185 Ind. 105 | Ind. | 1916
— This is an appeal from a judgment of the trial court in an action to contest an election. Appellant and appellee were opposing candidates for the office of trustee of Liberty township, Tipton county, Indiana, at the election held November 3, 1914. The only error assigned is based on an action of the trial court in overruling appellant’s motion for a new trial. The causes assigned for a new trial question certain rulings of the court in admitting in evidence certain ballots purporting to express votes for appellee. On the trial it was admitted that 194 votes were cast and properly counted for appellee, and that 224 votes were cast and properly counted for appellant. The vote of each candidate as thus admitted was increased seven votes by ballots admitted in evidence without objection.
Over appellant’s objection the court admitted forty-six ballots, each purporting to express a vote for appellee; and over appellee’s objection fifteen ballots were admitted, each purporting to express a vote for appellant. The court thus found the total vote cast for appellant to be 246, and the total vote cast for appellee to be 247. The objection urged by. appellant against the forty-six ballots admitted and counted in favor of appellee is that each of such ballots bears some distinguishing mark ■which renders it invalid.
The original Australian ballot law was passed in this State on March 6, 1889, Acts 1889 p. 157, 178. Under the provisions of §45 of this act, the voter was required to use a stamp furnished for that purpose in marking his ballot. In indicating his choice of candidates the elector could vote a “straight ticket” by placing the stamp on the square to the left of the name of the political party whose candidates he desired to support.
Several sections of the original act were amended in 1891. Acts 1891 pp. 124-185, §6199 et seq. Burns 1894. Section 26, supra, was so amended as to provide for a party emblem in a square at the head of the list of candidates of each political party filing nominations. Section 45, supra,, was amended so as to change the manner of stamping ballots to indicate the choice of candidates. An elector desiring to vote for all of the candidates under a party emblem might do so by placing a stamp mark inside of the square containing the emblem. If the voter placed a stamp mark in a square enclosing the party device, he was not permitted to place any other stamp on the ballot, unless there was no candidate in the list under such device for one or more of the offices to be filled, in which event he might indicate his choice for such office by stamping the square to the left of any candidate for such office appearing on any other list. The elector was also permitted to indicate his choice of candidates by stamping the square at the left of the name of each candidate so selected. All of the candidates to be voted for in this manner might be selected from one list, or from any or all of the lists of candidates printed
At the session of 1897 the legislature passed an act slightly modifying the statute of 1891, as to -the printing of ballots and the mode of indicating a choice of candidates by the voter. Acts 1897 p.49, §6908 Burns 1914. Section 1, supra, of this act provides that the party emblem should be enclosed in a circle instead of a square, and by §3, supra, §6927 Burns 1914, the voter was required to indicate his choice of candidates by the use of a blue pencil furnished for that purpose instead of using the stamp as provided by previous laws on the subject. To indicate his choice he was required to make a cross,(thus,- X, with the blue pencil, but no change was made in the act of 1891 as to the placing of the marks to indicate a choice of candidates. The mark by the blue pencil was substituted for the mark to be made by the stamp and no other substantial change was made in regard to marking ballots. This section provides that a mark on the ballot in violation of this provision shall be treated as a distinguishing mark.
Thirty-seven of the ballots counted for appellee were marked with a cross on a square at the. left of a space where there was no candidate’s name. Appellant relying upon the case of Sego v. Stoddard (1894), 136 Ind. 297, 36 N. E. 204, 22 L. R. A. 468, contends that these ballots so marked bore distinguishing marks under the express terms of the statute. It was held in the case relied on that, where no name of a candidate appears under the
Great variations and conflicts in the decisions have arisen in the application to specific eases of election laws on the subject of marking ballots. While the conflict existing among the opinions can be partly accounted for by the different_statutory provisions which exist in different states, they can not be all so explained. The subject under consideration is discussed and the conflict among the decisions shown in a recent work with citation
■ The trial court was evidently of the opinion that these nine ballots in question bore no marks upon their faces of such a character as to be in violation of the law, and that they were marked by the voters who prepared them in substantial compliance with the provisions of the statute on that subject. Under this view these exhibits were correctly admitted in evidence, and this court is of the opinion that the trial court did not err in the ■ view so taken.
There was no error in overruling appellant’s motion for a new trial. Judgment affirmed.
Note. — Reported in 113 N. E. 229. Construction of laws relative to the marking of official ballots, note 47 L. R. A. 806. . Distinguishing marks that invalidate ballots, 47 L. R. A. 812, 20 Ann. Cas. 672. Irregularities in marking ballots, 15 Cyc 357.