16 Mich. 283 | Mich. | 1868
Lead Opinion
The jury sworn to try this cause have found a verdict that defendant received the greatest number of votes for the office of sheriff of Wayne County. A motion is now made for a new trial, based on legal rulings complained of, and on the ground that the verdict was against evidence.
The chief controversy upon the trial, as well as on this motion, has arisen out of the alleged reception on either side of votes from unqualified persons. These voters are alleged to have been disqualified respectively by non-age, non-residence, or mental incapacity. Other controversies also arise which will be referred to in their place.
The first inquiry, therefore, is, whether an election can be defeated as to any candidate by showing him to have received illegal votes.
The authorities upon election questions are in this country neither numerous nor satisfactory. In England, where votes are given viva voce, it is always easy to determine how any voter has given his voice. And in some states of the ITnion, a system seems to prevail of numbering each ballot as given, and also numbering the'voter’s name on' the poll
The question of the power of courts to inquire into the action of the authorities in receiving or rejecting votes is, therefore, very closely connected with the power of inquiring what persons were voted for by those whose qualifications are denied. It is argued for the relator that neither of these inquiries can be made.
No use can fairly be made in such a controversy as the present, of decisions or practice arising out of any system of open voting. The ballot system was designed to prevent such publicity, and not to encourage it. And the course adopted by legislative bodies can not be regarded as a safe guide for courts of justice. There is little uniformity in it, and much of it is based on English precedents, belonging to a different practice. The view taken of contested elections by these popular bodies, is not always accurate or consistent with any settled principles.
There is no case, .so far as I have been able to discover, under any system of voting by closed ballot, which has held that any account could be taken of rejected votes, in a suit to try title for office. The statutes here, and probably elsewhere, require the election to be made out by the votes given. But it is plain enough that in most cases it would be quite as easy to determine for whom a rejected voter would have voted, as for whom any other actually did vote. In many cases it would be easier, because the vote is always ready and tendered, with better opportunities of observation than are given where it is received and deposited. But the element of uncertainty has been regarded as sufficient to cause the rejection of any
So far as I have been able to discover, by means of the somewhat imperfect indexes on this head, there is but one case in which the decision has turned upon the propriety of allowing inquiry into the qualifications of voters, and the identification of their tickets when claimed to be disqualified. That case was the case of People v. Pease, 27 N. Y. 45. In the Supreme Court the judges, although arriving at a general result, were equally divided on this point. In the Court of Appeals the judges elected to that tribunal were also equally divided, and a majority of the Supreme Court judges belonging to it by rotation turned the scale, and decided that the inquiry was proper. The decision was based chiefly upon English authorities, the previous New York decisions having turned principally on other errors, which rest upon somewhat different grounds.
New York, so far as may be inferred from the absence of decisions elsewhere, seems until recently to have been the only state, preserving the ballot system, in which the right to office by election is open to examination on the merits to any considerable extent. The courts of that state have gone further than any others in opening the door to parol proof. Some of the western states have, upon the authority of the New York ca'ses, permitted some of these matters to be litigated, but they are not in any majority. And it is quite manifest that the decisions have not in general acted upon any careful consideration of the important questions of public policy underlying the ballot system, which are so forcibly explained by Denio, O. J. in his opinion in People v. Pease. And it is a little remarkable that in New York, while so many doors have been opened by the decisions, the law requires all the ballots, except a single specimen of each kind, to be destroyed; thus leaving
The reasons why such an inquiry should be prevented do not necessarily rest on any assumption that the inspectors act throughout judicially, although under our registration system that objection has a force which would not otherwise be so obvious. Neither do they rest in any degree upon the assumption that one rule or another is most likely to induce perjury — as very hastily intimated in People v. Ferguson, 8 Cow. 102. But a very strong ground for them is found in the fact that our whole ballot system is based upon the idea that unless inviolable secrecy is preserved concerning every voter’s action, there can be no safety against those personal or political influences which destroy individual freedom of choice.
