Ellis v. Glaser | Cases | Westlaw

This is a contest over the office of comptroller of West Bay City. A recount was had under *397 the provisions of Act 208 of the Laws of 1887. Upon the recount as made by the common council, the respondent received a majority of 14. There were cast for the relator 1,169 votes which were undisputed, and for the respondent 1,147 votes which were undisputed. There were counted for the respondent an additional 40 votes which it is claimed by the relator should not have been counted, and there were counted for the relator 6 additional votes which it is claimed by the respondent should not have been counted for him. The respondent contends that the votes of the First ward should not have been counted for either candidate, as the certificate of the inspectors of election bears date the 4th day of April. Section 36 of Act No. 190 of the Laws of 1891 provides that “immediately on closing the polls the board shall proceed to canvass the votes”; and section 38 provides that, “after the count of the tickets or ballots has been completed, the result shall be immediately publicly declared.” The board did not in fact complete the canvass on the night of the election, but the return bears date the next day. We do not think the delay in canvassing the vote should result in disfranchisement of the voters. It would be a dangerous rule to establish that the board of election inspectors could thwart the will of the voters by a neglect to perform the duty imposed upon them by statute, except where the plain provisions of the statute require it. See McCrary, Elect. §§ 190, 193, 247, and cases cited. It becomes necessary, therefore, to determine whether the ballots which were counted on the recount by the common council should have been canvassed. It is claimed by the relator that the 40 ballots which the respondent claims should have been counted for him, and which were in fact counted by the common council, bear distinguishing *398 marks, within the meaning of the law, and should have been excluded.

**650 Act No. 190 of the Laws of 1891 was in force when the election in question was held, and the material provisions of that act were as follows: “Any elector may mark or stamp a cross in the space below the party name, printed at the head of the ballot. If marked thus, such ballot shall be counted for all the nominees of such party whose names appear on the ballot in that column. If the voter shall have erased some name in the column, or marked a cross before the name of a candidate in some other column for the same office, or written in a name under the name of any candidate, the name of such candidate shall not be counted as voted for by such ballot, but if the name of the candidate shall have been erased, such vote shall be counted for the candidate whose name in another column shall have been marked or whose name shall be written under the name erased.” Section 36 contains the provision that “any ballot which shall bear any distinguishing mark or mutilation shall be void, and shall not be counted, and any ballot or part of a ballot from which it is impossible to determine the elector's choice of candidates shall be void as to the candidate or candidates thereby affected.” These provisions have never been before the court for construction. Statutes containing similar provisions have been adopted in various states of the Union, and have generally been construed as involving a radical departure from the former method of voting, and, generally, a strict compliance with the requirements of such statutes has been required before the vote should be counted. In Rhode Island the statute provides “that the elector shall prepare his ballot by marking in the appropriate margin or place a cross opposite the name of the candidate of his choice for each office to be filled,” and also that “each ballot shall be so printed as to give each *399 voter a clear opportunity to designate by a cross mark in a sufficient margin at the right of the name of each candidate, his choice of candidates.” Pub. Laws R. I. 1889, c. 731, §§ 6, 18. This act was construed by the supreme court, and it was held–First, that, as the statute did not require a square to be printed on the ballot, a designation by a cross at the right of the name of the candidate was sufficient; second, that no other mark than a cross was a sufficient designation of the voter's intent under the statute. The court said: “If another mark be used, there is nothing to certify its meaning. It might be conjectured that it was used inadvertently instead of a cross, but, in our opinion, such a conjecture would not justify the counting of it. The statute declares that ‘no voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him.’ If marks other than crosses were counted, they might be used both to answer the purpose of crosses and to identify the ballots.” It was further held that the cross, to be effectual as a vote, must be placed at the right of a name printed on the ballot, and that a cross placed elsewhere was not a compliance with the statute. In re Vote Marks, 17 R. I. 812, 21 Atl. 962. The statute of Indiana provided that the voter should “indicate the candidates for whom he desired to vote by stamping the square immediately preceding their names: *** provided, however, that if he shall desire to vote for all candidates of one party, *** and none other, he may place the stamp on the square preceding the title under which the candidates of such party *** are printed, and the vote shall then be counted for all the candidates under that title, unless the name of one or more candidates under another title shall also be stamped, in which case the names of the candidates so *400 stamped shall be counted.” Laws Ind. 1889, c. 87, § 45. The court held, first, that, in order that the elector may have his ballot counted at all, he must touch some one of the squares with the stamp; that his choice should be indicated in no other manner; that the elector cannot stamp his ballot elsewhere, and leave the election board to guess at his intention. After the election was held which was under consideration in that case, the law was amended so as to provide that “a stamp placed upon a ballot which does not touch a square thereon is declared to be a distinguishing mark, and the ballot is not counted.” Laws Ind. 1891, c. 94, § 13. The court say that “this amendment was intended to make certain that which prior to its passage was left, in some measure, to construction, but it only makes certain that which was intended by the legislature when it passed the original section.” Parvin v. Wimberg, 130 Ind. 561, 30 N. E. 790. See, also, Sego v. Stoddard (Ind. Sup.) 36 N. E. 204. In Maine the statute provides 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; or he may place such mark opposite the name of the individual candidates of his choice for each office to be filled.” Acts Me. 1891, c. 102, § 24. The court say of this statute that “its distinguishing feature was 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 held that the ballot could not be counted when the cross was placed to the left, or midway above or below the name of the party or candidate, and not in the appropriate *401 blank space at the right, or where the ballot mark was a straight line instead of a cross. It was said: “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 **651 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 plain requirements of the act strikes at the root of the secret–ballot system.” Curran v. Clayton, 29 Atl. 930, 86 Me. 42.

