
    [Argued December 2, 1892;
    decided January 2, 1893.]
    H. B. MILLER v. SYLVESTER PENNOYER et al.
    [S. C. 31 Pac. Rep. 830.]
    I. Voters and Elections—Australian Ballot Law.—The exception in Oregon Act, 1891, § 49, providing that the names of candidates for electors for president and vice-president shall be arranged in groups as presented in the several certificates of nomination, relates only to the manner < f arranging the names upon the ballot, and not to the former provision that the name of each person nominated shall be printed upon the ballot in but one place; and the law is violated by printing in two groups of electors the name of one person nominated by two parties.
    2. Voters and Elections—Ballots.  —In the absence of an affirmative declaration in the state election law, that a ballot containing the name of a candidate in more than one place is void and shall not be counted, an error or mistake of the county clerk in printing the name of the same person in two groups of electors on the “official ballot” will not require the rejection of the ballots, although the statute provides that the name shall be printed in but one place. Allen v. Glynn, 17 Col. 338, approved.
    3. Elections—Mandatory Statute.—Section 47 of the Australian Ballot Act (Laws 1891, 23,) requiring the county clerk to print all the official ballots, is mandatory in that it requires the clerk to strictly comply with its provisions, but not in the sense that the voter will lose his vote if the clerk commits an error in printing the names.
    Marion County: Geo. H. Burnett, Judge.
    Plaintiff appeals.
    Affirmed.
    The appellant Harry B. Miller applied to the circuit court of Marion County for a writ of mandamus to the respondents Sylvester Pennoyer and Geo. W. McBride, requiring the respondent Geo. W. McBride, as secretary of state, to abstain from counting certain votes illegally cast for one Nathan Pierce for presidential elector at the November election, 1892, and further requiring said respondent to count of the votes legally cast only those where the name of the said Nathan Pierce appears but once, in the Peoples’ Party column, and to reject ballots where the name of said Nathan Pierce was twice printed on the ballot, when it appeared in the Democratic column; and, furthermore, commanding and requiring respondent Sylvester Pennoyer, as governor of the state of Oregon, to issue a certificate of election for the office of presidential elector to the appellant.
    Briefly stated, the facts are these: The Democratic Party, in convention assembled, nominated four electors, as provided by.law, as did also the People’s Party. Later, one of the Democratic electors (Robt. A. Miller) withdrew from the ticket, and thereafter, by reason of the vacancy occurring on the Democratic ticket, the Democratic central committee, as provided by law, nominated Nathan Pierce to fill said vacancy, which nomination, as is alleged in the writ, “was duly certified to the secretary of state as by law required.” Mr. Pierce filed his acceptance as a nominee of the People’s Party with the secretary of state, but did not file any acceptance of the nomination of the Democratic Party. In the counties of Clackamas, Klamath, Clatsop, Lake, Gilliam, and Yamhill, the county clerks caused Pierce’s name to be printed twice on the ballots, viz: once under the group of electors nominated by the People’s Party, and once under the group of electors nominated by the Democratic Party. It is alleged in the writ that this action of the clerks was illegal, and that the-votes cast for Pierce in said counties should not be counted; that if they are not counted the appellant will have received a plurality of the votes cast at said election, and will be entitled to a certificate of election as a presidential elector, otherwise the said Pierce will have received a plurality of said votes; that the said Geo. W. McBride, secretary of state, threatens to count said illegal votes so returned by the said respective county clerks .for the said Nathan Pierce, and that the said Sylvester Pennoyer, governor of the state, threatens to issue a certificate of election to the said Nathan Pierce, and to decline to issue a certificate of election to the petitioner.
    The respondent Geo. W. McBride appeared and filed a demurrer to the writ, specifying several grounds of objection, but the principle objection thereto, and the one relied upon, is that the same does not state facts sufficient to entitle the appellant to the relief demanded, or to any relief. The demurrer was sustained, and the plaintiff appeals. Affirmed.
    