It is altogether idle to expect that there can be any such protection where the voter is only allowed to withhold his own oath concerning the ticket he has voted, while any other prying meddler can be permitted in a court of justice to guess under oath at its contents. If the law could permit an inquiry at all, there is no reason whatever for preventing, an inquiry from the voter himself, who alone can actually know how he voted, and who can suffer no more by being compelled to answer, than by having the fact established otherwise. The reason why the ballot is made obligatory by our constitution is to secure every one the right of preventing any one else from knowing how he voted; and there is no propriety in any rule which renders such a safeguard valueless.
It has always been the case that the rules of evidence have, on grounds of public policy, excluded proof tending to explain how individuals have acted, in positions where
The statutes contain some provisions bearing upon these topics with considerable force. By section 47 of the Oomp. L. every voter is compelled to deliver his ballot folded, and by section 52 the inspector is prohibited from either opening or permitting it to be opened. .
The devices adopted for creating different appearances in the ballots of different parties are. such palpable evasions of the spirit of the law, as to go very far towards destroying the immunity of the voter, and in some states it has been found desirable to attempt, by statute, the prevention of such tricks; but the difficulty of doing this effectually is exemplified in People v. Kilduff, 15 Ill. 492, where the evidence seems to have shown that a uniform variation may be entirely accidental. Unless some such difference exists, it would be idle to attempt any proof how a person voted; and it would be better to do away at once with the whole ballot, than to have legal tribunals give any aid or countenance to indirect violations of its security. And the evidence received in the present case exemplifies the impropriety of such investigations. In some instances, at least, the only proof that a voter, complained of as illegal, cast his ballot for one or the other of these candidates, was that he voted a ticket externally appearing to belong to one of two political parties, and containing
But there are further provisions bearing more directly on the propriety and necessity of allowing no inquisition into individual votes.
County officers are among those included under section 31 of the compiled laws, which declares that “the persons having the greatest number of votes shall be deemed to have been duly elected.” The law does not confine this to votes cast by authorized voters, and can only be applied to votes cast and recorded in the manner provided by law. And although this section, standing alone, might be open to construction, yet, when the whole law is taken together, there are provisions not to be reconciled with any rule allowing single voters and their votes to be made the subjects of inquiry. It will not be denied that any inquiry into the legality of a particular voter’s qualifications, after his vote has been cast, is of a strictly judicial nature. And it can not be proper or legal to allow such an inquiry in one case and not in another. But it will be found not only that the rejection of votes from the count is required to be in such a way as to preclude any consideration of the person giving .or putting them in, but that there are cases where even a legal inqrdry into the ballots themselves is prevented.
It is, therefore, altogether likely, upon any theory of probabilities, that in drawing out these extra ballots they will really be ballots lawfully put in, and this probability is in the ratio furnished by a comparison of numbers between lawful and unlawful votes. In other words, it is more than likely to punish the innocent instead of the guilty. The true method of arriving at the truth would be to inquire what vote each voter on the list actually cast, and destroy the remainder. The absurdity of this process upon such a large scale is such as to need no pointing out. But unless something-very like it is done in such a case as the present, the result obtained by any partial inquiry will be no better than guesswork. Where votes are thrown out, no one can tell whether the illegal voter whose vote is sought to be assailed has not already had his vote cancelled. The adoption of the principle of allotment is the most sensible and practical measure which could be devised, and I can not conceive how it can be improved upon by any subsequent search.
But when the inspectors have made their returns to the the county canvassers, and by those returns, a tie vote appears between two or more candidates who are highest on the list, their right to the office is to be determined by lot, and the person drawing the successful slip is to be “deemed
The statute also takes very efficient measures to prevent any needless litigation, by shutting out any preliminary resort to the means of information. If the officers do their duty, no one else can ever know whether their count is correct or not, until a suit is brought and issue joined upon it. The ballots are required to be sealed up, and not opened except for the inspection of the proper authorities in case of a contest. — § 65. The only ballots open to public inspection are those which are rejected upon the canvass for defects apparent on their face.— § 65. These ballots are not sealed up with the rest, but are filed. While, therefore, it can be determined by inspection whether votes which have been thrown out should have been counted, the law does not seem to favor any unnecessary disturbance of the official returns, and any one who assumes to dispute an election is compelled to begin his suit before he can have access to the means of proof. This is not the usual course of litigation, and the rule has a strong bearing upon the policy to be deduced from the law.