These cases support what we believe to be the true rule, that any mark upon a ballot, other than one appropriate and necessary under the law to designate the intention of the voter, must be regarded as a distinguishing mark. Any other rule would result in endless confusion, and would make the local inspectors judges of the voter's intention, and lead to bitter controversies. It was the evident purpose of the legislature to provide against the necessity for this by laying down rules for the guidance of the voter, and providing a simple method of registering the vote; and while, in some instances, a rigid adherence to the prescribed method may result in throwing out honest ballots, we have not been able to find any safe middle ground to occupy. Either the question of the voter's intent must be held a question of fact in all cases to be determined by the inspectors on an examination of the ballot, or it must be held that such marks, and such only, as can, under the law, be properly placed upon the ballot, and as are necessary to be there placed to register the voter's intent, are permissible. The only instance in which an unnecessary mark is recognized as possible is in section 34, where it is provided that, if the elector votes for more than one person for the same office, such ballot *402 shall not be counted for those persons, but shall be, as to them, null and void. This implies that a mark may be made in such a manner as not to indicate whom the voter intended to vote for. This might well have occurred under the law of 1891, through an unsuccessful attempt to vote for a candidate on the opposing ticket, as, under section 26, it was not only necessary to mark the name of such candidate with a cross, but also to erase the name of the candidate on the voter's own ticket. By the law of 1893 the legislature has wisely dispensed with the necessity for the erasure of the name. See Laws 1893, p. 329.

Applying the rule of construction which we think should obtain in this case, there can be no doubt that the relator was elected. A large number of the defective ballots had a cross under the party name of the Republican and also of the Citizens' ticket. The tickets were, it is true, identical; but a single mark constituted a vote, and the second mark was wholly unnecessary and inappropriate to register the voter's intent,–as much so as would have been any mark placed under the Democratic ticket. Such mark might have been an agreed means for identification of the ballot, and must be held to have been a distinguishing mark. There was also a number of tickets in which the names of the candidates as they appeared on both tickets, both being identical, were marked. These are subject to the same considerations. As above stated, the law provides that, where the candidate desires to vote a straight ticket, it shall only be necessary to mark a cross under the party name. In such cases there are no conditions under which the voter is required to erase names on another party ticket, or place any mark on such tickets, unless he desires to vote for some candidate *403 whose name appears thereon, in which case he is required to place a cross in the square opposite the name of such candidate. There are a number of ballots counted for respondent in which the voter has, after marking one party ticket, erased by a cross or straight mark the names on the opposing ticket. As these marks of erasure are not only wholly unnecessary, but under the law inappropriate to express any intent, they must be treated as distinguishing marks. There are numerous other tickets which it is not necessary to specially designate. A large number contain, not only the necessary cross under the party name, but from one to a dozen other crosses. Others contain particular devices. In one instance, a name is written on a portion of a ticket which does not purport to be the name of a candidate for any office. These tickets fall so clearly within the rule that it is unnecessary to further particularize. We think judgment should be entered for the relator.

