
    The State of Ohio v. Vause.
    
      Indictment under Sections 2966-7, 2966-37, and 2950, Revised Statutes — Charging judge of elections with looking at ballot of voter — And disclosing how ballot was marked — Such indictment charges offense under Section 2966-46, Revised Statutes.
    
    When an indictment drawn under favor of Sections 2966-7, 2966-37 and 2950, Revised Statutes, charges in substance that the defendant, being the duly appointed and qualified presiding judge at an election, received a ballot offered by an elector, properly folded, to be by him deposited in the ballot box; and ' thereupon the defendant unlawfully, fraudulently, knowingly and wilfully unfolded said ballot and looked at the same and saw for what persons said elector had voted, and thereupon disclosed to certain persons how and in what manner and for whom said elector had marked his ballot and voted, such indictment charges an offense which is punishable as prescribed in Section 2966-46, Revised Statutes.
    (No. 12781
    Decided May 9, 1911.)
    Exceptions to the Common Pleas Court of Ross county.
    The facts are stated in the opinion.
    
      Mr. Peter J. Blosser, prosecuting attorney, for the exceptions.
    Complete secrecy is the foundation of our system of voting by ballot. 15 Cyc., 289; McCrary on Elections (4 ed.), Sec. 488; Cooley’s Const. Lim. (7 ed.), 911; Williams v. Barker, 4 N. P., N. S., 599; Sections 2950, 2966-7, 2966-37, 2966-45, 2966-46, Revised Statutes.
    The defendant is guilty of a violation of Section 7058, Revised Statutes.
    
      First: Section 2950 provides that when .the judge of election receives the ballot “he shall immediately put the ticket into the box without inspecting the names written or printed thereon.” The defendant “wilfully neglected such duty” by unfolding the ballot and inspecting the names thereon, and by not immediately putting the ticket into the box.
    
      Second: The oath prescribed by Section 2966-7, Revised Statutes, imposed a duty upon the defendant not to disclose how any elector.voted. It was the duty of the defendant not only not to inspect the elector’s ballot but also not to divulge for whom he had voted. After he had gained knowledge as to how. the elector marked his ballot, he “wilfully neglected his duty” to keep that knowledge secret.
    
      Third: In unfolding the elector’s ballot and divulging for whom he had marked his ballot the defendant was “guilty of corrupt conduct in the execution of his duty.” Johnson v. Southern Pacific, 196 U. S., 1; McInerney v. United States, 143 Fed. Rep., 729; Commonwealth v. Gale, 10 Bush (Ky.), 488; State v. Pinney, 13 O. Dec., 210; Barker v. State, 69 Ohio St., 74; State v. Haugh, 4 C. C., N. S., 81; Conrad v. State, 75 Ohio St., 52; United States v. Winn, 28 Fed. Cases, No. 16740.
    
      Mr. James I. Boulger, against the exceptions.
    We wish to call the attention of the court to the case of State v. Meyers, 56 Ohio St., 350, as to the intention and spirit of the law and its construction. Sutherland Stat. Const. (2 ed.), 520.
    
      The basis of the argument of counsel for the state seems to be that complete secrecy is the foundation of the Australian ballot system, and therefore if such secrecy is violated, the offender should be punished. This is unsound under the rule laid down in the foregoing case. It is so utterly obnoxious to the language of Chief Justice Marshall in United States v. Wiltberger, 5 Wheat., 76, that it is scarcely worth while to discuss such a theory. We frankly admit that it is the intention of the Australian ballot system to insure secrecy, although that is not its main object, but we most respectfully insist that no man shall be imprisoned merely because he has violated such secrecy, unless there is some statutory authority making such violation a crime.
    In addition to this, there is absolutely no penalty prescribed for the active violation of the duties imposed upon an election officer by Section 2950, Revised Statutes.
    It is also contended by plaintiff that Section 2966-7, Revised Statutes, affords some ground for the reversal of the court of common pleas in this action. This is the statute that prescribed the oath to be taken by election officials other than those serving in registration cities.
    The mere fact that the statute provides for such an oath as the one therein referred to, does no l affect the question here discussed. There is no penalty prescribed for- the violation of the oath, which is what is known as a promissory oath, and the breach of which does not involve the violator in a crime. The authorities agree that no officer can be punished for perjury by reason of non-failure to comply with the conditions of such oath. 2 Bouvier’s Dictionary, 529; 2 Bishop’s Crim. Law, Sec. 1026.
    The main contention, however, of the prosecuting attorney is that the indictment charges the defendant with a violation of Section 2966-46,-Revised Statutes.
    It will be noted, that this section provides for violation of a duty imposed “by this act.” Therefore it devolves upon us to examine the act as it was originally passed. This is true because if the duty which it is claimed that Mr. Va-use violated was not laid down in that act, there can be no crime upon his part.
    The expression “this act,” cannot be taken to include another act in pari materia. 2 Sutherland Stat. Const. (2 ed.), Sec. 522; Rex v. Trustees, 5 Ad. & E., 563; State v. Laning, 7 N. P., N. S., 281; Hall v. State, 20 Ohio, 7.
    