No system can be devised which will prevent all illegal voting. But it can not be said our legislation is not as likely to shut it out as any means open to judicial control would be. The registration law forbids the board from recording any name of which they have well-founded doubts, and it is practically impossible for any stranger to succeed in defrauding the law, with the publicity given to all the proceedings. "Where a person - applies for registration on election day, the inspectors act upon discretion, and are not compelled to admit a vote unless satisfied of its legality. The challengers on both sides, as we all know, canvass every district beforehand, and expect to challenge every one who is not known. While the inspectors can not reject a
I am, therefore, of opinion that the election must be determined solely by the ballots received according to law; and that where the election proceedings are not irregular, and the law has been complied with in correcting the lists and preserving the ballots, the means of determining the result must be in the main arithmetical. The present case, however, presents some points arising out of an excess of ballots in some precincts, an alleged failure in one town to preserve the box in security, and questions concerning the propriety of counting some slips and imperfect tickets.
The most important inquiry among these is what effect the excess of votes over the names of voters appearing on the poll lists has upon the election in the township, or ward, or in the county. v
This can only be determined by ascertaining what the statute has provided concerning the conclusiveness of these lists.
Under the registration law, the inspectors of election are required to keep before them the registered list of voters, and not to receive the vote of any person not registered.— Laws, 1859, p. 488. This renders necessary some system of checking, to prevent double voting; and while the law does not prescribe it, the evidence shows it was resorted to in this case, and seems to be a practical necessity. Two clerks of election are also to be appointed, whose duty it is to keep separate and independent lists, in order that in case of doubt one may furnish the means of correcting the other. At each adjournment, as well as at the final closing of the polls, these lists are to be compared, and any
Before the election commences, the ballot-box is to be thoroughly examined, to be sure that nothing remains in it, and precautions are provided against any subsequent unauthorized opening' — ■ § § 51, 55, 56.
When the poll lists are made to correspond, the ballots are to be counted without opening, “ except so far as may be necessary to ascertain whether each ballot is single: and if two or more ballots shall be found so folded together as to present the appearance of a single ballot, they shall be destroyed, when the number of ballots shall be found not to agree with the poll lists, as provided in the next section.” This directs that, “if the ballots in the box shall be found to exceed in number the whole number of names of electors on the poll lists, they shall be replaced in the box, and one of the inspectors shall publicly draw out and destroy so many ballots therefrom, unopened, as shall be equal to such excess.” — § § 61, 62.
“The ballots and poll lists agreeing, or being made to agree, the board shall then proceed to canvass and estimate the votes, and they shall draw up a statement of the result, and cause a duplicate thereof to be made, which statement and duplicate shall be certified by the' inspectors to be correct, and shall be subscribed with their names.” —§ 63.
The statute contemplates that every ballot found in the box in excess of the number of names on the poll-lists, got there by fraud or accident, and does not represent a voter. The duty of the inspectors is peremptory, and unless they perform it, the consequence must be that the number of votes which belong to each candidate out of the only ballots which the statute regards as actually delivered in, must remain in uncertainty. And, inasmuch as no one can be considered elected who cannot be shown to have received a
There is no room in such a case for the application of probabilities, for there is nothing whatever on which to base them. In State of Ohio v. Ritt, Am. L. R. Dec. 1867, p. 88, and in the Penn Dist. Elect. 2 Pars. (Pa.) R. 533, an unauthorized closing of the polls was held to avoid an election; and in the Locust Ward case — 4 Pa. L. J. 341 — it was held that if polls were kept open too long, and the votes cast during the excessive period were enough to have possibly
If in the present case any such' uncertainty exists, the election must be deemed to-have miscarried, and must have the same result as if there had been no election. As the case was presented on the trial, this consequence would follow. In the Sixth Ward, it appears by the count that nine votes were found in excess of the poll lists. In the Seventh Ward there were seven. Thus, as now appearing, there are sixteen votes which cannot be counted; and this number would, as the case now stands, turn the election. But, as upon a new trial, it is impossible for us to determine how the facts may appear, it will become necessary to consider some further questions which will "then be presented.