      Raleigh Stott, and Alfred F. Sears, Jr. (Boise & Stott, and McGinn & Simon oh the brief), for Appellant.
    The provisions of the Australian Ballot Law (Session Laws, 1891, 9) clearly require the rejection of all ballots upon which the name of the candidate shall be printed in more than one place: Sections 49, 27, 47. The question decided in case of People v. Board of Canvassers, 129 N. Y. 395 (14 L. R. A. 646), is identical with the question that arises in this case. The New York law forbids the casting of a ballot having a distinguishing mark on the outside thereof, and prohibits the canvasser from counting any such ballot. In this case it appeared that certain ballots bearing the number of one election district had been voted in another. The court decided that these ballots should not be counted. In West v. Ross, 53 Mo. 350, the statute provided that “no ballot not numbered should be counted,” and the question arose as to whether ballots cast for the successful'candidate for county clerk not numbered should be excluded from the count. It was conceded that no fraud was intended by the inspectors in failing to number the ballots, but it was occasioned by an inadvertence on their part. It further appeared that the number of ballots counted corresponded with the number of votes appearing on the poll list. The court, however, held that these votes were void. In the late case of Fields v. Osborne, 60 Conn. 544 (12 L. R. A. 551), it was held that when the law provides that ballots shall contain only the names of the candidates, the office voted for, and the name of the political party issuing the same, in addition to the official indorsement, all ballots not conforming to these requirements were void. See also Talcott v. Philbriclc, 59 Conn. 478 (20 Atl. Rep. 436; 10 L. R. A. 150), and Oglesby v. Sigman; 58 Miss. 502.
    The object of the law considered in all these cases was to secure a pure ballot; the object of the law under consideration in this case is the same. If we would maintain the integrity of this law, it must be construed, or rather enforced, as it is written. The expressed purpose of this law was to prevent frauds and punish crimes affecting the right of suffrage, but its object will be completely nullified if that part of section 49 which provides that “the name of each person nominated shall be printed upon the ballot in but one place,” is construed to be merely directory. The importance of this law makes the provision mandatory. If a candidate’s name may be printed twice on a ballot, then there is no limit to the number of times it may appear, — ballots of ever kind, color, and description may be used, and the name may be in every group on the ticket.
    
      Thomas O'Day, and Daniel B. Murphy (Silvestone & Brodie on the brief), for Respondents.
    The fair and reasonable construction to be placed upon the statute is, that the political designation is to be placed opposite to the candidate for president and vice-president respectively, and the only thing to be placed opposite the name of the candidate for elector is the city, town, or county where he resides. The electoral candidates under this statute should not be considered to be Republican electors, Democratic electors, People’s Party electors, or Prohibition electors, but should only be considered as electoral candidates for a Republican, Democratic, Peoples’ Party, or Prohibition nominee for president and vice-president; and the mandate of the law is that the political party or complexion should be added opposite to the name of said candidates for president and vice-president, and the city, etc., opposite the name of the electoral candidate (presumably for identification alone).
    Then, again, the statute directly imposes the obligation of printing in groups the electoral candidates in presidential elections, and directs how they shall be printed, not in alphabetical order under the distinction of the office, as in ordinary elections, but in groups as presented in the several certificates of nomination.
    The record here discloses that Nathan Pierce was nominated as a presidential elector by the People’s Party, and duly accepted said nomination, and that thereafter said Nathan Pierce was nominated by the Democratic Party as presidential elector. For this court to say that Mr. Pierce's name could not be printed in the Democratic group of electors because he had theretofore been nominated for a like position by another political party, is not consistent witli the spirit and reason of the act. The general provision that a candidate’s name shall-appear but once on a ballot is controlled by the exception in the case of presidential electors, and it cannot be presumed that at the time the statute was enacted the legislature could have foreseen a double nomination. A statute somewhat similar to the one under consideration has been so construed in Northcote v. Pulsford, 44 N. J. L. S. 217.
    It is the duty of the chief executive of the state to issue certificates of election to all persons duly elected; he must do it as the chief executive of the state, and he cannot avoid that responsibility. The only office of a writ of mandamus is to compel an officer to act, — to exercise his discretion. The office of this complaint, and the only object of this action, is not to compel the defendants to act, but to direct them in what manner and how the act shall be performed; that is, to control their discretion. This cannot be done. In support of these views we cite the following cases : Rice v. Austin, 19 Minn, 103; 7 Lawson Pub. R. & Rem. § 3784; The People v. The Gov- ■ ernor, 29 Mich. 320; Hawkins v. The Governor, 1 Ark. 570; State v. The Governor, 25 N. J. 331; People v. Bissell, 19 111. 229; Bennet, petitioner, 32 Me. 510; Mauran v. Smith, 8 R. I. 192; U S. v. Black, 128 U. S. 40.
    
