Riley v. Trainor

Chief Justice Musser delivered the opinion of the court: At a municipal election held in the town of Ordway, plaintiff in error, Riley, and the defendant in error, Trainor, were candidates for the office of trustee of the town, for the term of two years. Upon a court of the ballots, the election judges found that Riley had received one hundred and twenty votes, and Trainor one hundred and seventeen, and, upon a canvass, Riley was declared elected. Thereupon, Trainor instituted a contest, and, after trial and recount of the votes, the court found that Trainor had received one hundred and twenty-one votes and Riley one hundred and twenty, and rendered judgment in favor of Trainor. Several assigned errors have been argued by the plaintiff in error, but, in the view we take of the matter, it is necessary to notice one only. At the election, three trustees were to be chosen for a term of two years. On the official ballot, under the designation of that office, there were printed the names of three candidates in separate spaces, to the right of each of which there appeared the name of the party he represented and then a small square or space in which the voter might make his cross. Among these printed names was that of Riley. Below the printed names, were three blank spaces, as the law required, in which the elector might write the name of any person or persons, for whom he desired to vote, as trustee for the term designated. At the extreme right of these blank spaces were the small spaces for the cross mark, the same as appeared after the printed [157] names. When the ballots were counted, three were found, in each of which the elector had written three names in the blank spaces provided for that purpose, among which was written the name of Trainor. There was no cross or mark after or near any of the six names on the ballots. In fact the three ballots, so far as that office was concerned, appeared the same as they did when given to the elector, except that the three names were written thereon in the spaces that had been blank. With respect to the particular office in question, each appeared as follows: The election judges did not count these three ballots for any one for that office. The County Court held that they should have been counted for the persons whose names had been written in, and, therefore, counted them for Trainor. The election judges were right in not counting the ballots, for the electors failed to designate their choice of candidates as the law has always required. Sec. 2235, Rev. St., relating to the form of a ballot, after stating how the names of candidates shall be printed and arranged thereon, and that there shall be left at the end of the list of candidates for each different office as many blank spaces as there are persons to be elected to such office, in which the elector might write the name of [158] any person not printed on the ballot, for whom he desires to vote, says: ‘ ‘ The ballots shall be so printed as to give each voter a clear opportunity to designate by a cross mark (X) in a sufficient margin at the right of the name of each candidate, his choice of candidates and his answer to the questions submitted, and on the ballot may be printed such words as will aid the voter to do this, as ‘Vote for one,’ ‘Vote for three,’ ‘If you have not voted a straight ticket above, place a cross mark (X) with ink opposite each name you wish to vote for in the blank space left for that purpose,’ and the like.” That part of the section relating to emblems and voting a straight ticket, of course, has been repealed, but its requirement that the ballot should be so printed as to afford a voter a clear opportunity to designate his choice by a cross mark is not changed. Sec. 2259 provides: “On receiving his ballot the voter shall forthwith, and without leaving the enclosed space, retire alone to one of the voting shelves or compartments so provided, and shall prepare his ballot by marking, in ink, in the appropriate margin or place, a cross (X) opposite the name of the candidate of his choice for each office to be filled; and in case of a question submitted to a vote of the people, by marking in the appropriate margin or place a cross (X) against the answer which he desires to give; and in case of a vote for an entire or straight ticket or list of candidates, by making a cross (X) in the appropriate square after the name and emblem designating such ticket or list of candidates.” That part which relates to the voting of a straight ticket, has been repealed, but the requirement that he shall prepare his ballot by marking a cross opposite the name of the candidate of his choice for each office to be filled is still the law. Sec. 2266 provides that if an imperfect cross or mark be found near the name of a candidate which “appears to have been made with intent to designate the candidate so marked as the one voted for, such ballot shall not be rejected, if the intent of the voter to designate the person for whom he intended to vote can be reasonably gathered therefrom.” [159] It is clear from so much as remains of the foregoing sections that it is necessary for the voter to designate his choice by a cross-mark opposite the name of the person for whom he desires to vote. The Headless Ballot law of 1913, after the passage of which, the election in question was held, provides in Sec. 1: “The official printed paper ballot used at elections shall be arranged and prepared as now provided by law, except across the head or top of the ballot shall be printed only the following words: ‘ To vote for a person, make a cross-mark (X) in the square at the right of his' name.’ And in order to vote for any candidate whose name appears upon such ballot the voter shall place a cross-mark (X) in the square at the right of his name.” There can be no mistaking this language. It requires that in order to designate his choice the voter must use a cross-mark as the law requires. In this case no cross-mark was used anywhere with reference to any of the candidates for the particular office in question, and the ballots ought not to have been counted. The case of Baldwin v. Wade, 50 Colo. 109, 114 Pac. 390, is not like this one. There, the voter made a cross-mark (X) after the name of the candidate for whom he desired to vote, and the question was to ascertain the intent of the voter from the ballot that was marked with a cross-mark substantially as the law required. Here, there is no cross-mark at all and the voters failed to indicate any choice. If these ballots are not counted, Riley will have one hundred and twenty votes, as counted by the election judges and on the trial, and Trainor one hundred and eighteen votes, on the count as made at the trial, or one hundred and seventeen, as counted by the judges. This elects Riley. The judgment is reversed and the cause remanded with directions to dismiss the contest. Reversed and Remanded. Decision en bane.