In the town of Dearborn, the comparison of ballots upon the trial showed a different result from the original return of the inspectors. Instead of sealing up the ballots, as required by law’ (§ 65 ), they were thrown back, open, into the box, which was also left unguarded except by an ordinary lock. The Court charged the jury that inasmuch as the ballots had not been preserved in the manner required by law, there was not the same certainty of their correctness which the law would have otherwise presumed, and it was, therefore, left to them, as a matter of fact, whether they would rely on the count or on the inspectors’ return as most reliable. This course was the proper one under the circumstances. The original count by the inspectors is open and public, and made in the performance of a sworn duty. It furnishes presumptive evidence, until rebutted by a new count upon a legal investigation. The sealing and securing of the ballots is deemed essential by the statute to prevent fraud; and while we held, in People v. Sackett, 14 Mich. 320, that such a neglect would not avoid an election, yet it throws enough suspicion upon it to render it subject to a close scrutiny, and the jury must, therefore, determine the matter. In regard to the slips concerning which a controversy
But a more important inquiry arises concerning the allowance of testimony to show that votes cast for E. V. Cicott, E. B. Cicott, and G. O. Williams, were designed for Edward Y. Cicott, and Gurdon O. Williams. It was held by this Court in People v. Tisdale, 1 Doug. R. 59, that votes cast for persons by their initials could not be counted as if giving the full name. In People v. Higgins, 3 Mich. 233, a similar ruling was made. Between those decisions the election laws were twice revised, and no change was made on this subject. The law has been acquiesced in. In New York the acquiescence of the Legislature in the opposite rule was considerably relied on in People v. Cook, 8 N. Y. 67. This would seem to render it improper to disturb the rule unless upon the most urgent grounds, and unless
In popular business transactions, the use of initials, or even of a surname alone, may suffice, because evidence is easily found to prove identity by various means. And had the election law not designed to make the ballot the final test of the elector’s will, such looseness would not be so material. But in solemn legal proceedings in courts of justice, it has always been customary to use the full name, and the reasons for requiring it in elections are quite as forcible. The elector’s own oath, which is the best means of explanation, can not be required, nor, in my judgment, permitted. The doctrine allowing names to be made out from initials has, in New York, been supplemented by allowing the
The election laws contain so many evidences of a design to require great accuracy in all proceedings, that it would not, I think, carry out public policy to recede from the rules formerly held by this court, until the Legislature see fit to open the door. Thus far there has been great solicitude to prevent uncertainties and frauds. "Until the inspectors or canvassers are permitted to inquire into identity, I can see no propriety in permitting such inquiries by courts. An investigation into the systems of the various states, shows a general disinclination to allow offices to be -subject at all to judicial inquiry. It certainly is not desirable to furnish any more room for parol evidence than is absolutely unavoidable.
I think the ballots with initials can not be allowed.
Concurrence Opinion
I concur entirely with my brother Campbell in the views he has expressed as to the slips which were in controversy in this cause, and the mode in which the intention of the voter must be thereby expressed. I concur also in holding
With reference to those ballots in which the Christian names of the respective candidates were expressed only by initials, I concur in adhering to the rule established in People v. Tisdale, 1 Doug. 59, yet I am compelled to say that but for that decision, I should have been disposed to hold that, upon principle, extrinsic evidence might be given tending to show for whom the vote was intended; as that the candidates were in the habit of thus writing their names; that they were as well known, respectively, by the name of E. V. Cicott and Gr. 0. Williams,, as by Edward V. and Gurdon 0.; that they were opposing candidates at the election for the same office, and that no other person of the same surname and the same initials was known to be running for the office. This is in strict accordance with the rule which prevails in the construction of all other written instruments, which are to be read in the light of the surrounding circumstances. But the rule in People v. Tisdale, was recognized in People v. Higgins, 3 Mich. 233, and has now been the settled law of this State for a quarter of a century. This rule has the merit of simplicity and certainty, of being easily understood and applied, leaving no room for discretion in the inspectors ; and, as a general rule, is equally fair and just in its application to all parties. I do not therefore think it wise to disturb it by establishing another rule which to me may seem more sound in principle, but which in its practical application, might not be likely to produce any fairer results. The Legislature have full control over this question, and may change the rule when the public sentiment shall seem to require it.
