
    (Fayette County Court of Common Pleas).
    Nye Gregg v. William B. Rogers.
    1. The deputy supervisors of election of the county have the power to decide questions of substance, as well as form — questions that arise in the “ course of the nomination ” of candidates, including those which arose before, as well as after, the certificates of nomination are made by the proper persons.
    2. Their decision of such questions is final.
    3. Non-observance of the requirements of the election law which did not afleet the result of the election, its fairness and honesty, did not invalidate the election, although the requirements are mandatory in form.
    4. Either political party may nominate and have placed on its ticket, as candidates for offices, persons who have been nominated for the same office by another political party.
    5. Quaeie: Can the legislature legally prohibit such nominations ?
    (Decided February, 1894.)
   Pugh, J.

This is a contest for the office of Prosecuting Attorney of Fayette county. The decision of the controversy logically turns upon the true construction of some of the provisions of what is designated the Australian ballot law.

Like all new laws, it has some imperfections; it contains some ambiguous provisions it is silent upon some subjects where it should speak. This condition is partially due to the fact that the law is not a complete adoption of the Australian system. All of its ideas and principles were not adopted.

To check the bribing of voters, to give immunity to the voters from espionage», intimidation and undue' influence of every kind, to prevent the will of the people from being defeated by fraud, are some of the aims and purposes of the Australian ballot law. The beneficient results gained, especially in the cities, are the comparative absence of “intimidation, vote-hucksters and vote-buyers from the voting places, and opportunities to every voter to vote in absolute secrecy.”

It is also one of the predominant principles of this law that independent and third party nominations are placed upon an equal footing with nominations of regular parties.

That principle is conspicuous in this law, as it is not in similar laws of New York, Pennsylvania and Connecticut.

Except as to some particular provisions, the Australian ballot laws of the different states are not parallel. There are so many differences between them that it is not wise to rely implicitly upon the decisions rendered by the courts of other states. The way through a case like this is not, therefore, lined with authorities by whose light the solution of the issues erected in this case is made easier.

There is no question in this contest touching the number of votes cast for the cantestant and contestee respectively. It was not, nor could it be, controverted that Rogers received a plurality of all the votes cast and counted. The relevant master facts in the case are few in number.

Ñye Gregg was nominated by the Republican county convention for the office of Prosecuting Attorney ; William B. Rogers was nominated by the Democratic county convention for the same office. On the 22nd day of August, 1894, the Populist convention nominated candidates for all the county offices, except Probate Judge and Prosecuting Attorney; but, by a motion adopted by the convention, the central committee of the party was authorized to fill “ the vacancies that now exist, and such other vacancies as may hereafter occur on the ticket.” That committee was composed of ten persons, a number equal to the number of townships, but whether each township was represented by one member of the committee was not disclosed.

On the 14th day of October, 1893, after due notice given to each committeeman, this committee met in Washington, C. PI., and nominated for Probate Judge, W. C. Tanzey; for Prosecuting Attorney, “Wm. Rodgers,” and for Treasurer, J. M. Allen. The latter was nominated in place of Elijah Haigler, who had been nominated by the convention, but had declined. The chairman and secretary of the committee prepared, signed, verified and sent to the Chief Deputy Supervisor of Elections of Fayette county a certificate, certifying that “Wm. Rodgers’” nomination was made by a convention of delegates representing the People’s party.

The certificate was filed on the 19th day of October, 1893. On the 25th day of October, 1893, written objections to this nomination were filed with the supervisors. They were substantially the same objections that were urged in this contest. On the same day objections to the proof-sheet of the blanket ballot, prepared by the supervisors, were filed with them. The record of the supervisors recites that the objections to the proof-sheet of the of the ballot were, on the 26th day of October, 1893, overruled by them; but it is utterly silent in regard to the disposition made of the objections to the certificate. Afterward, however, the ballot, as prepared, with the name of “ Wm. Rodgers” on the Populist ticket as the canditate for Prosecuting Attorney, was printed and officially promulgated by the supervisors. That was a tacit decision on the subject adverse to the contestant. The name of Rogers on the certificate was not spelled as it should have been, and as it was spelled in -the Democratic certificate. It contained the letter “d” between the letters “o” and “g.” The initial of his middle name was also omitted. But the sound of his surname was the same as if it had been correctly spelled. The proof conclusively proved that the contestee was the person nominated. These objections are not of a substantial char- . acter, and will not be further noticed.

