Lead Opinion
after making the foregoing statement of the facts, delivered the opinion of the court.
It is contended by plaintiff’s counsel that, by giving to the statute providing for the marking and counting of ballots cast at a general election the liberal construction to which it is entitled, an inspection of the twenty-five ballots which were rejected shows that the several electors who cast them intended thereby to vote for Van Winkle, and hence the court erred in refusing to count them for him.
A general statement of the provisions of the Australian Ballot Law, so far as applicable to the facts involved, is deemed essential to a clear understanding of the questions presented for consideration. An act of the legislative assembly approved February 13, 1891 (Laws, 1891, p. 8), appears in Hill’s Ann. Laws, at p. 1169 et seq., and provides that the white official ballot shall have printed thereon in bold-faced type the words, “Mark between the number and name of each candidate or answer voted for.” The ballots shall be printed so as to give each elector a clear opportunity to designate his choice of candidates by making a mark to the left of the name of the candidate he wishes to vote for : Section 49, as amended by the act approved February 23,1895 (Laws,
While there is a conflict of judicial utterance upon the question as to whether, in the absence of a statute rendering a ballot void which is not marked in the prescribed manner, we believe the better reason supports the rule that the provisions of the act, so far as they relate to the space in which the marking should be done, should be construed as mandatory: McCrary, Elec. (4 ed.), § 720; Attorney-General v. McQuade, 94 Mich. 439 (53 N. W. 944); Attorney-General v. May, 99 Mich. 538 (58 N. W. 483); Whittam v. Zahorik, 91 Iowa, 23 (57 Am. St. Rep. 317, 59 N. W. 57); Parvin v. Wimberg, 130 Ind. 561 (30 Am. St. Rep. 254, 15 L. R. A. 771, 30 N. E. 790); Bechtel v. Albin, 134 Ind. 193 (33 N. E. 967); Sego v. Stoddard, 136 Ired. 297 (22 L. R. A. 468, 36 N. E. 204); Curran v. Clayton, 86 Me. 42 (29 Atl. 930); People v. Board of Canvassers of Onondaga Co., 129 N. Y. 395 (14 L. R. A. 624, 29 N. E. 327). In Bechtel v. Albin, 134 Ind. 193 (33 N. E. 967), Mr. Justice Hackney, in construing a similar statute of Indiana, says: “That the legislature intended a strict observance of the rule so provided is further shown in the provision that if, in an attempted compliance, the voter, by accident or mistake, spoils, defaces, or mutilates his ballot, he can have another. ’ ’
These conclusions do not change the result reached by the trial court, in view of which the judgment is affirmed.
Affirmed.
Rehearing
On Motion for Rehearing.
delivered the opinion.
This cause was tried without the intervention of a jury. A recount was made of all the ballots cast for the office in question, and the court, having made findings of fact upon all the disputed ballots, decided that the defendant was elected by one vote, and entered judg
The other questions referred to in the petition for rehearing were all carefully considered, and are disposed of in the former opinion, and we do not deem it necessary to go over them again.
Rehearing Denied.