11 Mich. 362 | Mich. | 1863
The only question in this case is whether the seven ballots for city officers found in the state and county box, having the name of the respondent upon them, were properly counted for him by the inspectors.
The two elections, though held upon the same day, were in law distinct and independent of each other, as much as if they happened on different days: and it is, in fact, only in each alternate year that they can occur together. But, though thus distinct, and the ballots to be deposited in separate boxes, yet as both were held together under the supervision of the same inspectors, with both boxes before them for the reception of ballots, the inspector receiving the ballot might be liable, by honest mistake, occasionally to deposit a ballot in the wrong box: and, if he understood that the ballots found in the wrong box were in no case to be counted, he might do the same thing- for a fraudulent purpose. But the elector is not to be deprived of his vote either by the mistake or fraud of the inspector in depositing it in the wrong box, if the intention of the voter can be ascertained with reasonable certainty. To hold otherwise would be to give more effect to the letter than to the manifest purpose of the statute. And if, in consequence of an error thus caused, the intention of the voters could not be ascertained with the requisite certainty, the election would probably be held void as to all the officers whose election might be affected by the ballots thus misplaced.
There were found in the city box six hundred and thirteen ballots, and this agreed with the number voting at the city election, as shown by the poll lists. But, on examination, it was found that ten of these ballots were for state and county officers, leaving only six hundred and three for city officers. The case does not show the whole number of ballots found in the state and county box, but that, on counting them, it was found that the whole number was one less than the number of electors voting at the state and county election, as shown by the poll lists of that election, and that among them were found seven ballots for city officers, all having the name of the respondent upon them for the office in question. By adding these seven to the six hundred and three city ballots found in the city box, the whole number of city ballots found in both boxes was six hundred and ten, or three less than the number required to correspond with the poll list of the city election. Taking out the seven city ballots from the state and county box, the number of state and county ballots in the latter box would be eight less than that of the electors voting at the state and county election, as shown by the poll lists of that election. If we then add
It is plain that the clerks of the city election made no error in keeping the poll lists of persons whose ballots were deposited in that box. But it is equally clear that the clerks of the state and county election did make an error in keeping the lists of that election; as the whole number of ballots in that box was one less than shown by their lists. This might have arisen by the challenge 'and rejection of some vote after the name of the voter had been written down, and their neglect to erase it.
The error of putting the ballots in the wrong box might occur in several different ways: 1st, by the mistake of the voters; 2d, by the mistake of the inspector placing the ballots in the box; Sd, by the fraud of the voters, and, 4th, by the fraud of the inspector. If it occurred by mistake, it is wholly immaterial, whether it was that of the voters in getting the two ballots relating to different elections interchanged, or that of the inspector depositing the ballots in the box, so that the intention of the voters can be ascertained with reasonable certainty. If it be admitted that the error occurred by mistake, had the number of city ballots found in the state and county box corresponded with the number of state and county ballots found in the city box, no doubt could well have been entertained of the real intention of the voters, to vote both species of ballots, and that the ballots had been interchanged by them or the inspector before they got into the boxes. I think the intention of the voters who voted the seven city ballots in question is equally as clear as if there had been ten of them, so as to correspond with the number of state and county votes in the city box. But had these seven ballots, when added to the city ballots found in the city box, exceeded the number shown by the poll lists of the city election, the conclusion would
If these seven electors undertook to commit a fraud- of this kind, it could only have, been done with the belief on their part that their votes would be counted, though found in the wrong box; and they could have accomplished the fraud only by handing in two city ballots, representing to the inspector that one of them was a state and county ballot. But, had this been done, the error must have been exposed by the poll list of the city election, since the aggregate number of city ballots found in both boxes must exceed the number of city electors shown by the poll lists of that election. The hypothesis of fraud on the part of the voters is therefore inadmissible so far as it relates to the seven city ballots in question; though it might explain two of the state and county votes found in the city box and which were in excess of the number shown by the poll lists of the state and county election. If the error was caused by the fraud of the inspector, in placing the ballots in the wrong box, he must have acted upon the belief that the ballots thus misplaced would be rejected; and, if such were the rule, he might deprive the elector of his vote at both elections, by placing each of the ballots in the wrong box; and this he might do without the possibility of detection, unless observed in the act of performing the operation; as the error caused by this interchange of ballots would not be made apparent by the poll lists, and it would be impossible to determine whether it was the mistake of the voter or his own mistake or fraud.
It appears from the agreed facts that in the city ballot box there were ten ballots for county officers, and in the county box seven for city officers, and that the ballots in the latter box fell one short of the poll list. As the number of votes cast in the city box tallied exactly with the poll list, it is perfectly evident that three county votes were cast into the city box which had no equivalent in the other; and that these three votes must have been handed in to the inspector by the voters themselves as representing city ballots. Of course they can not be counted for either office. But the fact that such an occurrence has happened either by the design or mistake of three voters, and that it is impossible by any means to ascertain who they were, illustrates to my mind the necessity of adhering to the rule of counting only such ballots as are cast into the proper ballot box, without attempting to correct what can only be supposed to be an error, by means purely conjectural.
If a person should hand to the insjiector a legal ballot, and that officer, instead of placing it in the box, should secretly destroy it, the absence of that ticket from the box would in no wise affect the election. The law must presume — at least until shown otherwise by something tangible and definite — that the officers in charge of an election do their duty, without mistake as well as without fraud. It is quite probable that in the case before us there was an interchange among a portion of the tickets. But, as the numbers disagree, it is entirely uncertain whether the seven tickets wrongly found in one box were placed there by the same voters who put seven of the other ten erroneous ballots into the other box. Such may be the probability, but it is a probability of conjecture and not of proof. It is quite as likely, assuming the whole to be errors, that the voters made the mistake, as that
There is no proof before us (and probably could be no proof) which shows that any one of the possible ways of adjusting the difficulty is correct, to the exclusion of the rest. I think that the only safe course in any case is to count no ballots not found in the proper ballot box.
I think, therefore, that judgment of ouster sholud be entered against respondent, and that the relator should be adjudged lawfully elected.
Judgment for respondent.