Parker v. Hughes

The opinion of the court was delivered by Cunningham, J.: At the spring election of 1901, in the city of Topeka, plaintiff and defendant were opposing candidates for the office of mayor. The plaintiff had received the nomination from the democratic party and had also been nominated at a meeting of citizens, so that his name appeared twice upon the official ballot. The defendant was the regular nominee of the republican party and had been declared elected by the proper board of canvassers. (Hughes v. Parker, 63 Kan. 297, 65 Pac. 265.) This is an original proceeding in quo warranto to determine whether plaintiff or defendant was, in fact, elected to the office of mayor at said election. Both parties allege that they received a majority of the votes cast and are entitled to hold the office. The court appointed James E. Larimer, Esq., commissioner to hear evidence, count the ballots and ascertain the number and character of those disputed. This he has done in a most painstaking and careful manner, and from his report we find that, of the votes cast at said election concerning which no objections were made by either party, Mr. Hughes received 6285, Mr. Parker 6125; that, in addition to this number, there were 274 ballots to which objections for various causes were made by both parties, 217 of these objections being made on behalf of Mr. Hughes and 57 on behalf of Mr. Parker. From the second precinct of the first ward there — 218 — came a package of thirty-six ballots, which package was marked ‘-‘This package contains defective or objected-to ballots not voted.” From the evidence taken, it reasonably appears that twenty-nine of these ballots were put into the ballot-box, and the probabilities are that this package was made up of seven ballots which, for some cause or other, had been returned by the voters to the judges before they were voted, and the other twenty-nine were ballots which came out of the ballot-box, but which had been put aside during the count of the ballots by the judges of election, because their counting had been objected to, and then finally had been gathered together and placed in the package marked as above. The 274 ballots were imperfect for a great variety of reasons, the greater part of which were based upon the claim made by the defendant that “double-marked” ballots, that is, those on which the name of Mr. Parker was marked in both the democratic and citizens’ column, should not be counted. This class of votes, so far as they relate to the office of mayor, will be illustrated by a copy of the ticket, printed on this page. The defendant claims that these should not be counted because such double markings constitute dis — 219 — tinguishing marks, within the meaning of the statute ; and, further, because they are vicious, under the provisions of the statute which provides that, “if a voter marks more names than there are persons to be elected to an office, his vote shall not be counted for such office.” The court, however, is of the opinion that neither of these claims is well founded; that in this case the voters did not mark more names than there were persons to be elected to an office; they only marked the same name more times than was necessary. The-majority of the court, while not agreeing upon the reasons therefor, arrive at the same conclusion, that such ballots are not invalid because of being double-marked. The chief justice and Mr. Justice Pollock'arrive at this conclusion from the following reasoning: Section 25 of the Australian-ballot law, chapter 129, Laws of 1897, specifically points out certain ballots that shall not be counted if found marked in the manner therein forbidden. This list prohibits the use of ink or pencil of any other color than black, and requires, by reference to section 22, that the mark used to distinguish the voter’s choice shall be a cross, and they think that this list of acts, so enumerated, is exclusive of all others ; that the express mention of them for this purpose implies that others are excluded ; that, had the legislature intended that ballots should be excluded for other reasons than those mentioned and the voter thus disfranchised, it would have said so and not left it to inference; that, there being no statute requiring the rejection of ballots because of distinguishing marks, no ballot may be rejected because of such marks. True, section 27 of this law makes the act of placing such marks upon the ballot a penal one, and while the general law of the state is that an act done in violation of a criminal statute is a — 220 — nullity, this rule does not here obtain, for the reason that it is overborne by the stronger one, that the legislature having designated certain ballots that must be rejected, those are the only ones that can be rejected. This view will be found well supported by the following authorities where the provisions of the Australian-ballot system have been construed and applied : Wigmore, Australian-ballot System (2d ed.) 193, et seq.; People, ex rel. Fenny, v. Bd. of Canvassers, 156 N. Y. 36, 50 N. E. 425 ; Attorney General v. Glaser, 102 Mich. 406, 61 N. W. 648 ; Sawin v. Pease, 6 Wyo. 92, 42 Pac. 750 ; State, ex rel. Orr, v. Fawcett, 17 Wash. 188, 49 Pac. 349 ; Nicholls v. Barrick, 27 Colo. 432, 62 Pac. 202. Clearly, under this reasoning, the double-marked ballots must be counted. Mr. Justice Smith is of the opinion that no right to have the vote counted in a candidate’s favor ought to spring from a criminal act on the part of the voter, so that, if it appears that a mark has been placed upon a given ballot for the purpose of distinguishing it, such ballot cannot be counted. The placing of names or initials upon the ballot and the making of cross-marks in the squares opposite the blank spaces with no names written therein are cited as instances of such distinguishing marks, these making it apparent that the voter intended to violate the law. But the double marking'of the same name, where that name has been printed twice, and thereby an implied invitation extended to the voters so to mark, is not of itself such a distinguishing mark. While section 27 of chapter 129, Laws of 1897, makes it a penal act for a voter to place on his ballot “any character or mark for the purpose of identifying said ballot,” he feels sure that no court would sustain a conviction under ¡this provision of any one of the 176 electors who voted — 221 — these double-marked ballots, upon their admission of the fact; hence,' because these voters would not be liable to the punishment under this penal provision for voting these double-marked ballots, he thinks that they should be counted ; that, as regards other irregular and questionable markings on the ballots, the judges of election or of courts called upon to count the same must in each case determine from an inspection of the ballot what the intention of the voter was— whether such mark was intended as a distinguishing one or not. 