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of district-attorney of the county; that at this time, there was no lawyer in the county, eligible to the office of district-attorney, of the name of George B. Ela, Ely Ely, or Ely, and that there was no lawyer whose surname was Ely, except the respondent; that there was no lawyer in the county by the name of D. M. Carpenter, M. D. Carpenter, M. T. Carpenter, or whose surname was Carpenter, except the relator; that there were no votes cast in the county, at said election, for any persons of the names of Ely and Carpenter, except for the office of district-attorney; and that both the relator and respondent were practising attorneys, at that time, in the county and eligible to the office.
We are of opinion that these facts were competent evidence to go to the jury. The principal question or matter in dispute was, to ascertain and determine for whom these votes, with the different initials, were intended. Were those given for Carpenter, with the different abbreviations and initials, intended to be cast and given for the relator, Matthew H. Carpenter? And were those given for Ely, with the various initials and abbreviations, intended to be given for the respondent, George B. Ely? And how was this intention of the voter to be ascertained? By reading the name on the ballot and ascertaining who is designated or meant by that name? Is no evidence admissible to show who were intended to be voted for under these various appellations, except such evidence as is contained in the ballot itself? Or may we not gather this intention of the voter, from the ballot explained by surrounding circumstances, from facts of a general public nature connected with the election and the different candidates, which may aid us in coming to the right conclusion? These facts and circumstances might, perhaps, be adduced so clear and strong, as to lead irresistibly to the inference, that a vote given for Carpenter was intended to be cast for Matthew H. Carpenter. A contract may be read by the light of surrounding circumstances, not to contradict it, but in order
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more perfectly to understand the intent and meaning of the parties who made it. By analogous principles, we think that these facts and others of like nature connected with the election, could be given in evidence, for the purpose of aiding the jury in determining who was intended to be voted for.
In New York, courts have gone even further than this, and held, that not only facts of public notoriety might be given in evidence to show the intention of the elector, but that the elector who cast the abbreviated ballot, might be sworn as to who was intended by it. People v. Ferguson, 8 Cow. 102.* This is pushing the doctrine to a great extent, further, we think, than considerations of public policy and the well-being of society will warrant; but to restrict the rule, and say that a jury must determine from an inspection of the ballot itself, from the letters upon it, aside from all extraneous facts, who was intended to be designated by the ballot, is establishing a principle unnecessarily cautious and limited.
In the present case, the jury, from the evidence before them, found that the two votes given for M. D. Carpenter, the four votes given for D. M. Carpenter, the one for M. T. Carpenter, and the one for Carpenter,t were, when given and cast, intended by the electors who gave and cast the same respectively, to be given and cast for Matthew H. Carpenter, the relator. Such being the case, it clearly follows that they should be counted for him. It is not for us to enter upon an examination of this testimony, weigh it and determine whether it would lead our judgment to the same conclusion; we can only say that the testimony was competent, and the jury have declared that
* The elector may be asked for whom he intended to vote, as a circumstance in the case. People v. Pease, 27 N. Y. 45. But evidence of his mental purpose in depositing the ballot, is not admissible. People v. Saxton, 22 N. Y. 309.
↑ In People v. Stevens, 5 Hill 616, it was said by Chief Justice Nelson, that a ballot containing only the surname of one of the candidates, ought not to be estimated by the canvassers.
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it was sufficient to prove the facts found by them. The jury likewise found that the name of George B. Ela was idem sonans with the name of the respondent, and that the eight votes written George B. Ela were given and cast for the respondent, and were so intended by the electors who cast them; and further, that the relator was duly and legally elected district-attorney of Rock county, for the term of two years from the first Monday of January 1855. Upon this verdict, judgment of ouster must be given against the respondent, and establishing the right of the relator.
An instruction was asked for by the relator and given by the court, to which the respondent excepted; and three instructions asked for by the respondent, which the court refused to give, and to this ruling the respondent also excepted. It is believed, that there are no questions arising upon the instructions which have not been anticipated and passed upon in the observations already made.
The verdict shows that the relator received a plurality of the legal votes cast for the office, and effect must be given to this election, notwithstanding the certificate of election has been given to the respondent. A canvassing board cannot create a right to an office; that must be based upon an election. The respondent offered his certificate in evidence, but has not seriously contended that it was conclusive and final; it was perfectly competent for the court and jury to go behind the certificate, and determine who had been legally elected to the office. 4 Cow. 322; 8 Cow. 102; 20 Wend. 12.
Judgment for relator.