    How can it be contended that in all these sections there is a single, duty laid upon Mr. Vause which he neglected to perform? Nowhere in this act is it made an offense for the judge to divulge how a person, other than a blind,' illiterate or disabled voter voted, (the amendment thereof merely ■ eliminates assistance to those who are not physically disabled). There is no duty prescribed in such act for the judge to keep silent as to the manner in which any other elector voted.
    The indictment does not show the wilful neglect of any duty upon the part of the defendant. The word “neglect” means the omission to do something that should have been done.' It is negative rather than positive. It must be distinguished-from that which is intentional. It is not active, but passive. The charge in the indictment is the very, antithesis of neglect. It charges a positive act.. The claim is that Mr. Vause looked at a ticket to ascertain how a voter had voted. There is nothing, of “neglect” about this. State v. Norris et al., 111 N. Car., 652; Macon v. Shaw, 16 Ga., 172.
    Therefore, we do not think that it can be successfully argued that the taking of this oath enjoins any such duty, as is referred to in Section 7058, upon the judge of election. As we have said, the oath covers knowledge -gained in the performance of the official duties of the judge, while in the case at bar the indictment shows that the knowledge was not officially gained, but, on the contrary, was obtained by reason of the fact that the judge acted beyond and without his jurisdiction. In addition to this, while the taking of the oath probably imposed a moral obligation upon the judge, it did not place upon him a duty neglect of which is punishable by statute. Men are not to be punished for the violation of moral obligations, because the law is not dependent upon morality, but must be considered separate and apart therefrom. 1 Bishop’s Crim. Law, Secs. 211a, 239, 325; May’s Crim. Law, Sec. 4; Harris’ Crim. Law (3 ed.), 4, 64; Smith v. State, 12 Ohio St., 469; Mitchell v. State, 42 Ohio St., 383; State v. Mann, 2 Ore., 241; 12 Cyc., 142; Cook v. State, 59 N. E. Rep., 489; State v. Partlow, 91 N. Car., 550; Railroad Co. v. Commonwealth, 59 Am. St. Rep., 457; Tozer v. United States, 52 Fed. Rep., 917; Ex parte McNulty, 11 Am. St. Rep., 257; Augustine 
      v. State, 96 Am. St. Rep., 772; Matthews v. Murphy, 63 S. W. Rep., 785; Ex parte Jackson, 45 Ark., 164; Czarra v. Board, 25 App. D. C., 443; Johnson v. State, 4 Tex. App., 63.
    In order to render the accused liable to punishment, not only must the act complained of infringe the spirit of the law, but it must have been contrary to the strict letter of the statute. 1 McClain on Crim. Law, Sec. 85; State v. Fabin, 4 N. P., N. S., 289; State v. Meyers, supra.
    
   Davis, J.

The defendant was indicted for misconduct as an officer of election. There were two counts in the indictment. The two counts were identical except as to the name of the voter and they charged that on November 3, 1908, at an election duly authorized and held in Liberty township in Ross county in this state, for the election of national, state and county officers, the defendant, James Yause, was one of the duly appointed, qualified and acting judges of said election, and was the presiding' judge thereof; that theretofore the defendant had been duly sworn by a person authorized to administer oaths, that he would faithfully discharge the duties of judge of election in said precinct, and that- if he gained knowledge as to how an elector voted at said election, he would not disclose the same; that then and there when the polls were open for the reception of votes as required by law, a duly qualified elector, duly entitled to vote in said precinct, offered to and did vote in said precinct and presented his ballot properly folded to the defendant, the presiding judge, to be by him deposited in the ballot box; that thereupon the defendant unlawfully, fraudulently, knowingly and wilfully unfolded said ballot and looked at the same and saw for whom and for what persons said elector had voted and thereupon disclosed to one Joseph Vause and other persons to the grand jurors unknown, how and in what manner and for whom said elector had marked his ballot and voted, contrary to the form of the statute, etc.

The defendant demurred .to the indictment on the ground that the facts contained in each of the counts thereof do not constitute an offense punishable by the laws of this state. The court of common pleas sustained the demurrer and discharged the defendant; and the case comes to this court on a bill of exceptions by the prosecuting attorney.

Two questions are presented by these exceptions. They are: 1. What is the duty of a judge of election so far as that duty is referable to the circumstances of this case? and 2. What is the penalty, if any, prescribed for violation of that duty?