'Mr. Justice Ellis is of the opinion that not only must those ballots which are marked in the manner forbidden by section 25 be excluded, but also ballots marked in contravention of the terms of the penal section 27— that is,- a ballot bearing a distinguishing mark purposely made should be rejected if the mark is of such nature, or is so placed on the ballot, that the judges or courts might find, in the absence of testimony, or upon testimony if offered, that there were reasonable grounds for believing that such mark was made by the voter with the intent that his ballot should be distinguished from others in the box; that, in determining what ballots should be counted, the court should look at the questioned one and from such inspection, aided by the notorious facts and circumstances of the election at which it was cast, determine whether the questioned mark was intended by the voter as a distinguishing mark or not, and if, upon such inspection and consideration, aided by evidence aliunde if offered, the court should conclude that the mark was made for the purpose of distinguishing the ballot, or might be reasonably thought so to be intended, the ballot should not be counted. In this case, applying this rule, the conclusion is reached that the double-marked ballots — 222 — should all be counted for Mr. Parker. The justice whose views have just been outlined lays down four rules to govern in the counting of questioned ballots. He would exclude : (1) Those where ink or pencil other than black has been used to mark it; (2) those which are not marked as required by other sections than section 25 ; (3) those where for any reason it is impossible to determine the voter’s choice for an office to be filled, excluding the vote only as to such office ; and (4) those where the voter has marked more names than there are persons to be elected to an office, excluding the vote only as to such office. Whether we take the view that the counting of ballots with distinguishing marks is not prohibited, but rather required by the statute, or that these double-marked ballots are not vicious as ballots marked to be distinguished, it follows that they must all be counted for Mr: Parker.- We quote with approval the law as laid down in the syllabus in People, ex. rel. Fenny, v. Bd. of Canvassers, 156 N. Y. 36, 50 N. E. 425 : “The presence of cross-marks before the name of the same candidate for the same office in two different columns is to be regarded as surplusage merely, and does not render the ballot invalid as a ballot marked for identification.” (See, also, Attorney General v. Glaser, 102 Mich. 406, 61 N. W. 648; Bawin v. Pease, 6 Wyo. 92, 42 Pac. 750.) It is not contended by the defendant that these double-marked ballots, of which there are some 176, are in terms excluded from the count by the statute, but only that they must be excluded because such double marking constitutes a distinguishing mark, by which it may be inferred that the voter sought to distinguish his ballot for the purpose of being able to assure a purchaser of votes that he had “delivered the goods.” It must be admitted that these marks — 223 — do not necessarily indicate a corrupt purpose. It is as reasonable, or more reasonable, to say that the voter so marked his ballot out of a superabundance of caution, or because he found Mr. Parker’s name printed twice and supposed therefore that he was to put down two crosses, as to say that his act must be explained upon the hypothesis of a corrupt motive. This is made doubly forceful when we remember the large number of ballots so marked, coming from all parts of the city. It is the duty of the court to ascertain the intent of the voter, and, if it may fairly and reasonably deduce a motive consonant with honesty, rather than dishonesty, from his ballot, to count the same for the candidate of his choice, rather than to disfranchise him. A distinguishing mark, to warrant the rejection of the ballot, must be found to have been made for the purpose of identification. These double-marked ballots must all be counted for Mr. Parker. This leaves fifty-seven ballots claimed by Mr. Hughes and objected to by Mr. Parker, and bout forty-one ballots claimed by Mr. Parker and ■•bjected to by Mr. Hughes, to be disposed of. No general rule other than that already laid down can bo invoked to aid us in counting these. Quite a ".umber are marked with ink or with pencil other than black, and these are all rejected. Some are marked with a single stroke, thus |\] or thus £7] or ib us [TJ or thus Q, instead of a cross; these also must be rejected. Some are marked with a cross after a name and also with a cross in the square after the blank space on the right of the ballot, without any name being written there ; these are rejected as being distinguishing marks. Some are found with lines drawn diagonally across the face of the ticket not voted; others with perpendicular lines through these — 224 — names ; others where names of candidates have been wholly or partially obliterated by pencil marks drawn over them ; others with names or initials written thereon — these are rejected as being made invalid by distinguishing marks. As to the balance of these disputed ballots, they have all been carefully gone over and have been rejected or counted, in each case as the court by an examination of the markings thereon came to the conclusion that there were reasonable grounds for believing that such mark was, or was not, made by the voter with the intent that his ballot should be thereby distinguished. In the matter of the thirty-six ballots which came from the second precinct of the first ward, the plaintiff claims that the extra seven ballots should be excluded, under the rule laid down by McCrary in his work on Elections, section 495 (4th ed.) — that is, by deducting the same from the vote of both parties in proportion to the vote for each in the precinct. The defendant claims that, inasmuch as it cannot now be determined which of these ballots were voted, the entire thirty-six ought to be excluded from the count; otherwise votes might be counted which were never voted. To sustain this claim, the rule in Paine on Elections, section 513, is cited. We are of the opinion that the rule invoked by the plaintiff is the proper one, so we consider all of these ballots. But upon looking into them we find there are but twenty-one which are entitled to be counted, the balance being faulty for various reasons. These twenty-one ballots we count for the candidates for whom they were cast in each case. From the entire list of disputed ballots, we find that Mr. Parker is entitled to have counted for him 189. — 225 — These, added to his undisputed ones, give him a total vote of 6314. Mr. Hughes is entitled to have counted for him, out of the disputed ballots, twelve, which gives him a total vote of 6297, giving Mr. Parker a majority of seventeen votes. It follows, therefore, that the judgment of the court must be for the plaintiff. Doster, C.J., Smith, Pollock, JJ., concurring. Johnston, Greene, JJ., dissenting.