*407 A rehearing has been had in this case, and, after full consideration, we feel constrained to modify in substantial respects the original opinion. In the former opinion the court held, in substance, that any mark upon a ballot not appropriate and necessary to express the voter's intention should be regarded as a distinguishing mark; and, applying this rule, it was held that when the name of the candidate appeared on two tickets, and a cross was placed in an appropriate place on each ticket or opposite the name of the candidate on each ticket, neither vote should be counted. This conclusion was reached with some hesitancy, and in view of the practical difficulty of *408 applying any other general rule. But it is now earnestly pressed upon our attention that this construction runs counter to the practical construction which has been given by the law department of the state and by the election inspectors, and we feel impressed that sufficient consideration was not given to this fact in reaching the conclusion above stated. It appears that on the 24th of February, 1892, the attorney general prepared a letter of instruction to inspectors of election and electors, in which it was stated that where ballots were used on which two tickets appeared with a name of a candidate for a place on each ticket, and a cross was placed **652 in an appropriate place on each ticket, the ballot should be counted for such candidate. Attorney General's Report for 1892, pp. 183, 188–190. The question was again presented in october, 1892, when the attorney general gave a similar opinion, which is found at page 135 of the report of the attorney general for 1893. In this opinion it was said: “The fact that the voter has indicated in more than one way that he desires to vote for any candidate on the ballot is no reason why he should be deprived of his vote or the candidate deprived of credit.” It would appear, therefore, that at three different elections the voters have acted with this opinion of the attorney general before them; and, if we adhere to the construction which we have given to the statute, the result is that many electors must have lost their votes, although they have followed implicitly the instructions of the legal department of the state. This certainly is a result to be deprecated, and one which should only be reached if forced upon us. It is evident that the statute is not entirely clear, as there is no express declaration as to what constitutes distinguishing marks; and the determination of that question depends upon the construction which is to be *409 placed upon the various provisions of the statute, quoted in the former opinion. It has become a rule of law that the interpretation placed upon a statute by the different departments of the state having a duty to perform under the statute, while not absolutely binding upon the judicial department, is to be given weight in a doubtful case. In Westbrook v. Miller, 56 Mich. 151, 22 N. W. 256, it was said: “When, in the performance of executive duties, it becomes necessary for the executive department to construe a statute, great deference is always due to its judgment, and the obligation is increased by the lapse of a considerable time before its acts are called in question,”–citing numerous cases, among which are Malonny v. Mahar, 1 Mich. 26; Britton v. Ferry, 14 Mich. 53; and Improvement Co. v. Phelps, 47 Mich. 299, 11 N. W. 167. See, also, Baker v. Police Com'rs, 62 Mich. 327, 28 N. W. 913; People v. Hurst, 41 Mich. 328, 1 N. W. 1027; People v. May, 3 Mich. 598; Pease v. Peck, 18 How. 595; Johnson v. Ballou, 28 Mich. 379. We think, in view of this practical construction, it should be held that the class of ballots above referred to are not illegal. While it may be said that the placing of the cross opposite the name of the candidate on each of the two tickets was unnecessary, neither, by itself, was inappropriate to express the voter's intent, and we feel constrained to hold that the rule which was laid down in our first opinion was too rigid. There were cast for the respondent certain tickets which had a cross under the party name of the Republican ticket, and also of the Citizens' ticket, both tickets being identical. These we hold should have been counted. In the record they are illustrated by Exhibit 2.

