Ott v. Brissette

GRANT, J. {after stating the facts). The sole question is whether the 12 votes cast for “0. H. Christian” should be counted for Christian Ott. The name ‘ ‘ Christian Ott” is not idem sonans with “O. H. Christian.” The names are as distinct as two names possibly can be. It is conceded that under the decisions prior to the adoption of the present quasi Australian ballot system these 12 votes could not be counted for relator. People v. Tisdale, 1 Doug. 59; People v. Higgins, 3 Mich. 233 (61 Am. Dec. 491) ; People v. Cicott, 16 Mich. 283 (97 Am. Dec. 141); People v. McNeal, 63 Mich. 294 (29 N. W. 728); Andrews v. Otsego Probate Judge, 74 Mich. 283 (41 N. W. 923). [719] These cases exhaustively discuss the reasons why neither "boards of election nor the courts can enter into evidence to determine that votes for different names were in fact intended to be for but one person. Does the Australian ballot system change the rule ? The argument in behalf of relator is that, inasmuch as he had nothing whatever to do with the printing of his name, but that the placing of his name is regulated by law, therefore he cannot be ■deprived of votes by the action, either fraudulent or innocent, of those whose duty it is to report the proceedings of the caucus and to print the name upon the ballot. If relator’s contention be correct, it follows that, if his name had not been printed upon the ballots at all, still the ballots should be counted for him; or, if the mistake had not been discovered, and all the ballots had been cast for O. H. Christian, still they must be counted for him. This would assume that every one who voted the Citizens’ ticket would have voted for the relator. It would assume —which is unusual — that every member of relator’s party would have voted for him. We must assume, in order to sustain the relator’s right to the office, that every one of the 12 men who voted for O. H. Christian would have voted for Christian Ott. A voter might know Christian Ott, and be unwilling to vote for him, but an elector might be willing to vote for any other man, and, though not knowing O. H. Christian, might vote for him. Courts cannot assume, under such circumstances, that such votes would have been cast for relator. The law makes ample provision to secure the correct printing of the ballots. Section 3660, 1 Comp. Laws, requires that “the proof copy of the ballot shall be open to the inspection of the •chairman of each committee at the office of the township clerk * * * not less, than two clear secular days before such election.” Had the proper officials filed this proof, and had the chairman of the committee examined it, no such mistake would have been possible. We are glad to state that it is conceded there was no intentional fraud on the part of any one. [720] We think the repeated decisions of this court in such cases are not supplanted by the Australian ballot system, and that the reason why neither boards nor courts can enter-into a determination of the intention of the voters any further than appears upon the face of the ballot remains undisturbed by the present system of voting. Judgment reversed, and entered in this court for respondent. The other Justices concurred.