      Geo. E. Chamberlain, attorney-general, for Respondents.
    The portion of section 49 to which we refer provides that “the names of the candidates for each office shall be arranged under the designation of the office in alphabetical order according to surnames, except that the names of candidates for the offices of electors of president and vice-president shall be arranged in groups as presented in the several certificates of nomination.” How could any other construction be placed upon the act than that adopted by the county clerks in the several counties named, and effect be given to the portion of the act just quoted? Section 49 is incomplete. At the end thereof the law-makers evidently intended to prescribe the form of ballot, but failed to do so, and the enrolled bill, of which the court can take judicial notice, seems to have originally had embodied therein a form of ballot, but it is lacking both in said enrolled copy and in the published law. The only sections providing for the printing of the ballots required to be used at the election are sections 47, 48, and 49, and under these we contend that the clerks were allowed a wide discretion in the matter ef printing ballots. Taken as a whole, the statute plainly warrants the action of the clerks in placing the name of Pierce under each group of electors; and aside from that, the well-established rules of construction of such statutes require that this section shall be considered merely directory: People v. Cook, 14 Barb. 298; Dishon v. Smith, 12 Iowa, 218; Merchant v. Langworthy, 6 Hill, 646; People v. Peck, 11 Wend. 604.
    
      Ignorance, inadvertence, mistake, or even intentional wrong on the part of local officials should not be permitted to disenfranchise a district: Jones v. The State, 1 Kan. 273-270; Oilleland v. Schuyler, 9 Kan. 569; McCrary, Elections, § 192; Paine, Elections, §§ 497, 502. The distinction seems to be that provisions of a statute which fix the day and place of election and the qualifications of the voters are substantial and mandatory, while those which relate to the mode of procedure in the election, and to the record and return of the results, are formal and directory : Paine, Elections, §§ 498 and 499, and authorities cited.
    Sections 27 and 29, and the latter part of section 49, of the act under consideration, show clearly that the provisions of the first portion of section 49, relied upon by the appellant, are not mandatory, but merely directory. The ballot must be counted if it is possible to determine the elector’s choice, and there is no provision which requires a ballot to be rejected because of any informality in its form. No ballots are to be rejected except such as are not white, and are not furnished under the provisions of this act, or such as are so defective that the choice of the voter cannot be determined. It has been held that where the name of a candidate appears more than once upon a ballot, and the ballot is voted in this condition, it does not invalidate the voter Budd v. Holden, 28 Cal. 137; Kirie v. Rhoads, 46 Cal. 398; State v. Pierce, 35 Wis. 93; State v. Elivood, 35 Wis. 615; Paine, Elections, § 553; 6 Am. & Eng. Enc. 345; McCrary, Elections, § 503; Ashfield’s Case, Cushing Election Cases, 583.
    Under our statute, even if the name of Pierce had not been marked out under either group, it is questionable, under the authorities cited, whether the judges of election could refuse to count the vote. When, however, the name was crossed out under one group, no question could possibly arise, the voter having clearly expressed his intention by erasing the name in one or the other place, and it was unquestionably the duty of the judges of election to count all ballots when the name was crossed out once: Northcote v. Pulsford, 44 L. J. N. S. 217, C. L.; Barnum v. Gilman, 27 Minn. 466; People v. Glute, 50 N. Y, 466.
    It seems to be settled that as to those things over which the voter has control, such statutes as the one under consideration are mandatory; and as to those things over which he has no control, they are merely directory: Kirie v. Rhoads, 46 Cal. 398; McCrary, Elections, § 503; State v. McKinnon, 8 Or. 500.
    The general principal which governs is, that while there should be a strict compliance with the provisions of a statute, yet when they are merely directory, such strict compliance is not essential to the validity of proceedings under such statute, unless they are declared to be therein. This is specially applicable when the rights of the public or third persons are concerned. The fundamental object of all election laws is the freedom and purity of the ballot. It is to be observed that the voter has no control whatever over the publication of the names of candidates or the form of the ballots. If for some defect in these particulars the ballot must be rejected, the door would be open to fraud. To overthrow the expressed will of a large number of voters for no fault of theirs, as we are asked to do, would be to defeat the purpose of all election laws, which is to obtain a full and fair expression of the wishes of the voters: Allen v. Glynn, 29 Pac. Rep. 673; approved in People v. District Court, 31 Pac. Rep. 342; Bowers v. Smith, 17 S. W. Rep. 760; Kellogg v. Hickman, 12 Col. 256.
   Bean, J.

