| Show IT IS INVALID county attorney C U 0 whittemore this afternoon handed down BD an opinion on OB the legal status statue or of the recent ele oJe otton etton it dec declares Jares that the ballot arse was not a secret one as defined by the provisions ot of the constitution which are manu mandatory story and prohibitory therefore the election itself to absolutely invalid la valid and la is in fact no eleo alec lion however the board of canvassers la Is advised that it must perform KB its duty which is merely ministerial and that the county clerk must daunt issue the certificates floa teft of election required by law un ices he la prevented irom from doing moby no by the intervention of a court of competent jurisdiction the opinion was delivered to the board of canvassers at KB its meeting this afternoon and is as follows lu in full to the honorable boari board of county Commissi commissioners omers of salt lake county utah Gentle gentlemen meu I 1 have received from the county clerk a copy or the resolution adopted by the board on the isab last in which it Is recited that the bard b jard has baa about completed the canvass of the returns of the general election held in calt lake county on tuesday november sri 1896 and that the board to Is now preparing to compute the total number of votes cast far each person voted lor for at said mid election and to declare the result of said elect lun fun and that a doubt has arisen as to the duty of the board in declaring duly elected the persons persona who from the face of the return eg appear to have received the highest number of votes for each allee intended to be filled it being claimed that the board has baa no author ity to co make such declaration and to bermy tu to the result ot of the canvass for the alleged reason that said election ejection Is i claimed to be void and unconstitutional and that therefore I 1 am directed to furnish the board an opinion as to the legality of said election and add to io advise the be board as aa to its duty la in the pro pre mil liag in order to determine the question as to the validity oi of the election it will be necessary to consider certain provisions of the state constitution and the laws enacted section 8 of article 4 of the con ution lose la aa follone fol lowE all elections shall ball be by secret ballot nothing lu this section shall be construed to prevent the use oi of any machine or oc con tr trl ivance vance for the purpose of receiving and registering the votes cast at any election providing that thai secrecy lo in voting be preserved pa it this provision Is in merely directory an election held bold in disregard of its terms will oot not be set pet but it if mandatory a violation of these provisions will vold void the election without regard to the motive of the persons guilty oi of the violation and without ROY inquiry into the effect ot of the result ot of the election the question therefore presents itself to is we the requirement that elections shall be by secret ballot mandatory or merely directory director section 26 of article I 1 of the constitution I 1 la as fol follose follo lowE wf the provisions of this constitution are mandatory and prohibitory unless by express words they are declared to be otherwise A careful perusal of section 8 fails to disclose any express words declaring the requirements of the section to be otherwise than mandatory and prohibitory in facts fact the words used in section 8 are such as to show clearly and ald unmistakably that its provisions art are mandatory in incorporating po this provision into the constitution ution the framers of that instrument followed the well settled principles of constitutional law cooley in ila his work on Constitution constitutional rl limitation says public policy requires that the tha veil of secrecy should be impenetrable unless the voter himself voluntarily determines to lift I 1 his ballot is absolutely privileged we are next brought to a consideration of the provisions of the law under which the election in question was held section 26 of chapter 69 of the laws ol 01 utah 1896 provides that after the voter has prepared his hia ballot it shall be handed to the judge in charge of the ballot box who shall immediately write the name of such voter upon the poll list and shall take the ballot of such voter and number it in ink in one corner upon the top thereof 10 lo such manner as to not expose or show how bow the voter has voted the same to be numbered in the order in which it shall be received consecutively so 80 SO as to permit the corner to be turned and pasted down with mucilage which shall be done so that the number to is not thereafter visible and the same number shall be recorded by the election judge or clerk in the list or of voters opposite the name of such voter it next became necessary to deter mine whether this provision for placing numbers on the tally book opposite the name of the voter and the corresponding responding number on OB the back ol of the ballot bailor before it is deposited violates the to the electors lectors lec tors under the constitution of voting by secret ballot we are allied in reaching a conclusion upon this particular provision by the decisions ot of courts where the same provision in the she laws of other states have been brought into question the supreme court of indiana in williams william VO VB stoid 88 ind 89 held such a statute unconstitutional as violating the secrecy implied io in the constitutional provisions that the vote should be by ballot the court in that case saying sayi ng the secrecy which Is ie esteemed by all authority to be esseck hal to the tree free exercise of suffrage is 18 so as much violated by this law as aa it if it had declared that the election should be viva voce 11 this same view was taken in brisbane ve va cleary 20 26 minn hasting case P canada el 1 cases cages and woodward vs ve Barao nf li B K 10 0 P F in all of the cases above mentioned the constitution simply provided that elections should be by ballot and upon an elaborate review of all tie tn e aut authorities bort the he conclusion was waa reached that in this country the ballot implies absolute and inviolable secrecy leo recy and that this doctrine la Is founded in the highest consideration of public policy that the term ballots ballot implies secrecy and that this mode oi of voting was adopted main ly jy to enable each voter to keep secret his bis vote our constitution goes further than any of these and provider not only that elections shall be by ballot tug but that they shall be by secret ballot 02 having reached the conclusion that the provisions of the constitution requiring that all elections shall the be by i eclet ballot and that such constitutional provisions are mandatory anu and prohibitory and having further determined that the provisions for placing numbers on the ballot and a corresponding number opposite the voters voter a name destroys the secrecy of the ballot I 1 am clearly of the opinion that an election held under the provisions of the law above quoted to is absolutely invalid Ina Ild and is in taut fact no election I 1 am further rt requested quested in the resolutions to advise the board as to its duty in the premises all authorities upon the question hold in clear and unmistakable terms that hoards boards of canvassers are ministerial officers only whose duty auty it to is to receive the returns arm the various precincts or counties as the case may be and declare the results as shown by the he face of the returns following these I 1 would alvise this board that you cannot consider any question as to the validity of the election and that you are to cast up the votes given from proper documents and to declare those persons persona elected who appear from the face of the be returns to have the highest number of votes section 27 of chapter of the laws of utah 1896 concerning elections requires the clerk of the board as an soon as the result is declared to enter on the records of said board is a statement of such result which statement must show the whole number or of votes cast in the county the names of the persons voted for the office to fill which each person was voted for the number of votes given at each precinct to each of such persons person the number of votes given in the county to 10 each of such persons and section 28 following requires that the board must declare elected the persons having the me highest number of votes given for each office to be filled by the votes of 0 a single county or subdivision thereof section 29 following requires ulrea that ue the county clerk must immediately make rout cut and deliver to such each person except to the person elected district judge a certificate of election signed by him and authenticated with his stal I your four duties therefore are clearly defined by statute atai ute and unless you are prevented by the intervention of a court of competent jurisdiction juried lotion from arora performing those these duller the of the be sections above quoted should be promptly complied compiled with very submitted C 0 whittemore ORB county attorney for salt lake county utah |