In Marion township the election officers were Messrs. Thompson, Barker, Ward and Crabtree. It was agreed that the first two were Democrats. The contestant claimed that the others were also Democrats, while the contestee claimed that Ward was a Populist and Crabtree was a Republican. There was some circumstantial evidence to prove that Ward exhibited some of the symptons of a Democrat, and that Crabtree exhibited some of the symptoms of what is popularly known as a Mugwump ; but the decided preponderance of the evidence established that Ward was a Populist, with an intense hatred of the Republican party, and that Crabtree was a Republican who sometimes scratched his ticket.

There is no rule of law by which a court can, under any set of circumstances, determine whether a person is or is not a Republican.

There is a current creed that one must vote his party ticket, right or wrong, in order to be a true, loyal party man. Every individual has the liberty of embracing such a creed; but this court cannot declare that Mr. Crabtree was not a Republican merely because he sometimes voted against his party nominees.

Sometimes the “ scratcher ” deserves commendation. It is by him that<l excess of party spirit” is often corrected. The fear of his courageous independence often compels the nomination of the best men by his party; it has frequently prevented unwise and vicious legislation by his party leaders.

Independent scratching only deserves censure when it degenerates into “canting self-righteousness,” or that self-conceit, which makes one imagine that he is always greater than his party.

The ballot statute concerns itself, and deals, with three periods of time: ’ first, the period which begins with the nomination of candidates, and ends with the election ; secondly, the period when the votes are cast; thirdly, the period during which the votes are ascertained and counted.

Its first regulation, is that each political party which polled at the preceding general election a given per cent, of the votes, may, by convention, caucus, a meeting of qualified electors, a primary election held by the electors, or Central or Executive Committee, make one nomination for each office to be filled at the next election. But it does not define what either a convention or a caucus is, as-the law in some states does; nor does it provide how, or by whom, the committee shall be constructed; nor does it prescribe what principles parties shall represent and advocate. These matters are left to the exclusive control of the political parties.

No candidate, or his friends, can have his name placed on the official ticket unless he has first been nominated by one of the party agencies mentioned in the law.

The law next regulates the certificates. They must state the facts which are enumerated- To stimulate and enforce truth-telling in politics, the certificate must be verified by the affidavits of the officers of the convention, caucus, meeting, primary election or committee, The committees are empowered to fill vacancies which may occur in the list of nominations, unless it be otherwise specially ordered, when the committee is selected, and is so certified.

Certificates of the nomination, for the office of prosecuting attorney, have to be filed with the County Board of Deputy Supervisors of Election, within twenty days before the election, and if they are in apparent conformity with the commands of the law, they are to be deemed valid, unless written objections are interposed within five days after they are filed. ■

The deputy supervisors are required to consider and pass upon the objections and “ questions arising in the course of nominations”, and their decision is final. Vacancies caused by death, withdrawal or declination of persons who had been nominated, must be filled according to specific directions of the statute.

Certificates, verified by the oath of the chairman and secretary of the committee that filled the vacancies, stating the causo of the vacancies, the names of the persons nominated, the names of the original nominees, and all other information required to be given by an original certificate, has to be filed with the proper officer.

The questions for decisions in this case relate to the nomination of Rogers by the Populist party, and the certificate of such nomination. The charge in the contest paper is that they are tainted with fraud. Their legality is also challenged.

Fraud consists of some wilful act or omission which is uneonscientious, and a violation of good faith, and by which one person obtains an undue advantage over another. It was urged with some degree of ingenuity that one of the objects of the reform ballot law is to “ defeat the machinations of the enterprising politicians.” The claim was not boldly made, but I inferred that it was considered a fraud for one political party to nominate for office a candidate who was on another party’s list of nominations; or, if it was competent, that it gave opportunities for the perpetration of fraud.