I concur also in holding that it is utterly useless to inquire into the qualification of voters, when the nature of their votes, or the candidates for whom they have voted
The person having the greatest number of the votes of legally qualified electors, it seems to me, has a constitutional
The extent of the inquiry into the qualification of voters, and how they have voted, may be limited or qualified by other provisions of the constitution; and I think it has been thus practically limited or modified by that provision of the constitution which requires all votes to be given by ballot. The object of this requirement, when considered with reference to the history of our country and the whole theory of popular governments, where suffrage is practically universal, is too plain to be misunderstood. It was to secure the entire independence of the electors, to enable them to vote according to their OAvn individual convictions of, right and duty, without the fear of giving offense or exciting the hostility of others. And with this view the right is secured to eveiy voter of concealing from all others, or from such of them as he may choose, the nature of his vote, or for what person or party he may have voted. This important object, vital as I think it is in our system of government, would be substantially defeated if the voter could be compelled to disclose, even in a court of justice, how he has voted. The constitution, and our statutes which have followed out its spirit, have thrown over the voter an impenetrable shield, under which he may keep the secret of his vote until he shall see fit to disclose it. The statute has taken pains to guard this secret from the prying curiosity of others, at the polls, when from the necessity of the case the outside of the ballot must be seen. The ticket is required to be handed to the inspector folded, and the inspector is required to deposit it in the box, without opening or
How an elector may have voted is, under the constitution and the law, a fact which no man has a right to learn, in this or any other manner, till the elector himself may choose to make it public. No man can acquire the right to disclose it without his consent; and least of all, can any knowledge surreptitiously obtained, be given in evidence, as by looking over the voter’s shoulder when he is preparing his ticket, or showing it to a friend; or by an inspector in violation of the statute receiving a ticket unfolded and reading its contents, as in the case-of Oabot.
It must also be borne in mind that by the very spirit of the system of voting by secret ballot, the legal right of deceiving others as to the vote, is implied; and, therefore, as well as because it would be mere hearsay, his mere confession or admission to another person must be incompetent evidence.
But careful as the law has been to guard the secret of the elector’s vote till he sees fit to disclose it, that secresy is, it seems to me, in its nature and purpose, a personal privilege only; and may be waived by the elector at his option. He may, if he see fit, testify in court to the vote which he has given. And though the statute requires the voter to hand in his ballot folded, I am not entirely satisfied
It is true that it can seldom be a question of any importance, in a case like the present, how a person possessing the constitutional qualifications of an elector has voted; since generally the vote of such person is legal, and must be counted at all events. Still there may be cases in which a person possessing the constitutional qualifications can not legally vote; as when he has neglected to register according to the statute.
The question of privilege becomes much more important when applied to the case of a voter whose qualifications are denied. It is clear that this privilege of secresy is given only to those who are recognized by the constitution as electors. And whenever the person who has voted admits that he was not constitutionally qualified, or the fact clearly appears, so that it no longer remains as a question for the jury, he can claim no protection from this privilege. But when his qualification is a disputed question of fact, which is to be determined by the jury in rendering their verdict, he can not be compelled to disclose his vote.
As to the excess of nine ballots in the Sixth, and seven in the Seventh Ward, beyond the number of votes shown by the poll lists, we are all agreed that, for this excess, the whole vote of these wards is not to be rejected. The electors should not be disfranchised for this error of the inspectors or clerks.
But I can not concur with my brother Campbell that because this excess is greater than the majority for either candidate for sheriff, the whole excess must, in effect, be
It was tbe duty of the inspectors under tbe statute— Qomp. L, §§ 61 and 62 — to have discovered this excess before canvassing the votes or opening tbe ballots; and they were required to draw out from tbe box a number of ballots unopened equal to tbe excess. This provision of tbe statute evidently proceeds upon tbe doctrine of tbe calculation of chances — tbe probability that tbe ballots drawn out will be apportioned among tbe respective parties and candidates substantially according to their respective numbers of votes.
