State ex rel. Millican v. Phillips

Willie, Chief Justice. The petition seeks to oust Phillips from the office of assessor of taxes of Brazoria county, because a large number of illegal votes were cast for him, and if these votes are not counted it would show a majority in favor of the relator. These votes were objected to on one ground only, and that is because they are “ diamond shaped,” and it is alleged that this shape was given them as a “ device ” in violation of the election law of 1879. Facsimiles of these tickets were made part of the petition, and are brought up to this court with the record. ü pon an examination of these we find that they are printed on plain white paper, without any picture, sign, device or stamp mark, printed, engraved, stamped or otherwise placed upon them. In these respects they seem to fulfil every requirement of the law. There is nothing in its provisions as to the shape, size or dimensions of the tickets to be used at an election. But it is contended that by giving them the shape the present tickets bear, a device is formed to ascertain the contents of a ballot. By the word “ device,” as used in the statute, was doubtless meant a figure, mark or ornament of a similar character, with the pictures, signs, etc., enumerated in the same connection, and placed upon the ticket in a like manner. This is the natural and legal construction to be placed upon the word in the connection in which it is used, and we do not feel authorized to extend its meaning in restriction of the right of a voter to cast his ballot for the candidate of his choice. In fact the decisions tend rather to restrict the exceptions which exclude the ballot rather than to extend them; to admit the ballot if the spirit and intention of the law is not violated, although a literal construction would vitiate it. Druliner v. State, 29 Ind., 308; Stanley v. Manly, 35 Ind., 275; Kirk v. Rhoads, 46 Cal., 398. It is contended, however, that as these provisions are enacted for the purpose of preserving the secrecy of the ballot and the independence of the voter, this object will be defeated if such tickets as the one before us are allowed to be placed in the ballot-box and to be counted in determining the result of the election. If this were the case we should not feel justified in extending the provisions of the statute beyond the legal import of its terms. The will of the people as expressed at the ballot-box must be respected by all tribunals having supervision or jurisdiction over the subject-matter of elections. The result, as shown by the tickets deposited by the legal electors, must not be set aside except for causes plainly within the purview of the law. It was doubtless the conclusion of the legislature that, if tickets were allowed to be printed upon colored paper, [394] or if marks, pictures or stamps were placed upon them, it would be Avithin the power of persons other than the voter to ascertain the nature of his vote when offered to the managers, and, as a consequence, to exert an improper control over the voter, or punish him for the manner in which he had exercised the right of suffrage. If they had supposed that the same evil result would follow from allowing tickets to be made in different shapes, they doubtless avouIc! have prescribed the form of the paper on which they should be written or printed. It might happen that a political party, by hairing its tickets of a certain weight or thickness, could tell the name of every voter who had supported the nominees of the party. Still, if the paper was not colored, and had no distinguishing mark placed upon it, these particular votes could not be rejected. The law does not prescribe that the tickets shall be square or oblong or round, or in any other shape known to geometry, and those we are considering, being somewhat in the shape of a rhomboid, were not illegal. From an examination of these tickets it is evident also that the spirit and intention of the law is not violated by the use of them. They are easily folded in such a manner as to render it impossible for the closest observer to tell of what shape the paper on which they are printed is when spread out to its full size. We cannot see from an inspection of them that the secrecy of the ballot or the independence of the voter will be interfered with by allowing such tickets to be counted. There is absolutely no ground for setting aside the election stated in the' information, and the judgment of the court below dismissing it is affirmed. Affirmed. [Opinion delivered February 24, 1885.]