The law does not prohibit a political party from nominating for office a candidate who is on another party’s ticket, and the power of the legislature to enact into law such a prohibition is very doubtful.

The right to make such a nomination may be abused; it may even be made an engine of fraud. In an election case, such a fraud might be a sufficient reason for an adverse decision against the candidate who was bene•fited by the fraud. But it must be proved, and not assumed. The opportunity to commit fraud is of no moment, if it was not utilized.

There was no fraud proved in this case, and I do not understand that counsel for the contestant claimed there was such proof. If the vacancy on the Populist ticket for the office of Prosecuting Attorney, which was filled with Rogers, was such a vacancy as is meant by section 2 of the statute, its requirements were not satisfied, and this court, guided by the decision in Price v Lush, 24 Pac. Rep. 749, would have to throw out the Populist votes cast for Rogers, and declare Gregg elected Prosecuting Attorney. But it is obvious that Rogers was not nominated to fill such vacancy. It is true the convention designated the place left open as a vacancy. But it is likewise true that the term was not used by the convention in the sense of the statute. That meaning presupposes that some one had been previously nominated for the office, and had either died, withdrawn, or declined. ‘The Populists had not previously nominated any person for Prosecuting Attorney. The language of the motion adopted by the convention, “ vacancies that now exist,” clearly shows that the power of the committee was to nominate persons for the offices for which the convention, had made no nominations. The committee was to make original nominations. It also had the power to fill vacancies which were contemplated by the statute cited. That power was conferred by the words of the motion, “ and such other vacancies as may hereafter occur.”

The statute, section 6, expressly authorized a central committee to make an original nomination. But it may be judicially noticed that a committee would not, and probably could not, exercise such power, unless either expressly or impliedly authorized by the party it represents, the authority being given by a vote of the party convention, or by some habit or usage of the party.

It is a resonable hypothesis that it was the purpose of the legislature to have nominations made in this way by the committees.

I am not embarrassed in reaching the conclusion that the nomination of Rogers by the Populist committee was an original nomination, and one which the statute, considering the action of the convention, authorized the committee to make.

The certificate of his nomitation was not what the law required. It certified what was not true. It affirmed that the nomination was made by a convention of delegates. It is only on the principle of agency that it could be said that the nomination was made by the convention, the committee being the agent of the convention. But that is too technical to be practical.

The certificate was obnoxious to the objection that it did not state the truth, namely, that the nomination was made by the committee, and probably that the nominee represented the Populist party. But it was drawn in apparent conformity with the law, and unless written objections were interposed within the five days, it was valid everywhere and for all purposes, the law declared.

Written objections were filed, but not till seven days after the filing of the certificate. I am not willing to hold that this failure to file them within five days rendered the objections invalid; such a conclusion would be repugnant to. one’s sense of fairness an'd justice. I prefer to regard that requirement as merely directory, so that a failure to comply with its strict letter did not vitiate the objections.

What was the scope of the power given to the chief deputy supervisor in passing on objections is a perplexing question. One proposition is not debatable, and that is, that the decision of the supervisors on objections and questions coming within the purview of their power, is final, conclusive, against everybody.

One construction is, that they are limited to hearing and deciding objections which concern matters of form. There is authority to support this, but the statute construed, is not as broad as our statute.

The supervisors are empowered to decide not only objections, but also “questions arising in the course of nominations for county offices.” Does this not include all questions? questions touching substance as well as form — judicial as well as ministerial powers ?

I am aware that it has been plausibly argued that this is a most “unusual investure of power,” for ministerial officers; that, there being no provision made for taking testimony, swearing of witnesses, and for doing other acts necessary and incidental to the exercise of judicial power; and it being such “ a vast, far-reaching power”, a power by the exercise of which the “ political destinies of a state may be determined,” it must not be assumed that it was designed to be conferred on ministerial officers, unless the language of the statute bestowing the power is clear, unambiguous, and unequivocal.

