Strosnider v. Turner

By the Court, Norcross, J.: This is the second appeal of this cause. (29 Nev. 347.) Action was brought by appellant to contest the election of respondent to the office of short-term Commissioner of Lyon County. Upon the first trial the lower court found that the plaintiff, Strosnider, had received 276, and defendant, — 160 — Turner, 275, lawful ballots. Upon the first appeal we held that the court had rejected certain ballots cast for respondent, which were lawful, and should have been counted. Upon the second trial of this cause the lower court found that the plaintiff had received 277, and the defendant 278, lawful ballots. This appeal again presents for consideration the rulings of the court upon the admission and rejection of certain ballots. - Plaintiff’s Exhibit No. 11 was properly rejected, there appearing upon the face of the ballot three crosses stamped opposite the name of George Springmeyer, candidate for attorney-general, two within, and one without, the square. Plaintiff’s Exhibits Nos. 3 and 10 were properly-rejected, none of the crosses appearing thereon being stamped. Apparently they were made by using • one corner of the stamp as a pencil would be used. Section 20 of the act of the legislature, known as the "Australian- Ballot Law” as amended March 21, 1901, provides, among other things, that: "On receiving his ballot the-voter shall immediately retire alone to one of the places; booths or compartments. He shall prepare his ballot by stamping a cross or- X in the square, and in no other place, after the name of the person for whom he intends .to vote for each office. In ease of a constitutional amendment or other question - submitted to the voters, the cross or X shall -be placed after the answer which he desires to give. Such stamping shall be done only with a stamp in black ink, which stamp, ink and ink pad shall be furnished in sufficient number by the county clerk for each election precinct in the county!’ (Stats. 1901, p. 112,. c. 100.) .. Plaintiff’s Exhibit No. 9-was- properly rejected. The ballot contains two rectangular marks or blotches in squares opposite the names of two candidates. Marks of this kind were fully considered upon the- former appeal.' Plaintiff’s Exhibit No. 8 was properly rejected. The ballot contains two distinct cfosses- deliberately stamped in the square opposite the name of J.- A. Carter,- candidate for justice of the peace. -Ballots-so'marked have repeatedly been held illegal by this court. — 161 — Error is assigned in the court’s refusal to reject ballot ■ marked "Plaintiff’s Exhibit No. 1” Objection was made upon the ground that in the squares opposite the names of two candidates there appear double crosses. We think these marks can hardly be considered double crosses in the sense that they would be regarded as distinguishing marks. They have the appearance of an attempt to make a second impression of the stamp in order to make it clearer, or to rectify some defect. The second stamping did not exactly cover the first. The resulting mark is in character similar to that held to be valid in the case of State v. Sadler, 25 Nev. 131, 179, and therein referred" to as "the so-called double crosses, where it is apparent the voter had attempted to retrace the lines composing the cross.” Ballot marked "Plaintiff’s Exhibit No. 6” was objected to on the ground that in the square opposite the name of George A. Bartlett, candidate for member of Congress, there appears a double cross. We think the court erred in overruling this objection. The voter evidently first marked a cross with one corner of the stamp as Plaintiff’s Exhibit Nos. 3 and 10, supra, were marked. Upon discovering his error he made a proper stamp' beside the illegal one. The voter, when he discovered his mistake,-instead of trying himself to rectify it, should have returned his ballot to the election, officers and obtained a new one, as the law prescribes. To hold a ballot of this kind to be legal would open the way for the secrecy of the ballot to be evaded, the prevention of which is one of the main purposes of the law. Error is assigned in not rejecting ballot marked "Plaintiff’s Exhibit No. 5.” This ballot is similar to Exhibit No. 7, and the court, we think, did not err in counting it. Ballot marked- "Exhibit No. 4” was not stamped as required by law, but was marked with a lead pencil throughout, and was properly rejected. Ballot marked "Exhibit No. 2” was erroneously counted over plaintiff’s objection. All of the crosses were stamped between the name of the candidate and the party designation, instead of in the square after the name of the person for whom he intended to vote, as required by the statute. Ballots- so — 162 — marked were held