This duty having been neglected by the inspectors, it devolves, I think, upon the court in a trial of the right to an office under this section, to apply to this excess of votes substantially tbe same rule as that prescribed for the inspectors; in other words, a rule which will distribute this excess among the opposing candidates with tbe same degree of certainty, and in tbe like proportion which the rule prescribed by the statute was calculated to produce.
Thus apportioned, taking the two wards, seven and a small fraction would fall to the share of Williams, six and a larger fraction to Cicott, and one and a large fraction to Allison. But, as no fraction of a vote can be counted, eight of this excess must be deducted from the vote of Williams, and seven from that of Cicott.
It remains only to apply these principles to the facts of this case.
Taking tbe inspectors’ returns, as corrected by tbe recount, without reference to any of the specially disputed ballots, and without reference to the qualifications of any voter, and tbe total vote for relator is 6,530; respondent’s, 6,515'; relator’s majority, 15. In, this calculation one vote is taken from respondent for a double ballot in Grosse Point, erroneously counted as one, when both should have been rejected; and one is added to his vote in Sumpter,
Supposing the jury to have found (as it was competent for them to find) in favor of the inspectors’ certificate, instead of the recount in Dearborn, this would take from the relator eight votes, leaving his majority but six. From this deduct the following votes, shown by the testimony of the voters themselves, to have been given for the relator, and who may have been found by the jury to have been disqualified, viz: Chase, who only says he voted “ Republican ticket,” but who, from the circumstances and the course of examination, would probably have made the exception as to sheriff, if he had voted for the candidate of the opposite party; Burtis, who says directly that he voted for Williams, and Edwards, who only says he voted “Republican ticket,” but admits that if he had voted against Williams he would have been likely to remember it. These three votes deducted from relator’s majority of six, reduce it to three. • These are all the voters claimed to have been unqualified and to have voted for Williams, who are shown by any legal evidence to have voted for him. On the other hand, it appears clearly from the evidence, and is not controverted, that Brennan, who swears he voted for Cicott, was not a voter, not having been a resident of the state for the three months next preceding the election. There was no evidence before the jury from which they could have found him a voter. This was so clear that the respondent’s counsel did not contest the point. This, therefore, reduces respondent’s vote by one, making relator’s majority four.
Allowing, therefore, that the jury upon every contested point in the case, resolved every doubt arising upon all the competent evidence in the case in favor of the respondent and against the relator, the latter was elected by four
The verdict should, therefore, be set aside and a re-trial ordered. But as the case has already been once tried in the Wayne Circuit, and its facts may have become matters of public notoriety there; and since the case was sent there for trial one of the counsel in the case has become the judge of that circuit, and no other judge is required by law to hold a court there for the trial of this case, and it is desirable that an early trial should be had, we have concluded to send the issues to the Circuit Court for the county of Washtenaw'for trial.
I agree fully with all that is said by my brothers Campbell and Christiancy as to the inadmissibility of evidence to show the nature of an elector’s ballot, in any case where it is not first shown that he waived his constitutional privilege of secrecy. And I concur generally in the conclusions of my brother Christiancy upon other points, except as I shall otherwise indicate.