Wherever the vote by ballot prevails, it is generally provided, in some shape, that the ballots shall be in such form as not to be outwardly distinguishable from each other. It is, of course, impossible to carry out strictly such provisions of the law; and it has accordingly been held, that where a statute provided that no ballot should be received or counted, unless the same were written or printed upon white paper, without any marks or figures thereon, intended to distinguish one
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ballot from another, ballots upon paper tinged with blue, which had ruled lines (not placed there, however, as distinguishing marks), were legal ballots within the meaning of the act. People v. Kilduff, 15 Ill. 492. But under a similar law, it was determined in Pennsylvania, that ballots having an eagle printed thereon were in violation of the law, and should be rejected. Commonwealth v. Woelper, 3 S. & R. 29. The designation of the particular office intended to be voted for, endorsed on the outside of the ballot, is obviously an important point in determining the result of the election. It has been held, however, that a statute requiring the ballots to be endorsed in a particular manner is directory only, not imperative; and that ballots headed for "trustees of public schools," instead of common schools, sufficiently designated the title of the office, and manifested the intention of the electors. People
v. McManus, 34 Barb. 620. The intention of the electors, in casting their ballots, must control; and therefore, ballots for "police justices" were held to be properly counted in an election for "police magistrates." People v. Matteson, 17 Ill. 167. The ballots are to be construed in the light of surrounding circumstances, in view of which the elector used the language on his vote; and where the description or designation of the office on a ballot, is applicable to two or more offices, parol evidence is admissible to show which of them was intended by the voter. State v. Goldthwaite, 16 Wis. 146: and see State v. Elwood, 12 Wis. 552. Where by law, several distinct offices are filled by the same incumbent, it is not necessary that all the several offices should be designated on the outside of the ticket; the meaning of the word "designate" is, that the voter shall indicate or point out, on the outside of his ticket, by something known or determinate, the offices for which he intends to vote. Luzerne County Election, 3 Penn. L. J. 155; Clinton County Election, Ibid. 160.
A ballot that contains the names of more persons than are to be voted for to fill the vacancies in the particular office, is illegal, and must be rejected on the canvass. Election of School Directors, 6 Phila. 437. Thus, where there were but two school directors to be voted for, and the tickets contained three names, the last to fill a vacancy, when in fact no such vacancy existed, it was held, that such tickets ought not to be counted. Blockley Election, 2 Pars. 534. And it makes no difference, in such case, that one of the three was in fact ineligible to the office, since the question of his eligibility could not be determined by the can
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vassers. State v. Tierney, 23 Wis. 430. But a ballot containing the name of the person voted for, and the office for which he is designated, two or more times, is not, for that reason, to be rejected; it is to be counted as one ballot. People v. Holden, 28 Cal. 124; Case of Ashfield, Cush. Elect. Cas. 583. On the 17th October 1732, the general assembly of Pennsylvania determined that tickets containing a less number of names than, by law, are directed to be returned for representatives, were informal and invalid, and ought to be rejected in the count. Galbraith's Case, 3 Votes of Assembly 184. But this would scarcely be held for good law, at the present day. See Latimer v. Patton, 1 Cong. Elect. Cas. 69. The weight of authority, though there are some conflicting decisions, is in favor of the position, that where a candidate is voted for by the initials only of his Christian name, parol evidence is admissible to apply the ballot to the candidate for whom it was intended; thus, an elector was permitted to testify that a ballot for H. F. Yates was intended for Henry F. Yates. People v. Ferguson, 8 Cow. 102. So, a ballot for J. R. Eastman was counted for John R. Eastman, on proof that such was the intention of the elector. People v. Seaman, 5 Denio 409. And so also, it may be shown that ballots for Benjamin C. Welch, Junior, and Benjamin Welch, were intended for Benjamin Welch, Jr. People v. Cook, 8 N. Y. 67. In England, it has been held, that voting-papers inscribed Wm. Bradley and Willm. Bradley, were admissible as votes for William Bradley. Regina v. Bradley, 3 Ellis & Ellis 634. And the house of representatives of Massachusetts, in 1867, admitted votes for Jonas Champney and J. Champney, though the candidate's name was Jonas A. Champney, and he had a father living and eligible, whose name was Jonas C. Champney. 3 Am. L. Rev. 142. These decisions, however, are not held for law in Michigan, where it has been decided, that a ballot for J. A. Dyer ought not to be canvassed for James A. Dyer; though, even there, the use of a common and well-understood abbreviation will not vitiate the ballot. People v. Tisdale, 1 Doug. 59; People v. Higgins, 3 Mich. 233; People v. Cicott, 16 Mich. 283. And ballots containing a name idem sonans with that of a candidate, but differently spelled, are to be counted as thrown for him. People v. Mayworm, 5 Mich. 146. In Alabama, a ballot for "Pence," when the candidate's name was "Spence," was rejected. State v. The Judge, 13 Ala. 805. And see Opinion of the Judges, 38 Maine 597.
In congress, it has repeatedly been decided, that a candidate is enti