But it might be replied that no court has the right to fritter away the legislative language by subtle refinements and abstruse speculations. Nor has a court any right to resort to a species of verbal thimbleriggery to get rid of the meaning of a law, just because it happens not to accord with the judge’s idea of policy and expediency. Here, in the statute under consideration, the supervisors are required to decide “questions arising in the course of the nominations for county officers.” That signifies all, not some, questions. It is not merely objections that relate to the certificates of the nominations, which they are commanded to decide. The power reaches back of the certificate.

It is not necessary, however, to adopt this extreme view. Assume that the power of the supervisors only extended to the decision of questions and objections in regard to the form of nominations and certificates of the same. What are thsee matters of form? Examples are mentioned in one case,being defects in the “ designations of the offices, in the names of the candidates and formal defects which maybe covered by amendments.” These examples were not intended to be exhaustive.

I have assumed that there may have been two mistakes made in the Populist certificate of Roger’s nomination. One is, that the nomination was made by a convention. There was no explicit requirement that any statement on the subject should be made in it. The only command of the statute was that certificates “ shall state such facts as are in this act required for its acceptanco.” In the context of the law these facts are specified. Still, the mistake that was made was only a formal defect; it was not substantial.

It was not an error in naming the agency of the party that nominated him. It was no more a substantial, an incurable, defect than would be an erroneous name of a candidate. In the case of such a defect, it is true that there must be enough in the name stated in the certificate to show that the person really nominated was intended to be named.

Here then, is enough in the certificate to show that the Populist party was endeavoring to nominate Rogers; the certificate is not so defective-that one could infer that some other party nominated him. No two reassonable men could disagree about its meaning.

It is a query whether there is not another error in the certificate. In-endeavoring to comply with the express requirement that “the party or political principle which ” the nominee represented should be expressed in not more than three words, the word “Democrat” was employed. Did this mean that the party to which Rogers belonged or political principles which he really believed, should be stated, or that the name of the party nominating and adopting him, or its principle, should be expressed?

The first construction is the easier to work out; but the second is the-more reasonable one. When Rogers was nominated by the Populists, the law contemplated that he should, on their ticket, represent that party or its principle. But it did not mean that he belonged to that party, or even-believed its principles. It is, however, sufficiently obvious from this certificate that the Populists intended that Rogers sh ould represent that party,, and that he should be placed on their ticket. If they had not so intended, he could not have been nominated. They evidently misconceived the meaning of the law. This construction makes the certificate inconsistent-with itself; it makes a serious defect in it; but the defect does not make the certificate void, for there is still another and a more satisfactory answer to the objection based on these defects. It is only the most important requirements of this law, and only those which affect the actual merits of the election, that are mandatory.

McCreary’s Elections, sec. 190.

_ “ Those irregularities which are not declared by law to be fatal, or which do not render the result of the'election doubtful, should be ignored,, and the provisions of the law that were infringed upon by such irregularities should be deemed merely directory.”

In the dissenting opinion of Judge Groesbeck, in State v. Barbee, 82: Pac. Rep. I find this language, which I quote :

“The rigid rule of construction adopted in England, as shown in the opinion in Price v. Lush, supra,is monstrous. No American case, with the-exception of the Montana case, has gone so far as to establish the doctrine-that the failure of officers of a political nominating convention to properly certify the facts required to be certified to by statute, would deprive such-a candidate of the office to which he was elected. The provisions of the-statute in this statute are, in my mind, for the guidance of the officers who-prepare the official ballot. While an officer charged with the duty of receiving, filing and preserving certificates of nominations might not be compelled to place the names of the candidates not certified, or irregularly certified, upon the official ballot, yet, if he does so without objection, I think all inquiry should end there. Any other construction would operate to delude the unsuspecting voter, who has a right to assume, when he receives; from the election judges a ballot purporting to be an official ballot, that it-is official and properly made out by the people’s agents designated by law for that purpose.”

Our statute did not declare what the consequence of a disobedience of its provisions would be; nor did it declare that a compliance with them was essential to the validity of the electiton. Neither the contestant, or any Populist voter, was wronged by the error in the certificate. They neither deceived or misled any Populist into voting for a person he did not intend to vote for, and, therefore, they did not affect the result of the election.