This is a proceeding by mandamus to compel the respondent Geo. W. McBride, as secretary of state, in making the official canvass of the votes cast for presidential electors at the late election, as returned to him by the various county clerks, to abstain from counting certain votes alleged to have been illegally cast for Nathan Pierce, one of the candidates for electors norninated by the People’s Party, in consequence of his subsequent nomination by the Democratic Party and the printing of his name on the official ballot in more than one place, — that is, in both the People’s and the Democratic group of electors, — although there is no claim or pretense of fraud in such publication, or that Mr. Pierce’s name was unscratched on the ballot in more than one place, when cast by the voter or counted by the officers of election. In Oregon the law requires the voter to scratch out the names of those for whom he does not wish to vote, leaving untouched the names of his chosen candidates. The fact that this case was advanced out of its order, but recently submitted, and the necessity of an immediate decision, as well as the pressure of official business, renders it impossible for us to do more than to state briefly the position of each party, and the conclusion at which we have arrived after carefully examining the questions presented on this appeal.

1. By the act of 1891, commonly known as the “Australian Ballot Law,” it is made the duty of the several county clerks to prepare and cause to be printed on a certain character of paper, all ballots to be used, or voted, at any election held under the provisions of this act; and no ballots other than those so prepared and printed shall be used, circulated, cast, or counted at any such election. Section 49 of the act, which prescribes what the ballot shall contain, so far as material to the question before us, provides that the ballots shall be styled “official ballot,” and “shall state the number and name of the precinct and county they are intended for, and the date when the election is to be held; shall contain the names of all the candidates for offices to be filled at that election, whose nominations have been duly made and accepted as herein provided, and who have not died or withdrawn,, and shall contain no other names of persons, except that, in the case of electors of president and vice-president of the United States, the names of the candidates for president and vice-president may be added to the party or political designation; the name of the city or town, or county, in which the candidate resides shall be added to the name of each candidate; the name of each person nominated shall be printed upon the ballot in but one place, but there shall be added opposite thereto the party or political designation, expressed in not more than three words for any one party, as specified in the certificate nominating him for the office. The names of the candidates for each office shall be arranged under the designation of the office, and in alphabetical order, according to surnames, except that the names of candidates for the offices of electors for president and vice-president shall be arranged in groups as presented in the several certificates of nomination. ”

The contention for petitioner is, that the provision in this section that the name of each person nominated shall be printed upon the ballot in but one place, applies to all ballots, whether to be used in a state or presidential election, and the exception in the latter part of the clause quoted refers only to the arrangement of the names upon the ballot; while the contention for respondent is, that the object and design of the latter clause is to except candidates for presidential electors from the provision against repeating names, and to preserve the identity and unity of each electoral group or ticket “as presented in the several certificates of nomination, ” whether the several groups contain the same or different names. The proper construction of this section is indeed difficult to determine, and we have been unable to reach a conclusion satisfactory to all the members of the court. The majority of the court is of the opinion that in the light of the rule of construction that a limiting clause or proviso in a law is ordinarily confined to the last enactment (Friedman Bros. v. Sullivan, 48 Ark. 213; 2 S.W. Rep. 785), the better view would seem to be that the exception only relates to the manner of the arrangement of the names upon the ballot, and not to the provision that the name of each person nominated shall be printed upon the ballot in but one place, and therefore the printing of ■■.the name of Mr. Pierce in both the People’s and the ! Democratic group of electors was contrary to the pro- > visions of the law.