In the same opinion of the attorney general first quoted a ticket was presented in which the voter has placed opposite the names of the individual candidates on one ticket a cross, and has erased the names of the candidates on opposing tickets, and the opinion was expressed that *410 this was a valid vote for the candidates opposite whose names the cross was placed. The same considerations which lead us to hold that the votes first mentioned should be counted induce us to hold that these should likewise be counted. The erasure of the names upon the opposing ticket, while unnecessary, may have been made for the purpose of making more clear the intention of the voter. Tickets of this class are illustrated by Exhibit S.

This case is presented on demurrer to respondent's rejoinder to relator's replication. There are 40 votes in dispute which were counted for respondent, and 9 votes which were counted for relator which are in dispute. In determining what votes should be counted or rejected, we are to be guided by the rejoinder of respondent, which the demurrer admits to be true, and for convenience we will tabulate them by precincts:

*411 There are a number of these ballots which have under the heading more than a single cross. These crosses were not appropriate to express the voter's intent, and the ballots are excluded. Exhibit 3 has a cross in the square under the Republican ticket, and two marks similar to commas in the square under the Democratic ticket. These marks could not have been used to express the voter's intent, and the ballot should be excluded. One ticket (Exhibit H) has a cross in the appropriate place under the Republican ticket, and on the ward ticket the name of the candidate for alderman is erased, and the word “Hayes,” the surname of the candidate on the opposing ticket, written in. This ticket, we think, should be counted, as it is evident that the purpose was to express an intent to vote for Hayes, although the voter failed to write his full name. Exhibit 17 had a cross under the heading “Republican **653 Ticket,” with a half circle round it, and a figure 9 written in the square under the head “Citizens' Ticket.” This should not have been counted, as the figure used certainly could not have been appropriate to express any intent of the voter, or so intended. Of the tickets counted for the relator, Exhibits B, W, and X should have been excluded, on account of multiplicity of crosses. Exhibit M contained a cross under the head of the “Democratic Ticket,” and a cross opposite the name of Charles Glaser, on the Republican ticket, with a mark underneath the name of James A. Scott, without erasing the name. This ballot was counted for Scott, but should not have been counted for either, as the voter's intent could not be ascertained. Exhibit O was counted for the relator. The ticket had *412 no cross upon it, but a blot in the center of the ticket. This should not have been counted. Exhibit P had no cross upon it, but a straight line underneath the Democratic ticket. This should not have been counted, as the intent of the voter was not expressed in the manner provided by statute. Exhibit Z should have been excluded, as it had a cross under the Democratic ticket, outside the square, and the square was inclosed in a large circle, which could not have been used to express the voter's intent. Of the nine votes counted for relator, which are in contest, one (Exhibit C) was, we think, under the averments of respondent's rejoinder, properly counted for him. It is alleged of this ballot that it “was marked with a cross in the square at the head of the Democratic ticket, and one of the names of the ward officers was partially erased, and the name Walter L. Portt written therein with a lead pencil.” This was plainly an attempt to vote for Walter L. Portt for the office designated, and it should not be treated as a distinguishing mark. It is also apparent from the averments in respondent's rejoinder that one ballot which was counted for respondent should have been counted for relator. This ballot was one cast in the Third ward, which is described in respondent's rejoinder as follows: “The ticket was marked with a cross in the square at the head of the Republican ticket, and the name of Charles Glaser erased, and James A. Scott written in the Republican ticket, which ballot was also counted for respondent.” Deducting from the vote of the relator 8 votes, shown by respondent's rejoinder to have been improperly counted for him, and adding the vote in the Third ward just referred to, which was counted for respondent, and which has been deducted from his vote, shows the relator to *413 have received 1,171 votes. Deducting the 17 votes from respondent's vote, he is shown to have received 1,170. The relator was elected by a majority of 1 vote, and judgment should be entered for him.