I regret that my brethren are disposed to still follow the case of People v. Tisdale, 1 Doug. Mich. 59, notwithstanding the majority are of opinion that it is unsound in principle. The case has no support, as I think, either in the authorities or in the analogies of the law; and no court outside the state has ever followed it. It is true, as my brethren have remarked, that it lays down a rule easy of application, and one that is no more unfair to one candidate than to another; but it does not seem to me to be sufficient reason for retaining an unsound rule that it is impartial in its infliction of injustice. In every case where it becomes important to apply the rule at all, it has the effect to defeat the clearly expressed will of the electors;
The chief argument in favor of the rule of People v. Tisdale is, that ballots cast for parties by their initials only are so uncertain that they cannot be applied without resort to extrinsic and doubtful evidence, to ascertain the voter’s intention, and therefore should be rejected. But nothing can be more fallacious. It frequently happens that a man is better known by the initials of his baptismal name, than by the name fully expressed; simply because he is not in the habit of writing his name in full, or of being thus addressed in business transactions. I think it highly probable that that is the case with each of the parties before us. In political conventions, or legislative bodies, no one deems it important to write the full name of a candidate for whom he is voting, and no one ever thinks of challenging the vote for uncertainty. ITnder the application of this rule to the
The fallacy of the rule consists in its assuming that a certain form of ballot clearly expresses the voter’s intention, while another form is so uncertain that it is dangerous to attempt to arrive at the meaning by evidence. But in fact no ballot can identify with positive certainty the persons for whom it is cast; and notice must be taken of extrinsic circumstances in order to apply it. It is always possible that other persons may reside in the election district having the same names with some of the candidates; but neither the canvassers nor the courts ever assume that there is any difficulty in these cases, but they count the votes for the persons who have been put forward for the respective offices. And in some cases where an element of uncertainty is introduced into the ballot unnecessarily, as by the addition of an erroneous designation, the courts resolve the difficulty by rejecting the erroneous addition, and counting the ballot for the person for whom it was evidently designed.
If the rule were one which the canvassers could apply in every case, and which left nothing open for controversy in the courts afterwards, it would be less open to objection; but it is not of that character. No one doubts that if votes had been cast in this case for Edward Cicott, or Edward B. Cicott, or Edward Cicott, junior, or Edward Oicott with any other mistaken addition, they must have been counted for the respondent on the facts appearing in this case. — People v. Cook, 14 Barb. 259, and 8 N. Y. 67; Milk v. Christie, 1 Hill, 102; Bratton v. Seymour, 4 Watts, 329. Such ballots would be allowed because the error of
The true rule upon this subject I conceive to be this: Evidence of such facts as may be called the circumstances surrounding the election — such as, who were the candidates brought forward by the nominating conventions; whether other persons of the same name resided in the district from which the office was to be filled, and if so, whether they were eligible to the office and were publicly named for it, and the like — is always admissible for the purpose of aiding in the application of any ballot which has been cast: and where the intent of the voter as expressed by his ballot, when considered in the light of such surrounding circumstances, is not doubtful, the ballot should be counted and allowed for the person intended. This rule is just and easy of application; and it has the merit of harmonizing with the rules applied to other written instruments, which I think is no slight recommendation. It is always objectionable and mischievous to lay down different rules for classes of cases which all come within the same reasons.
On the question whether it is competent in this proceeding to inquire into the qualifications of those who voted, I
The only remaining question which I deem it important to refer to, is as to the effect of the failure of the canvassers in two of the wards of Detroit to draw from the ballot box the surplus of votes over the number which should have been found there as shown by the poll-lists. The county canvassers rejected the returns from those wards because of this irregularity. This they had clearly no authority to do. Their duties in canvassing are ministerial, and they are to receive the returns transmitted to them, if in due form and from the proper source, as correct, and to ascertain and declare the result as shown by such returns, without attempting to inquire into and settle any question which may lie back of those returns and affect the result. Ex parte Heath, 3 Hill, 42; Brower v. O’Brien, 2 Ind. 423; People v. Hilliard, 29 Ill. 413; People v. Jones, 19 Ind. 357; Bacon v. York County Commissioners, 13 Shep. 491; Mayo v. Freeland, 10 Mo. 629 ; Thompson v. Circuit Judge, 9 Ala. 338; People v. Kilduff, 15 Ill. 492; O’Farrell v. Colby, 2 Minn. 180; People v. Van Cleve, 1 Mich. 362; People v. Van Slyck, 4 Cow. 297; Dishon v. Smith, 10 Iowa, 212; Attorney General v. Ely, 4 Wis. 420; State v. Governor, 1 Dutcher, 331; People v. Cook, 8 N. Y. 67. The cases on this point are too numerous and uniform to be further cited.
Such canvass and declaration, however, would not be conclusive upon any party who might be injuriously affected by any antecedent irregularity. The question here is whether any one is injuriously affected; and this involves a consideration of the purpose of this drawing as well as of the probable result had the statute been complied with.
