Curran v. Clayton

Whitehouse, J. At the municipal election held in the City of Bangor, on the second Monday of March, 1893, the parties to this proceeding were opposing candidates for the position of Alderman, from Ward Seven. The plaintiff was declared by the warden to have 310 of 617 ballots cast for Alderman, received from the ward clerk a certificate of his election as Alderman, took the qualifying oath and entered upon the discharge of the duties of the office. Subsequently, however, the Board of Aldermen re-examined the ballots cast for Alderman in Ward Seven, counted for the defendant six ballots which had been rejected by the warden as defectively and illegally marked, and declaring that there was no election of Alderman in that ward, ordered a new election to be held on the eighth day of May. In this second election the plaintiff refused to participate, and the defendant, securing a majority of the ballots then cast, claimed to hold the office by virtue of the second election. Thereupon the plaintiff instituted this proceeding in equity in accordance with the provisions of chap. 4, R. S., and chap. 260 of the Public Laws of 1893, — 50 — amendatory thereof, asking the court to take jurisdiction of the matter and require the defendant to surrender the office to the plaintiff. The cause was heard by a single justice sitting in equity, and a decree rendered in favor of the plaintiff, declaring that he was legally elected Alderman in ward seven, on the second Monday of March, and that the second election was without authority and void. The defendant now brings the case to this court, by an appeal from that decree, claiming in the first place that the subject matter was within the exclusive jurisdiction of the Board of Aldermen ; and secondly, that the ballots alleged to be defective and irregular, were properly counted for the defendant. I. The six ballots in question were properly rejected by the warden, and improperly counted for the defendant by the Board of Aldermen. It is provided in sect. 10 of chap 102 of the Public Laws of 1891, popularly known as the Australian Ballot Law, that "The ballots shall be so printed as to leave a blank space at the right of the name of the party or political designation, and also at the right of the name of each candidate, so as to give to each voter a clear opportunity to designate by a cross mark, ( X ) therein his choice of candidates.” In the official ballots prepared under the act, at the right of the party name at the head of a group of names, and also at the right of the name of each candidate of the party group, a blank space was accordingly left, and the outlines of a square or rectangle printed therein. It is also provided by sect. 24 of the' act in question that, "The voter shall prepare his ballot by marking in the appropriate margin or place a ( X ) as follows : He may place such mark opposite the name of a party or political designation, in which case he shall be deemed to have voted for all of the persons named in the group under such party or designation ; or he may place such mark opposite the name of the individual candidates of his choice for each office to be filled.” It is further provided by sect. 27 that, "If a voter marks — 51 — more names for any office than there are persons to be elected to such office, or if for any reason it is impossible to determine' the voter’s choice for an office to be filled, his ballot shall not be-counted for such office.” It will be observed that this act of 1891 contains no express, provision for squares on the ballot. With respect to the ballots in controversy it appears that oír the one designated "No. 2,” the (X) was placed by the voter-above the name of the defendant as candidate for Alderman, and. not in the appropriate place at the right of it; on "No. 3,’” there was a cross above and also one beneath the defendant’s, name, but none at the right of it; on "bio. 6” the cross was. placed at the left of the defendant’s name ; on "No. 7” there was a cross under the party name at the head of the ticket, and one at the left of the defendant’s name ; and on "No. 8” there was no cross, (X ) whatever, but a short, straight line drawn diagonally across the square at the right of the party name, on the defendant’s ticket. On "No. 48,” not marked defective, there was a cross in the-square at the right of the name of each candidate except that for Mayor, on the defendant’s ticket, and a cross in the square-at the right of the party name on another ticket. It is contended by the defendant that, notwithstanding these-deviations from the literal requirements of the statute, the elector’s intention in each instance was sufficiently disclosed, by the marks actually made; that it was not " impossible to determine the voter’s choice ; ” and that these provisions of law respecting the preparation of the ballot by the voter should be construed as directory and not mandatory, in order that the intention of the elector may be effectuated and not defeated whenever it can be discovered by an inspection of the ballot. Whatever weight this argument may have been entitled to, or may have received, under the system which formerly prevailed in the conduct of elections, it must be remembered that the act of 189.1, now under consideration, was designed to inaugurate an important departure from the mode of voting which had existed in this State prior to its passage. — 52 — It is a recognized and familiar principle that the elective franchise, though guaranteed by the constitution as a sacred privilege to the persons there named as electors, must still be exercised under such regulations and restrictions as the legislature may deem reasonably necessary to maintain order in the elections, prevent intimidation, bribery and fraud, preserve the purity of the ballot box and thus secure a genuine expression of public sentiment. It is not claimed that there is anything unreasonable or difficult to be understood in the regulations established by the act in question. Its distinguishing feature is its careful provision for a secret ballot. The leading purpose of it was to give the elector an opportunity