Page:North Dakota Reports (vol. 48).pdf/801

two of the election officers shall, upon réquest from the voter, render assistance, but that such officers shall give no information regarding the same. In their discretion, the judges may require the voter to declare his disability under oath. Section 988, Compiled Laws of 1913. Where election laws require a declaration of disability as a condition of receiving assistance from election officers, such declaration is regarded as a mandatory requirement, the failure to observe which results in an illegal vote. Tebbe v. Smith, 108 Cal. ror, 41 Pac. 454, 29 L. R. A. 673, 49 Am. St. Rep. 68; Huston v. Anderson, 145 Cal. 320, 78 Pac. 629; Gill v. Shurtleff, 183 Ill. 440, 56 N. E. 164; McCreery v. Burnsmier, 293 Ill. 43, 127 N. E. 171; Major v. Barker, 99 Ky. 305, 35 S. W. 543; Pace v. Reed, 138 Ky. 605,128 S. W. 891; Atty. Gen. v. McQuade, 94 Mich. 439, 53 N. W. 944; Atty. Gen. v. May, 99 Mich. 538, 58 N. W. 483, 25 L. R. A. 325; State ex rel. Braley v. Gay, 59 Minn. 6, 60 N. W. 676, 50 Am. St. Rep. 389; McEwen v. Prince, 125 Minn. 417, 147 N. W. 275; Board v. Dill, 26 Okl. 104, 110 Pac. 1107, 29 L. R. A. (N. S.) 1170, Ann. Cas. 1912B, 101. In our opinion there can be no distinction in principle between a statute which permits assistance upon an ordinary parol declaration of disability and one which requires a sworn declaration. There is only a formal difference between the two. Both require that the fact which furnishes occasion for the rendition of assistance shall be first made to appear. In their essence they are the same. A judge of the election has no more right to accompany a voter to the booth where the fact of disability does not appear than has any other person, and if a judge of the election is free to observe the ballot or watch the voting of any person who calls him, or is willing that he shall look on, there is no reason why others may not have the same privilege. Thus the secrecy of the ballot might be destroyed or become dependent upon the whim of the individual voter. Manifestly, this policy would contravene the express statutory prohibition, applicable to the voter himself, against exhibiting the ballot. There is a distinct species of corruption that this provision is designed to prevent. The voter cannot thus exhibit proof to others that he has voted in a particular way. We are of the opinion that the only construction which can be placed upon § 988 of the Compiled Laws of 1913, regarding assistance to voters, which shall make it consistent with the constitutional requirement of secrecy and with the other legislative enactments looking toward the same end, is that it is mandatory in character. Being mandatory, it follows that the failure to ob-