The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-11-18

a
70 The validity Of the election law ana
the duty of the canvassing board, was
forthcoming yesterday at brleI seS-
sion of the county commissioners SIT
ting as a board Of canvassers.
As predicted in The Herald some
DAVIS go. the county attorney declares
tho law unconstitutional and that the
recent election was, in fact, no edec-
tion. Mr.. Whittemore, however. has
changed HIS views as to the jurisGfc-
ton of the board of canvassers in the
matter cf bringing on a contest
through q refusal to issue cert1fi-
Gates OF election The attorney says
the boards duties are purely minis
terfal and it can therefore not con-
slider any question as to the validity
OF an election, but must issue the GER
tif1cates.
The effect of st all is thar election
certificates wiz be issued and so far
as the board of canvassers as a body
is concerned, there will be no contest
The initiative may be taken by other
parties, however, and the much-dIs-
cussed problem may not yet be def
nitely settled.
County Attorney Whittemore's oTin-
ion is as follows:
To the Honorable Board of County Com
missioners of Salt Lake County, Utah
Gentlemen have received from the
county clerk d copy OF the resolution
adopted by the board on the 18th inst,
in which it is recited that the board
has completed the canvass of the returns
of the general election held in Salt Lake
county on Tuesday, Nov. 8 1886, and that
the board is now preparing TO compute,
the total number of votes cast for each
person voted for at said election and to
declare the result of said election, and
that doubt has arisen as to the duty
Of the board in declaring duly elected the
persons Who from the face of the re-
turns, appear to have received the high
est number of votes for each Office IN
tended to be filed, it being claimed that
the board has no authority to make such
declaration and to certify to the result
of the canvass, for the alleged reason
that said election IS claimed TO be void
and unconstitutional, and that therefore
I am directed 10 furnish the board an
opinion as to the legality of said cleo
ton and to advise the board as to its
duty in the premises.
to the validity Of the election, it will be
necessary to consider certain provisions
of The state constitution and the laws
enacted Hereunder
Section of article of the constitution
is as follows:
"AIl elections shall be by secret ballot.
Nothing in this section shall be con-
strued 10 prevent the use of any machine
or mechanical contriyance for the pur-
pose OF receiving and registering the
votes cast at any election, providing that
secrecy in voting be preserved
If this provision is merely directory. an
election he'd n disregard of its terms
will not be set aside, but, if mandato--r.
a viola ticn Of these provisions will VOID
the election, without regard to the mo-
tive of the persons guilty CT the viola
ton and without any inquiry into the
effect OF the result Of the election.
The question, therefore, presents itself,
is the requirement that elections shall be
by secret ballot mandatory or merely
direc.ory?
Section &C of article of the constitu-
ton is as follows:
The provisions of this constitution are
mandatory and prohib:tory, unless, by
express words, they are declared to be
otherwise
A careful perusai Ct section fails to
disclose any express words declaring the
requirements Of the section to be other
wise than mandatory and prohibitory. In
fact, the words in section are such as
TO show clearly and Enthusiastically that
its provisions are mandatory and prohib-
itory In Incorporating this provision
into the constitution. the trainers of that
instrument followed the well-settled prin-
ciples Of constitutional law. Cooley. in
his work on Constitutional Limitations.
says public policy requires that the
veil Of secrecy should be imDenetrable.
unless the voter himself voluntarily de-
termines to lift it: 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 &c Of chapter 60 of the laws of
Utah. 1885. provides that after the voter
has prepared his ballot, it shall be
handed TO the judge in charge of the bal
lot-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. in such manner as to
rot expose or show how the voter
has voted. the same to be num-
bared IN the order in which Il
shall be received. consecutively, so
as to permit the corner to be turned
and pasted down with mucilage, which
shall be done so that the number is not
thereafter visible. and the same number
shall be recorded by the election judge
or clerk in the list of voters opposite the
name Of such voter. =
1t next becomes necessary to determine
whether this provision for placing num-
bers on the tally book, opposite the
name of the voter, and the corresponding
number on the back of the ballot, before
It is deposited, violates the right guaran-
teed to the eIector under the constitu-
fion Of voting by secret ballot We are
aided IN reaching a conclusion upon this
particular provision by the decisions of
courts, where the same provisions in the
laws of other states have been brought
into question.
The supreme court of Indiana, in Will
Jams VS.. Stein, IS Ind. So, held such a
statute unconstitutional, as violating that