To the writer of this opinion, the better view would seem to be that the object and design of section 49, in the light of the entire act, is to preserve the identity of the electoral ticket or ballot of each party as a unit; for it is provided that the names of candidates for the office of electors “shall be arranged in groups as presented in the several certificates of nomination,” and that the “names of all the nominees of each party for electors may be upon the same certificate of nomination”: Section 34. It is also provided, in effect, that a nominee to fill a vacancy shall be treated and considered in arranging and preparing the ballot the same as the original nominee, and in his place: Section 44. Hence, when Mr. Pierce was nominated to fill the vacancy caused by Mr. Miller’s resignation, his name was, in legal contemplation, it seems to me, upon the certificate of nomination for electors by the Democratic Party, and was therefore one of the Democratic “group as presented in the certificate of nomination,” and was properly so printed on the ‘ official ballot. ”

2. But however this may be, and whatever may be the correct interpretation of section 49, we are all agreed that the mistake, if it was a mistake, in printing the name of Mr. Pierce on the “official ballot” in both the People’s and the Democratic group of electors, did not deprive the voter who cast such a ballot of the elective franchise, or the candidate for whom it was cast of the benefit of such vote. Under the law as it now exists, neither a voter nor a candidate has any control or voice whatever in the arrangement and publication of the names or forms of the ballot, and the voter is either compelled to vote the “official ballot” as prepared by the county clerk, or not vote at all. In such case, in the absence of an affirmative declaration in the statute that a ballot containing the name of a candidate in more than one place is void and shall not be counted, we are unable to agree to the doctrine that an error of the county clerk in construing a doubtful provision of the law should disenfranchise a large number of voters who are in no way responsible for the error or mistake. And such is the effect of the decisions under similar ballot laws: Bowers v. Smith, 17 S. W. Rep. 761, and 20 S. W. Rep. 101 (16 L. R. A. 754); Allen v. Glynn, 17 Col. 338 (31 Am. St. Rep. 304; 15 L. R. A. 743; 29 Pac. Rep. 670); Northcote v. Pulsford, 44 L. J. C. P. 217.

3. The law is mandatory in the sense that it demands and requires the county clerks, in the preparation of the “official ballot,” to strictly comply with all its provisions; but not in the sense that a voter’s right to exercise its elective franchises will be lost because of some technical mistake of the county clerk in printing the names of candidates upon the ballot. Such a construction of the law would not only render an election invalid on account of an honest mistake of a county clerk, but would open the door to the gravest fraud. It would place the power in the hands of a dishonest officer to disenfranchise the voters of his county, as well as cause the defeat of any particular candidate. To defeat the will of the people, or a particular candidate, it would only be necessary to furnish the electors, or a part of them, with ballots slightly variant or differing from those prescribed by law. Unless the law is clearly mandatory, or in soma way declares the consequences of a departure from its provisions, the court ought not to defeat the will of the people, when fairly expressed, because of some technical error or mistake in the form of the ballot; and in this case there is no claim or suggestion of fraud on the part of any one, or that the returns now in the possession of the secretary of state do not correctly represent the will of the people as expressed at the polls.

The public importance of this case, and our conclusions resulting as they do in an affirmance of the judgment, have induced us to consider it upon the merits; but in order to avoid misconception, it is thought proper to remark that it is exceedingly doubtful whether the question sought to be litigated can properly be determined in a mandamus proceeding against the state canvassing board, who do not have, and who are not entitled to, the possession of, or an inspection of, the ballots as printed or cast at an election, and hence this cannot be considered as a precedent upon that point.

Affirmed.  