I dissent from the order denying a rehearing of this cause.
The electors of the territory claiming to be a corporation having been deprived by the misconduct of the election board of the opportunity of casting their votes, which the law is intended to secure to them, the onus of proving that the result of the election would have been the same if the law had been strictly complied with was on the defendant. This proof the defendant undertook to make by showing that from the total number of registered voters within the territory affected (viz., 297), there must be deducted four who had died, 17 whose registry had been canceled, 86 removed from the territory, 10 who had voted, but had not voted on the question of incorporation, and 10 who were indifferent and would not have voted under any circumstances — a total of 127, leaving but 170 electors to be considered, of whom 89 — a majority — voted in favor of the incorporation. But conceding that the statute is not mandatory in respect to the hours during which the polls must be kept open — a proposition by no means clearly established — and that all of the 86 supposed removals were fully proven — a point vigorously contested by the appellant — and fully conceding the propriety of deducting the number of deceased electors, the number of canceled registrations, and the number of those voting but failing to vote for or against incorporation, it is still necessary to maintain that it was proper to exclude also the 10 voters who are said to have been so indifferent to the result that they would not have taken the trouble to vote if the polls had been kept open all day. For including them there would have been 180 electors to be considered, and of that number 89 is not a majority. Now, there is in my opinion a very grave objection to making a precedent applicable to all special elections hereafter to be held, which, in case of a close contest, where the electors have been deprived by the misconduct of the election officers of a fair opportunity to cast their votes, will enable interested parties to give validity to the result of the canvass by inducing a small number of electors, who have not voted, to say that they would not have voted if the law had been complied with. Such a doctrine is subversive of the policy of the secret ballot, the aim of which is to take away all temptation to the use *Page 179 of bribery, and all effective means of coercive influence. Under its operation a bribe giver can never know that the goods will be delivered, and one who is dependent upon the goodwill or forbearance of another for his livelihood may safely disregard the demands of his employer in casting his vote. But an elector who is willing to accept a bribe to vote either way upon a given proposition would be very likely to forego the privilege of voting in the absence of any inducement to vote in a particular way, and after the election could be very easily induced to swear that he had never desired to vote, and — what is a much more serious evil — an elector who had been deprived of the opportunity of voting against a proposal might after the election be put to the alternative of risking the support of his family, or of swearing that he had never desired to vote. To preserve the integrity of the secret ballot against such practices as the doctrine of this case will sanction is vastly more important, in my opinion, than the validation of a municipal charter brought into existence by such dubious practices. If the people of Larkspur desire a charter they can easily secure it by complying with the law.
Sloss, J., concurred.