots in some way neglected his duty. See, also, State v. Russell, 34 Neb. 116 (33 Am. St. Rep. 625); Cook v. Fisher, 100 Iowa, 27. The case of Parvin v. Wimberg, 130 Ind. 561 (30 Am. St. Rep. 254), is almost a parallel case to this. The election law in Indiana is very similar to the Michigan law. This is especially true of the initialing of the ballots and the counting of the votes. In that case the statute required the initials to be in the lower left-hand corner. They were inadvertently placed in the lower right-hand corner. In holding that the ballots should be counted, the court said as follows: "So, it has often been held by this court that a departure from the mode of holding an election as prescribed by statute, which does not deprive legal voters of their right to vote, or permit illegal voters to participate in the election, or cast uncertainty on the result, does not affect the validity of the election. Gass v. State, 34 Ind. 425; Lafayette, etc., R. Co. v. Geiger, Id. 185; Dobyns v. Weadon, 50 Ind. 298; Mustard v. Hoppess, 69 Ind. 324; Duncan v. Shenk, 109 Ind. 26. Judge McCrary, in his work on Elections (4th Ed., § 228), says: "The principle is that irregularities which do not tend to affect the results are not to defeat the will of the majority. The officers of election may be liable to punishment for a violation of the directory provisions of a statute, yet the people are not to suffer on account of the default of their agents.' "Section 34 of the election statute provides: * * * "At the opening of the polls, after the organization of, and in the presence of, the election board, the inspector shall open the packages of ballots in such a manner as to preserve the seals intact. He shall then deliver to the poll clerk of the opposite political party from his own twenty-five each of the State and local ballots, and to the other poll clerk the stamps for marking the ballots. The poll clerks shall at once proceed to write their initials in ink on the lower left-hand corner of the back of each of said ballots, in their ordinary handwriting, and without any distinguishing mark of any kind. As each successive elector calls for a ballot, the poll clerks shall deliver to him the first signed of the twenty-five ballots of each kind; and the inspector shall immediately deliver to the poll clerks another ballot of each kind, which the poll clerks shall at once countersign as before, and add to the ballots already countersigned, so that it shall be delivered for voting after all of those theretofore countersigned.' "The sections following provide for the manner of conducting the election until the close of the polls. "Section 52 provides: "The board shall then proceed to canvass the votes, beginning first with the State ballots, and completing them before proceeding with the local ballots, by laying each ballot upon the table in the order in which it is taken from the ballot-box, and the inspector, and the judge of the election differing in politics from the inspector, shall view the ballots as the names of the persons voted for are read therefrom. In the canvass of the votes, any ballot which is not indorsed with the initials of the poll clerks, as provided in this act, and any ballot which shall bear any distinguishing mark or mutilation, shall be void, and shall not be counted; and any ballot or part of a ballot from which it is impossible to determine the elector's choice of candidates shall not be counted as to the candidate or candidates affected thereby.' "It is not claimed that the failure of the poll clerks to indorse their initials at the place on the back of the ballots indicated by the statute constituted a distinguishing mark, for they were all indorsed alike, but the claim is that the statute is mandatory as to the place upon the ballot at which the initials shall be written. The purpose of construing a statute is to arrive at the intention of the legislature. For that purpose, the courts will look to the whole statute and all its parts, and, when such intention is so ascertained, it will prevail over the literal import and the strict letter of the statute; and, where the meaning is doubtful and uncertain, the courts will look also to the situation and circumstances under which it was enacted, to other statutes, if there are any, upon the same subject, whether passed before or after the statute under consideration, whether in force or not, as well as to the history of the country, and will carefully consider, in this connection, the purpose sought to be accomplished. Storms v. Stevens, 104 Ind. 46; Stout v. Board of Com'rs, 107 Ind. 343; May v. Hoover, 112 Ind. 455; Board of Com'rs of Fountain Co. v. Board of Com'rs of Warren Co., 128 Ind. 295. "A study of the statute upon the subject of elections leaves no doubt that its purpose is to secure a fair expression of the will of the electors of the State, by secret ballot, uninfluenced by bribery, corruption, or fraud. The disfranchisement of whole precincts by reason of an honest mistake on the part of election officers is inconsistent with this purpose. The immediate purpose of the provisions of section 34 is to prevent the counting of fraudulent votes, by requiring the poll clerks to indorse their initials upon the official ballots, to the end that they may be identified when taken from the ballot-box. This purpose is accomplished as well by the indorsement of such initials in one place as in another on the back of the ballot. Of course, so much of the statute as requires the ballots to be indorsed with the initials of the poll clerks is mandatory; but we are of the opinion that so much of the statute as requires the initials to be indorsed at a particular place on the back of the ballot is directory only, because the purpose of the legislature is accomplished when the indorsement is made in such manner as to enable the election officers, in conducting the count, to identify it as the official ballot. "Judge COOLEY, in his valuable work on Constitutional Limitations (6th Ed., p. 92), says: "Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time nor in the precise mode indicated, it may still be sufficient if that which is done accomplishes the substantial purpose of the statute.' See, also, Martin v. Pifer, 96 Ind. 245; Middleton v. Greeson, 106 Ind. 18; In re Douglass, 58 Barb. 174." The indorsement of the initials was made in all respects as required by law, except that, instead of being in the upper left-hand corner, they were in the lower right-hand corner. The ballot, when folded, could not be told from a folded ballot with the initials in the upper left-hand corner. The inspectors of election did not intend to do any wrong. The electors were all qualified voters. They accepted the ballots as given to them by the inspector, supposing them to conform fully with the law. As voted, they were secret ballots. No one of the 239 ballots was distinguishable from the others. The electors voted them The application to have the order of the circuit court vacated is refused, and the board of canvassers is directed to issue a certificate of election to the relator. The other Justices concurred. 119 61 123 245 ELDRIDGE v. HUBBELL. 1. JUSTICES OF THE PEACE-JURORS PEREMPTORY CHALLENGE. 2. SAME-CERTIORARI. The ruling of a justice in allowing a peremptory challenge to a iuror may be reviewed on certiorari, though appeal is the better remedy. Error to Ionia; Davis, J. Submitted October 4, 1898. Decided December 28, 1898. Replevin by Martha E. Eldridge against Nathan Hub |
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