to cast his vote in such a manner that no other person would know for what candidate he voted, and thus to protect him against all improper influences and enable him to enjoy absolute freedom from restraint and entire independence in the expression of his choice. It was designed to secure complete and inviolable secrecy in that respect, and under established rules' of construction it should be examined with reference to the mischief to be remedied and the object to be accomplished, and interpreted, if practicable, so as to promote and not destroy the purpose of its enactment. With respect to four of the ballots it has been seen that the cross mark was placed either at the extreme left or midway above or below the name of the party or candidate, and not in the appropriate "blank space at the right” of such name, left for that purpose as required by the act of 1891; while on one of the ballots a short, straight line was used to mark the ballot instead of .a cross. If it be conceded that the intention of the voter may be correctly inferred from the mark actually made by him in each of these instances, it is still a fatal objection to the ballot that such an irregular and unauthorized mode of marking it might readily be, and probably would be, agreed upon with the voter as a distinguishing mark to identify the ballot cast by him whenever identification was desired. Such a palpable disregard of the — 53 — plain requirements of the act strikes at the root of the secret ballot system. Furthermore, if such marks were to be held effective, embarrassing questions respecting the intention of the voter would constantly arise upon inspection of the ballots, and great uncertainty and confusion inevitably result. The recent case of Parvin v. Wimberg, 130 Ind. 561 (30 Am. State 254), brings in question the construction of a similar statute, which, however, prescribes the form for a ballot with squares printed on it, and requires the squares to be stamped by the voter as the means of casting his vote. The court say : "The legislature has declared that the mode by which the elector shall express his choice shall be by stamping certain designated squares on the ballot. There is nothing unreasonable in the requirement, and it is simple and easily understood. If he does not choose to indicate his choice in the manner prescribed by law he cannot complain if his ballot is not counted. If ballots are to be counted when no square is stamped, at what distance from the square shall the stamp be placed before it can be rejected ? One board of election officers may reach one conclusion as to a class of ballots when the squares are not stamped, and another board may reach another and a different conclusion. If we hold this statute to bo directory merely and not mandatory, we are left entirely without any fixed rule by which officers of elections are to be guided in counting the ballots.” In the State of Khode Island the statute, like ours, makes no express provision for squares on the ballot but declares that the ballot shall be so printed as to give each voter a clear opportunity to designate his choice by a cross mark "in a sufficient margin at the right of the name of each candidate,” and that the elector "shall prepare his ballot by marking in the appropriate margin or place a cross opposite the name of the candidate.” As in this State, however, the official ballots appear to have been prepared with squares outlined upon them at the right of each name. In 1890 the question was submitted to the Supreme Court by — 54 — the Governor, whether any mark other than a cross placed in the square at the right of a name could be counted as a vote, and the court say : " Our opinion is that a cross is the only mark that can be counted as a vote.” But in answer to a second question, the court hold that inasmuch as their statute does not distinctly provide for squares upon the ballots, "a cross placed in the margin of the ballot on the right of, and opposite to the name of a candidate, should be counted as a vote for the candidate opposite to whose name it is placed, whether the margin have a square in it'or not, and, if there be a square in it, even though the cross is without or partly without the square. In re the vote marks, 17 R. I. 812. The elector who marked ballot "No. 48” effectually marked the names of two candidates for Aldermen from ward seven, and by the plain terms of the statute his ballot could not legally be counted for such office. II. The decision of the Board of Aldermen is subject to review by this court. True, the City Charter of Bangor says of the City Council that "each board shall judge of the election and qualification of its own members,” but this is to be "construed to afford a cumulative or primary tribunal only, and not an exclusive one.” Dillon’s Mun. Corp. § 202. It will not preclude a contestant from resorting to the court for a revision of a question of law. "The principle is that the jurisdiction of the court remains unless it appeal’s with unequivocal certainty that the legislature intended to take it away.” Dillon’s M. C. § § 202, 203, and authorities cited. See also Andrews v. King, 77 Maine, 224, where the supervising power of the court was carefully considered. It has been the policy of the legislature of this State to enlarge rather than to restrict the admitted power of the court to inquire .into the regularity of elections. (Chapter 198 of the laws of 1880 (incorporated in R. S., eh. 4), authorized a special proceeding in equity by a contestant for any county office, and chap. 260 of the laws of 1893, extended the scope of this statute to include a contestant for any — 55 — municipal office "who has been declared elected thereto by any returning board or officer.” In the case at bar it has been seen that the decision of the board of Aldermen brought in question the construction of the statute of 1891. It involved the determination of a question of law and not an issue of fact or a matter of discretion. The ruling of the single justice that their action was subject to revision by this court, was clearly correct. Decree, below affirmed with additional costs.