84 Minn. 85 | Minn. | 1901
This is a contest over the office of county commissioner, Third district, Blue Earth county. The court below found the facts, and, as a conclusion of law, that the contestee, Upson, was duly elected to the office.
There were twenty-nine ballots in dispute when the statutory referees finished their labors and made reports, — one being signed by two referees, the other by one, — and the court below was simply required to pass upon these disputed ballots. As we regard the case, we are not compelled to determine as to all of these. The contest is disposed of by examination of those which have been relied upon by the attorney for the contestant, Hughes,
We here call attention to the fact that the names of the candidates for the office of county commissioner were printed last upon the ballot, immediately below a heavy black line, above which were the names of the candidates for superintendent of schools.
In tlie election law (G. S. 1894, §141) which prescribes rules for determining the intention of a voter, it is provided that •
“When the elector shall have written the name of a person in the proper place for writing the same, he shall be deemed to have voted for that person, whether he makes or fails to make a cross-mark (X) opposite such name.”
This is really a repetition of a part of section 105, where the rules for making and folding ballots are laid down. The name of John “Rhoads” having been written in the ballot, the statute required that it be counted as a ballot for him, unless
The court also declined to count ballot No. 4 for either candidate. It had a straight perpendicular mark, which might be called a letter I or a figure 1, in the square opposite the name of the contestant, and it had a round mark — a letter O or a cipher —in the square opposite the name of the contestee. The court held that it was impossible to decide for which of these gentlemen the vote was cast. It is provided in section 141, supra, that
“If an elector in marking his ballot shall usé a mark other than a cross-mark (X), as Y, or I, or —, or O, or other mark clearly*89 indicating an intent to mark against any name, it shall be deemed a sufficient vote for the candidate or candidates against whose name or names so marked; but not if the cross-mark (X)-be used’ elsewhere on the same ballot.”
By this provision it will be seen that a straight perpendicular mark (an I), as well as a round mark (an O), when used so as clearly to indicate an intention to mark against any name, is recognized by the statute as a legitimate and sufficient method of marking. Either of these marks is of the same value as an X. The voter in this particular case used marks recognized by the statute opposite each name, and the situation is precisely as if he had an X opposite each. We cannot determine what the intention of the voter was when he put a straight perpendicular mark (either the letter I or the figure 1) opposite the name of the contestant, and then put a round mark (an O or a cipher) ■ opposite that of the contestee. Which candidate he favored was thus rendered uncertain. This ballot was properly rejected, as not to be counted for either of the two.
We now come to the three ballots lettered B, C, and D, which were substantially alike, and were counted for the contestee in the court below. Each of these had an X opposite the name of Mr. Upson. Their validity is challenged by counsel for contestant on the ground that the cross marks were erased, in effect, before the ballots were cast. From an inspection of each, it is seen that, after marking an X, each voter added to it by drawing another mark or marks over the same. We are clearly of the opinion that the condition of these ballots would not justify us in assuming that any erasures were intended. Each cross mark is somewhat disfigured by additions and unnecessary lines drawn over an X already made. Possibly the voter took this way to make his intention plain and beyond doubt. Perhaps he really tried to remove an X after making it, but this is wholly problematical. The rule laid down in the Pennington case is in point here:
“The statute does not, however, prescribe any inflexible rule as to what shall or shall not be accepted as a cross mark, and any mark, however crude and imperfect in form, if it is apparent*90 that it was honestly intended as a cross mark, and for nothing else, must be given effect as such; otherwise, electors unaccustomed to the use of pen or pencil might be disfranchised.”
These ballots were properly counted below.
Our conclusion as to these ballots makes it unnecessary to consider the points made by counsel as to several which were not indorsed with the initials of all the judges, and as to others which bore the initials of one of the clerks, who in good faith acted as judge while one of the regular judges was absent at dinner; for the result would not be affected thereby. We hold that the contestee had a majority of two, precisely as was found by the court below.
The judgment appealed from is affirmed.