sufficient evidence requires something more than a “mere fishing expedition undertaken in the hope that in an examination of all the ballots enough might be discovered to change the result”
How later courts described this case
- sufficient evidence requires something more than a “mere fishing expedition undertaken in the hope that in an examination of all the ballots enough might be discovered to change the result”
Written by the judges who cited it.
The opinion
CONCURRING OPINION OP
HARTWELL, J. '
The provision of the county act that “the general laws and rules governing the election of senators and representatives of the Territory shall apply in the election of county officers wherever applicable except as herein provided” (Sec. 29, Gh. 10) appears on first impression to mean that the law which requires the rejection of a ballot for senators and a ballot for representatives “if more names are voted for on a ballot than there are offices to be filled” applies to ballots for county officers and requires the rejection of the entire ballot for all such officers *150 whenever too many names for any one office are voted for and' not merely the rejection of that portion of the ballot which includes the candidates for that one office. This was the impression that we had in the Fernandez case and we so ruled, although I believe the matter was submitted without argument. But since the argument has been made in this case I am convinced by examination of the various provisions of the two statutes, that the provision of the law which relates to ballots for senators, and representatives is inapplicable to ballots containing the names of all the candidates for county offices. The county act, Ch. 10, entitled “Elections,” provides (Sec. 30) that the precincts and polling places established by law for the election of senators and representatives shall be the same for the election of county officers; (Sec. 31) that voters registered for senators and representatives shall be qualified to vote for county officers in the county where they reside; (Sec. 32) and may register-before the boards of registration provided by law for the election of senators and representatives; (Sec. 33) that nominations for county officers shall be deposited with the county clerk with a deposit of $25 for expenses of election; (Sec. 34) that returns of election of county officers with the ballots, lists and records concerning the election shall be transmitted to the county clerk and preserved by him according to law; (Sec. 35) that upon failure of election of any county officer by reason of a tie vote a special election shall be ordered by the board of supervisors; (Sec. 36) that the board of supervisors shall issue a proclamation at least sixty days before a general election and forty days, before a special election; (Sec. 37) that ballot boxes for election of county officers shall be furnished by the board of supervisors, marked “County Officers”; (Sec. 38) that the county clerk shall prepare the ballots for county officers which “shall be of green paper and their general form, arrangement, number and style of printing shall be as prescribed by law for ballots for senators and representatives;” (Sec. 39) that the county clerk shall tabulate the returns of election and ascertain the resiilt in the presence of any candidate or his agent who desires, to be present.
*151 Comparison of this chapter of the county act with Ch. 7,' R. L., relating to general elections, shows that many provisions in the general election law are clearly applicable to county elections, as, for instance, the requirements in Secs. 26 and 27 concerning the statement to be contained in the proclamation, the languages and the newspapers in which it shall be published and the places where it shall be posted; the provisions for the appointment, tenure, meetings and powers of the boards of registration, the applications for examination for registration and the procedure in the examination of the-applicant and other matters relating to the registration (Secs. 37-58, lb.) ; the number and appointment of the inspectors of election and their duties (Secs. 59-63, lb.) ; the hours for voting, admission within the polling place and numerous other provisions relating to the conduct of the election which are made applicable to county elections under the provision above quoted in See. 29 of Ch. 10. Secs. 71 and 72, lb., requiring separate ballots containing the names of candidates for senators and representatives, are obviously inapplicable to county elections. Indeed, the county act does not specifically require one ballot for all the county oifices and it is only by inference from the requirement that the ballots shall all be of the same colored paper and from the inconvenience of a separate ballot and ballot box for each class of county offices that the candidates for all the county offices may be regarded as properly placed on one ballot. This fact is significant since a mistake in voting for too many names on a senatorial ticket or on a representative ticket would merely invalidate the vote for the office of senator or representative, for the obvious reason that it would be impossible to say for whom the voter intended to vote, while in the case of a ballot containing the names of all the county officers a mistake in voting for too many of any of the seven classes of offices would not for the same reason invalidate the votes for the other offices on that ticket.
The maxim applies cessante ration e legis cessed ipsa lex, when the reason of any particular law ceases so does the law *152 itself. Co. Bitt. 70 c. Whether the general law of elections is applicable to the county elections or not is a question of inference or construction and the rule aq>plies that a statute ought to be construed liberally in favor of the voter rather than against him. .There is probably no other instance of the establishment -■of a territorial or state • government having general election laws followed, as in this case, many years after by a law establishing county elections. Certainly no decision has been made known to this court under a statute which, like our county act, •enacts so much only of the general election law as is applicable leaving the question of how much is applicable, as well as how .much is inapplicable, to be determined by construction.
In the North Carolina case, 86 NT. C. 358, the-statute was •explicit, requiring that “if any ticket shall contain the names of more persons than said elector has a right to vote for or shall have a device ujDon it such ticket shall' not be numbered in taking ‘the ballots.” The court necessarily held that it had no right to 'restrict the statute by the qualifying words “for the same office,” -also holding that the insertion of inadmissible names upon the ballot was in the nature of a “device put upon it for the purpose ■•of distinguishing it.”
The definition of a ballot under our general election law is "“a written or printed or partly written and partly printed paper «containing the names of persons to be voted for and the office to be filled.” Sec. 68, R. L. A ballot for the county offices of ■-supervisors, sheriff, county clerk, auditor, assessor and tax '•■collector, county attorney and treasurer is'a ballot for seven dif'.ferent offices and might properly be regarded as a ticket contain'ing seven ballots for the different classes of offices. In this wiew the ballot to be rejected would be that only which included ithe names of candidates for any one of these several offices. The ■.general law distinguishes between ballots which were invalid because more names are voted for than there are offices to be filled and ballots containing any mark or symbol of identifica"tion or contrary to the provisions of the law. The two things «are not identical) nor does it seem to me that voting for too *153 many names can properly be regarded as a mark or symbol of identification or as contrary to other provisions of the statute although unauthorized thereby.
The law requiring senatorial and representative ballots to be rejected if more names are voted for on them than there are offices to be filled is inapplicable to county ballots which place on one ticket the names of candidates for a series of different offices unless such tickets (for that is what they are) be regarded as containing a series of ballots,. any one' of which is to be rejected if it contains too many names voted for in any one of the series.
To sum up-the foregoing: It is contrary to law to vote for too many persons for an office and such votes must be rejected as illegal whether their rejection is required by statute or not. The statute which makes void and requires the rejection of a senatorial ballot in which too many senators are voted for or a representative ballot for more representatives than can be elected is literally inapplicable to an entire ballot for all the county officers in which too many persons for any one of those offices are voted for and such ballots could not have been intended by and be contrary to the law relating to election of senators and representatives for no counties were then in existence. The county act, which prescribes the number of persons who may be elected for any one office, makes a vote for more than .such number for that office illegal but does not make illegal the votes on the same ballot for the proper number of persons for the other offices. Voting for too many persons for any one county office is not the identifying mark or symbol intended by the general election law.
There is no reason why the statute which requires rejection of marked senatorial or representative ballots should not equally apply but there is every reason for applying it to county ballots in order to accomplish the object of the statute which is the same in one class of ballots as in the other. On the other hand there is no reason for applying, and there is abundant reason for not applying, to county ballots the statute which requires *154 rejection of a senatorial or representative ballot for too many persons in order to accomplish its .object of ascertaining for whom the vote is cast. The statute, for the purpose for which it was made, is applicable to county ballots to the extent only of the incorrect vote.