The ignorance of the law of the Populist chairman and secretary and their non-compliance with it, did not prevent a fair and honest election.

The Populist votes cast for Rogers were only about 30 less than those cast for the chief candidate on that ticket; the few ballots that were exhibited in evidence showed that Rogers’ name was crossed by those who cast them. About 30 declined to vote for him. Those are circumstances, not conclusive but strong, which tend to prove that all of the 71 or more Populists who voted for him did so voluntarily, and in the absence of evidence to the contrary, it is satisfactory evidence of this fact.

The will of the majority should prevail although it may not be expressed, in strict conformity with the law. The 71 voters who voted the Populist ticket for Rogers should not be disfranchised merely because this certificate is imperfect.

The language of Judge Conoway in State v. Barbee, supra, is appropos in this case:

“ Here appears a certificate of nomination intelligible though not exceptionable in its terms, but sufficient to convey to the mind of the inquirer the information required in such an instrument. It comes from a proper source. It is not obscure or misleading in its terms. An election follows. There is no such defect in this instrument as could possibly affect the result of that election. Thers is no provision of the statute indicating an intent on the part of the legislature that the statute prescribing what the certificate should contain, and how it should be verified, is so.mandatory that amere formal defect, incapable of affecting-the regular or orderly conducting of the election or its results, should invalidate the election.”

The Australian ballot law is an exotic. In England, where it in-part originated, a statute similar to ours has been in force. It authorized a candidate’s name to be inserted in the ballot paper when he had been nominated in the manner provided by the act; every nomination paper had to state the Christian name and surname of the candidate, and his place of abode, and description; and every person whose nomination paper had' been delivered to the returning officer during the time appointed for the-election should be deemed to have been nominated in the manner required by the act. The returning officer was authorized and required to decide on the validity ol every objection made to a nomination paper, and his decision overruling the objection was final.

A candidate received two nominations, one being valid, the other invalid. His name appeared twice in the ballot paper, “once in respect off each nomination.” One was void because the place of abode and description of the candidate were not correctly stated.

Three hundred and one voters appended their marks to his name under one, and seventy-one voters did likewise under the other, nomination.. All of them, the three hundred and seventy-two voters, intended to vote for this candidate, and if both classes of voters could be added together he had a majority, and this entitled him to be returned as elected.

In a case where these facts were proved the adjudication was, that as-the candidate had been duly nominated once, and had received a majority of the votes cast, he was duly elected. The defect in the ballot paper which consisted in placing the name of a condidate in it who had not been-legally nominated, was construed to be only formal, and that as no voter was deceived or misled by it, the result of the election was not affected by it.

The courts of England, as well as those of Australia, have placed a very strict construction on their laws, the disposition being to hold all, or nearly all, of its directions and requirements to be mandatory. Yet herein this case, the ruling substantially was that non-observance of a provi-sion which was in form mandatory, but did not affect the result of the election, its fairness and honesty, should not be allowed to defeat the candidate who had received a majority of the votes.

Maynard, Daugherty & Worthington, for contestant.

Logan, Hidy & Gardner, for contestee.

Northcote v. Paulsford, 10 L. R. C., p. 476

The case at bar is analogous to that case. Rogers, it is agreed, was legally nominated, that is, by the democratic convention. The votes received on both tickets, if added together, give him a majority of the votes. The result of the election was not affected by the manner in which his nomination was placed on the ballot. Even if the directions of the statute which relate to the manner and course of his nomination were in form mandatory, and even if one of his nominations, his nomination by the Populists, was irregular or illegal, these facts are not sufficient to-outlaw the votes cast by the Populists for Rogers, and thus defeat the will of the electors.

There are pretexts for rejecting the seventy-one votes cast by the Populists for Rogers, which would have enabled me to reach a conclusion in harmony with my political sympathies, but they are only pretexts. They do not commend themselves to one’s reason or sense of moral fairnes; nor are they sustained by the spirit of the election law.

Judgment for the contestee.

(Affirmed by the Circuit Court.)  