The answer to the first question involves a consideration of Sections 2966-7, 2966-37 and 2950, Revised Statutes, as they were arranged and numbered when this indictment was returned. These sections of the statutes, as we think, clearly and without ambiguity disclose the mode of depositing a ballot by the elector, its reception by the presiding officer and the duty of the latter upon receiving the ballot. The elector shall fold his ballot so as to conceal the marks thereon and deliver the same, so folded, to the presiding election officer; and the latter shall upon receipt of the ballot, pronounce with an audible voice the name of the elector “and if no objection be madé as to the right of such elector to vote * * * He shall immediately put the ticket into, the box without inspecting the names written or ■printed thereon All of this is fully in accord with the policy of the original Australian ballot law (88 O. L., 449) as expressed -in its title, as follows: “An act to provide for the mode of conducting elections, to insure the secrecy of the ballot and prevent fraud and intimidation at the polls.” The provisions of Section 2966-37, Revised Statutes, are found in part in the act just now cited, and will be found verbatim in the act amendatory and supplementary thereto passed April 18, 1892. (89 O. L., 432, Sec. 22.)

We will consider in this connection the oath which is required to be administered to clerks and judges of elections (Section 2966-7, Revised Statutes), the last clause of which is as follows: “And I further solemnly swear that if, in the discharge of my official duties, I gain knowledge as to how any elector voted at said election I will not disclose the same.” It is contended for the defendant that this oath' imposes no obligation on the clerk or ■judge taking it, to keep secret the knowledge of how any elector voted if such knowledge was acquired by a violation of law; and that the oath applies only to knowledge acquired while in the performance of a duty imposed by law, for example, when a judge assists a blind or illiterate voter. Casuistry such as this seems to deserve a place beside the Devil’s quotations of Scripture, for it is remarkable as much for what it suppresses as for what it asserts. The assertion is: “Nowhere in this act is it made an offense for the judge to divulge how a person, other than a blind, illiterate or disabled voter voted. * * * There is no duty prescribed in such act for the judge to keep silent as to the manner in which any other elector voted.” But this reasoning suppresses and ignores the fact that the oath is just as obligatory on clerks of elections as upon judges, and that clerks of elections have nothing to do with blind, illiterate or disabled voters. Therefore the legislature, in prescribing the form of the oath, was not contemplating a limitation of its obligations to the duty of a judge to assist such voters. When we give effect to the expressed purpose of the act in which all of these provisions appeared originally or have been incorporated by amendment, namely, “to insure the secrecy of the ballot and prevent fraud and intimidation at the polls,” it would rather seem to be the legislative intent to impose both a legal and a moral duty, with solemn sanctions, to keep secret the knowledge of how an elector voted, however that knowledge may be acquired, during the time the officer is exercising the functions of his office, whether the knowledge be acquired legitimately or by accident or by violation of legal duty. Since the defendant insists upon the strict construction of the language of this statutory oath, it is proper to say that we do not violate precedent in our construction. In Barker v. State, 69 Ohio St., 68, Spear, J., said: “We are quite aware that the rule of law and of this court is that a statute defining an offense is not to be extended by construction to persons not within its descriptive terms, yet it is just as well settled that penal provisions are to be fairly construed according to the expressed legislative intent, and mere verbal nicety, or forced construction, is not to be resorted to in order to exonerate persons plainly within the terms of the statute.” _ And in Conrad v. State, 75 Ohio St., 52, it was held that the rule as to strict construction of penal statutes does not require the courts to go to the extent of defeating the purpose-of the statute by a severely technical application of the rule.

But is the contention of defendant correct, that there is no penalty prescribed for the violation of the duties so imposed by Section 2966-37, Revised. Statutes, and Section 2950, Revised Statutes ? The defendant calls to his aid the rule that a penal statute must be strictly construed and strenuously insists that the words “this act” in Section 2966-46, Revised Statutes, limit the operation of that section to the duties defined in the act in which it appears in its present form and that it cannot be applied to any others even though they may have become by amendment a part of the statute in which this penal section is found. This propqsition is not tenable. The penal Section 2966-46 in all of its essential features appears in the original ballot law already cited. (88 O. L., 449, Sec. 21.) It appears again, exactly as it was when the offense here charged was committed, in the act amendatory of and supplementary to the foregoing, also referred to above (89 O. L., 432). So that by the original enactment and by amendment, Sections 2966-7, 2966-37 and 2966-46, Revised Statutes, were blended into one consistent and harmonious whole.

Section 2950, Revised Statutes, first appears in 50 O. L., 311, and was carried along until April 23, 1904, when, along with the sections before mentioned, it became part of the revised laws of Ohio relating to conduct of elections, by act of that date: “To revise the laws of Ohio relating to the conduct of elections * * * and to amend, repeal and supplement certain laws and sections of the Revised Statutes of Ohio herein named.” (97 O. L., 185.) Therefore, the whole contention of defendant as to these sections falls before the settled rule that the whole statute after an amendment has the same effect as if re-enacted with the amendment. McKibben v. Lester, 9 Ohio St., 628; State, ex rel., v. Cincinnati, 52 Ohio St., 419; 36 Cyc., 1164-1165.

The demurrer to the indictment ought to have been overruled; and since we hold that the acts charged are punishable under Section 2966-46, Revised Statutes, it is unnecessary to review the case ■ with reference to Section 7058, Revised Statutes.

Exceptions sustained.

Spear, - C. J., Si-iaucic, Price, Jopinson and Donahue, JJ., concur.  