Opinion
Writ of Error from the Court of Sessions of El Dorado County.
COUNSEL
J. R. McConnell, (Attorney General,) and Thomas H. Hewes, for the people, in support of the indictment, cited Comp. L. p. 778, § 29. If the statute is not sufficiently clear, a long and uninterrupted practice under it is good evidence of its construction. McKeer v. Delancey, 5 Cranch, 22. 2 Scam. 408, 416. The duties of the inspectors are ministerial not judicial. 4 Cow. 323. 9 Mass. 162. 9 Ibid. 492.
Newell & Williams, and Robertson, Sanderson & Hume, for Respondents.
No brief on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Muriay, C. J., and Bryan, J., concurred.
OPINION
HEYDENFELDT, Judge
The defendants were Judges of Election, and were indicted for refusing to receive the vote of one Binswanger, who was challenged on the ground of alienage. The defendants declined administering the oath of qualification, upon the ground that the certificate of naturalization was the best evidence, and that Binswanger should have produced it. This was certainly an erroneous conclusion. The 29th section of the election law provides, that to the person challenged, the Board of Judges, in their discretion, may administer an oath, etc.; and the 30th section provides, " If the person thus challenged shall take the oath as tendered to him by the Board of Judges, he shall be admitted to vote," etc.
One of the allegations of the indictment is the refusal of the judges to administer the oath. It will be seen, however, from the above quoted section of the law, that this is a matter left to their discretion; and very properly so, because in many instances it might be an act of supererogation. If the challenged party, upon being questioned, was to admit that he had not been naturalized, or that his naturalization certificate had been issued by some Court which the Judges knew, according to the rules of law, had no jurisdiction of that subject, or in the case of a citizen well known, whose simple answer was a sufficient guarantee of his right to vote; in all these cases the Judges might very properly, in their discretion, decline to administer the oath. But they have no right to require the production of the certificate of naturalization, because the statute expressly provides a lower standard of evidence as sufficiently enabling.
And when, in the exercise of their discretion, the Judges have once administered the oath, and it has been taken, the right to vote is concluded, and it is error to deny it. The party swearing falsely, and voting without right, is punishable under the provisions of the criminal code, and that alone is intended as a remedy.
While an important part of the object of the election law is to guard the ballot box against illegal voters, it is an equally important feature to simplify and facilitate the process of voting; and this could not be successfully effected, if resort was to be had, in every case of challenge of a voter, to a trial requiring the highest order of evidence, and an inspection of written and sealed certificates, involving an inquiry into their genuineness, objections to their form, and all the various litigious points which are usual in a trial at law.
The judgment is reversed, and cause remanded.