Easterbrooks v. Atwood, 83 Vt. 354

83 Vt. 354 | Vt. | 1910

Powers, J.

At the last annual meeting of the town of Lyndon, the parties to this proceeding were rival candidates for the office of lister for a three year term. As counted and announced, the first ballot resulted in 57 votes for the petitioner, and the same number for all others. A second ballot was taken -without a choice, and .on the third ballot, the defendant received a majority of all votes cast, and was declared elected.

On the first ballot, in addition to those included in the announcement of the moderator, there were thirteen printed ballots cast, which contained thereon in small type, the words “For Road Commissioner,” below which, in large black letters, was the name “D. E. Easterbrooks. ”

The only question presented is whether or not these thirteen ballots, or any of them, should have been counted for the petitioner for the office of lister.

The facts above set forth are agreed to; and it is further agreed that the petitioner is to have the benefit of so much, if any, of the depositions of U. S. G-rant and Henry Gilman, as is legally admissible to establish the intent with which the thirteen disputed ballots, or some of them, were cast.

So far as the deposition of G-ilman is concerned, it may be rejected without special consideration. All that it shows is that he cast one of the thirteen ballots, and that he did so at the call of the moderator for votes for lister. But how he happened to use this kind of a ballot, and what he intended by it are questions left uncertain. Grant’s deposition, however, shows that he cast one of the disputed ballots, and inferentially shows that he cast it for the office of lister. He does not directly assert this fact, but we think that it fairly appears from what he does assert that this was his intention.

In determining for what person or office a disputed ballot should be counted, the intention of the voter who cast it is the controlling factor. Cooley Const. Lim. (7th Ed.) 914; State v. Elwood, 12 Wis. 551; McKinnon v. People, 40 Ill. 305. This intention is to be gathered from the ballot itself read in the light of the surrounding circumstances of a public character — extrinsic evidence of which is admissible. Cooley, 919; Gumm v. Hubbard, (Mo.) 11 S. W. 61, 10 Am. St. Rep. 312, and instructive note; Wimmer v. Eaton, (Ia.) 34 N. W. 170, 2 Am. St. Rep. 250; Brown v. McCollum, (Ia.) 41 N. W. 197, 14 Am. St. Rep. 228; Atty. Gen. v. Ely, 4 Wis. 420. But the voter’s intention must ultimately be found in the ballot itself, and extrinsic evidence is admissible only in aid of the ballot. Therefore, it cannot be received when the ballot is too defective to express any intention whatever — Cooley, 919, Page v. Kuykendall, 161 Ill. 319 — nor is it admissible to contradict the ballot. People v. Seaman, 5 Denio 409; State v. Steinborn, 92 Wis. 605, 66 N. W. 798, 53 Am. St. Rep. 938; State v. Tierney, 23 Wis. 430; Beardstown v. Virginia, 76 Ill. 34.

It follows from an application of the rule to the ease in hand, that the petitioner is not entitled to any benefit from the depositions, and that the thirteen ballots cannot be counted for him for the office of lister. To permit it to be shown that they were intended for that office would be to allow a direct contradiction of the plain terms of the ballots as cast. This ought not to be, and is not allowable.

Fenton v. Scott, 17 Or. 189, 20 Pac. 95, 11 Am. St. Rep. 801, and Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 779, 13 L. R. A. 761, 25 Am. St. Rep. 212, are in point, though several offices were there being voted for on the same ticket.

In the first named case, the parties were rival candidates for the office of County Judge. The disputed ballot was printed as follows:

For Clerk JOEL WARE.

For Treasurer J. S. LUCKEY.

For County Judge RODNEY SCOTT.

When this ballot was cast, the name JOEL WARE had a line drawn through it, and at its right was written the name J. E. FENTON. The name RODNEY SCOTT also had a line drawn through it, and at its right was written the name L. BILYEU. There was no candidate for the office of clerk by the name of J. E. Fenton, and no candidate for the office of judge by the name of L. Bilyeu. It was held that the ballot must be counted for Fenton for clerk and not for judge.

In the last named case, the parties were opposing candidates for the office of Judge of the Superior Court. The disputed ballot, so far as need be shown, was printed as follows:

18. Judge of the Superior Court, THOMAS RUTLEDGE.

19. Judge of the Superior Court, J. W. OATES.

20. State Senator, Tenth District, ROBERT HOWE.

As cast, the ballot showed the name ROBERT HOWE erased, and the name of the respondent written on a line with it. It was held that the ballot could not be counted for the respondent for the office of judge, citing People v. Seaman, supra, and applying the rule above stated.

Petition dismissed with costs.