to be legal in State v. Sadler, supra. That case, however, was decided' before the amendment of 1901, supra, which changed the law in. respect to the place prescribed for marking the ballot. The law now requires the cross to be stamped "in the square, and in no other place, after the name of the person for whom he intends to vote for each office.” The printed ballots provide a square within which it is the intention of the law the stamp should be placed. Ballot marked "Exhibit No. 1” is objected to upon the ground that a distinguishing mark appears after the name of O. A. Brooks, candidate for member of assembly. The mark .in question is a blurred cross. The cross is plainly visible, and the defect apparently was occasioned by too much ink upon the stamp, or from some other accidental cause. Appellant assigns error in'the counting of three ballots, the legality of which we determined upon the former appeal. Such assignments require no further consideration. The record in this case contains certain ballots, admitted and counted for appellant over respondent’s objections. As we held upon the former appeal, following the case of Dennis v. Caughlin, 22 Nev. 453, these ballots are not strictly before us. However, as their validity has been argued, we deem it advantageous to express our views upon them in order that the case may reach a final determination at the earliest possible date. Ballot marked "Plaintiff’s Exhibit No. 12” was objected to "upon the ground that there appear indescribable and distinguishing marks from which the ballot could be identified opposite nearly all the names.” It is apparent that the person who prepared this ballot used a stamp containing very little ink upon it to begin with, and did not thereafter apply it to the ink pad before completing the marking of the ballot. While one may readily conclude, from the fact hat the first few crosses stamped were fairly distinct, that all the remaining marks were made by the stamp properly applied, it must be admitted that a number of the resultant marks have little, if any, resemblance to a cross, and taken alone would not be recognized as such. However, this ballot should have been rejected for the reason that two crosses — 163 — appear to have been deliberately stamped opposite the name of Robert Raftice, candidate for state controller. It would seem quite probable from this ballot that the voter, having first stamped a cross in the square opposite the name of J. C. Knust, socialist party candidate for state controller, placed two opposite that of Raftice, possibly to impress the fact that Raftice was the one for whom he intended to vote. Ballot marked "Defendant’s Exhibit No. 2” was admitted and counted for appellant over respondent’s objection, as follows: "That opposite the name of Orvis Ring there is an indescribable mark, and opposite the name of D. W. Melarkey there is a double cross!’ We think the objection is well taken, and the ballot should have been excluded. Ballot marked "Defendant’s Exhibit No. 1” was admitted, and counted for appellant over the following objection of respondent: "That, taking the ballot as a whole, it is impossible to determine for whom the voter intended to vote for county commissioner.” So far as the objection made is concerned, we think it is not well taken. A small portion of the cross projects over the line dividing the squares opposite the names of appellant and respondent. The main portion of the cross, however, is opposite the name of appellant, and we think, "taking the ballot as a whole” it was the voter’s intention to cast his vote for appellant. Ballot marked "Defendant’s Exhibit No. 3” was objected to upon the grounds: "That there appears a distinguishing mark after the name of D. P. Randall” etc. Without determining whether the ballot is subject to other objections noted, it is sufficient to say that it contains a cross deliberately stamped outside the square provided for such purpose, and in the blank space immediately below the words " Silver Party” thus rendering the ballot invalid. Ballot marked "Defendant’s Exhibit No. 4” is unobjectionable. The most that can be said against this ballot is that some of the crosses stamped are imperfect. The ballot is clearly admissible under the rule laid down in the case of State v. Sadler, supra. If all of the ballots contained in the record were properly before us, we should affirm the judgment. However, as our — 164 — action must find its basis upon some error assigned, and as we have determined that the court admitted and counted for respondent, over appellant’s objection, three ballots which we think should have been excluded, we are obliged to reverse the judgment and remand the cause for a new trial, which is ordered.