I do not suppose that the statute, in providing for this drawing, proceeds upon the idea that because a surplus of ballots appears there is necessarily fraud. The keeping of poll
What is that disposition? Here it appears there are a number of ballots in the box which the statute presumes ought not to be counted. Tet there is no mark upon them, and no possible way of distinguishing them from the ballots duly cast. It is quite impossible, therefore, to separate the good from the bad. Shall the election be declared void for that reason? This would be simply to disfranchise the electors because in some unexplainable manner a fraud, accident, or mistake has occurred for which they are in no way responsible, and which may not at all affect the result. The statute says they shall not be thus unjustly disfranchised, but that the votes shall be disposed of by'a rule which will operate as equally and justly between the parties as is possible under the circumstances. That rule is based upon the doctrine of probabilities. It directs the drawing from the box of a number equal to the surplus found there, and the equalization of the count of the box and the lists in that mode.
Now the relative proportion of votes cast for the two candidates in the two wards in question was such that, had the drawing taken place, Mr. Williams would probably have lost by it one more vote than Mr. Oicott, and no more. The probability is, therefore, that the election, as between these two candidates, has not been affected by the irregular action of the inspectors, beyond a single vote. Can it be held void for this irregularity if the actual difference in favor of Williams is more than a single vote?
Upon this point I refer to the following decisions where, in a great variety of cases, it has been held that statutory provisions prescribing the conduct of elections are to be regarded as directory only, except where they are of such a character that a failure to comply with them would have the effect to prevent or obstruct the complete expression of the popular will, or the production of satisfactory evidence thereof.— People v. Cook, 14 Barb. 259 and 8 N. Y. 67; People
And even where the statutory provisions are mandatory, they do not necessarily defeat an election actually held, if the means exist of determining the result. A particular act or proceeding may be rendered void, and the election be upheld notwithstanding.
The principle in all these cases is, that an election is not to be set aside because of air irregularity, unless it appears that that irregularity affected the result. In well reasoned cases where the election was disputed on the allegation that the polls were kept open for the reception of votes after the hour when the statute directed them, to be closed, it has been declared that, on general principles, no election could be made void on such grounds, unless it appeared that the votes received after the legal hour of closing changed the result. — Pratt v. People, 29 Ill. 72; People v. Cooke, 14 Barb. 296; Same case, 8 N. Y. 91. And in Lanier v. Gallatas, 13 La. An. 176, where it was charged that fourteen illegal votes were received, and that “if the said illegal votes had been rejected, it would in all probability have changed the result in favor of the petitioner,” the court hold the averment insufficient, and say that “to contest an election there should be an averment that the illegalities charged did alter the result; not that it was probable that the result might have been changed.”
If these authorities are sound — as they unquestionably are — we can not be warranted in declaring an election void
Suppose it be conceded that these sixteen votes are illegally in the boxes, and that they can not be distinguished and separated, the case then is no different from what it would be had these votes been cast by sixteen unqualified voters who refused to disclose for whom they voted. In such a case are the votes to be counted, first against one candidate, and then against the other, in order, if possible, to defeat both? If so, then an important election will seldom occur in close districts where, as to some officer there will not be a failure to elect. Sqch a rule could be based upon no reasons of justice or public policy which suggest themselves to my mind, and I do not discover anything in in the authorities to warrant it. I refer, in addition to the other cases cited, to First Parish in Sudbury v. Stearns, 21 Pick. 148, and Blandford School District v. Gibbs, 2 Cush. 39, as bearing upon this question. Ex-parte Murphy, 7 Cow. 153, covers the whole ground of the present case on this point. The majority in that case was only two, and it affirmatively appeared that two votes had been put into the box by unknown persons in the names of electors who were dead. It was not known for whom they were cast. On motion for leave to file an information, the court say: “ The motion must be .denied. For aught that appears, the spurious ballots were for the ticket which was in the minority. To- warrant setting aside the election, it must appear affirmatively that the successful ticket received a number of improper votes, which, if rejected, would have brought it down to a minority. The mere circumstance that improper votes were received, will not vitiate an election. If this rule were otherwise, hardly an election in the state could be sustained.”
