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I am of the opinion that no legal impediment is put in the way of the voter by this requirement.

As to the other matters discussed at the argument, it is enough to say that we find no material criticism of the provisions of the statute.

The judgment must be affirmed.

But it would seem that the legislature may not in its desire to prevent the marking of ballots oblige the voter to vote merely for the candidates whose names are on the official ballot. De Walt v. Bartley, 146 Pa. St. 529; Chateau v. Jacob, 88 Mich. 170; Sanner v. Patton, 155 Ill. 553, cf. State v. McElroy, 44 La. Ann. 796.

3. Construction of Election Regulations.

BOYD V. MILLS.

Supreme Court of Kansas. January, 1894.

53 Kan. 594.

ALLEN, J. This is an original proceeding instituted in this court by 0. C. Boyd as plaintiff, to try the right to the office of sheriff of Barber county. The petition shows that at the election held on the 7th day of November, 1893, according to the official canvass of the votes cast, the plaintiff received 508 and the defendant 516 votes. The plaintiff alleges that many illegal votes were cast and counted for the defendant, and that the plaintiff received a majority of the legal votes.

It is conceded that all of the ballots used in Deerhead township were of the same color, and the sole question with reference to their legality arises from the color of the paper. It is contended on behalf of the plaintiff that the statute is mandatory, and that no ballot can be counted unless it conforms strictly to the requirements of the law; that a court is not at liberty, by construction, to do away with any of its requirements. In this contention, we think the counsel for the plaintiff is in the main correct, and that the wholesome provisions of the law are neither to be disregarded nor construed away.

That the ballots in fact used were printed and furnished by the county clerk, and were in all respects the same as the official ballots, excepting the color of the paper, is conceded, and it is also conceded that the ballots used in the one township were uniform in color. Does this fact operate to render the election at that voting precinct a nullity? In considering the statute, we are to keep steadily in mind the evident purpose of the legislature in its enactment. It is plain that among the most prominent ends sought to be attained was that of absolute secrecy. Any mark or distinguishing feature on the ballots which would enable a person other than the voter himself to identify the ballot, and find out how the elector voted, was intended to be strictly prohibited.

The case of the People ex rel. v. Board of Canvassers, 129 N. Y. 395, is relied on. The statute of New York differs materially from our own. The law requires that “on the back of each ballot shall be printed in type known as great primer Roman condensed capitals the indorsement, 'official ballot for,' and after the word 'for' shall follow the designation of the polling place for which the ballot is prepared, the date of the election, and a facsimile of the signature of the county clerk; the ballot shall contain no caption or other indorsement except as in this section provided.” In distributing the ballots, those printed for the republican party were transposed so that the votes indorsed with the number of the first district in certain towns were sent to the second, and those with the second to the first, and such transpositions occurred in four towns and in nine election precincts. The twenty-ninth section of the New York act provided :

“No inspector of election shall deposit in the ballot box on election day any ballot which is not properly endorsed and numbered, except in the cases provided for in section 21 of this act, nor shall any inspector of election deposit in the ballot box or permit any other person to deposit therein on election day any ballot that is torn, or that has any other distinguishing mark on the outside thereof."

It seems that separate tickets are printed there for each political party, instead of printing all the names on one ballot. In deciding the case court lays much stress on the fact that the republican ballots, being indorsed with the wrong number, had distinguishing marks by which they could be identified, and that the secrecy of the ballot was thereby destroyed, and also on the positive requirements of the law, that no ballot should be deposited unless properly indorsed and numbered. In the case of The State v. McKinnon, 8 Ore. 493, a ballot was rejected written on colored paper, the law requiring it to be on plain white paper. We should have no hesitancy in saying that a single ballot printed on colored paper, where the official ballots printed on white paper were being used by other electors, could not be counted. In that case it would be plain that the object of the law was contravened.

We have examined the numerous cases cited by counsel for the plaintiff, and from them deduce two rules, which seem to be steadily adhered to by the courts: (1) That, under laws similar to our own, designed to preserve the secrecy of the ballot, any mark or distinguishing feature apparent on the ballot renders it void. (2) Where the law is explicit in prohibiting the counting of any ballot which does not conform to the requirements of the statutes, that the courts will enforce the law as it reads, without interposing their own judgment as to the reasonableness or unreasonableness of the requirements.

It will be observed that the law nowhere explicitly provides that a ballot printed on paper of a color other than white shall not be counted. The only clause which could be held to imply such a provision is, that "none but ballots provided in accordance with the provisions of this act shall be counted.” Among the requirements of the act, which are very minute, is one that the official ballots shall be put up in separate lots, packages of 50 ballots each, with certain marks on the outside. Will it be contended that an error in counting the ballots within any package, or in marking or addressing the packages intended for any person, would vitiate the election! The departure from the law in matters which the legislature has not declared of vital importance must be substantial, in order to vitiate the ballots. This appears to be the general current of all the authorities.

Without proceeding to review at greater length the authorities cited by counsel on both sides of the question, we conclude that the mere fact that the paper on which all the ballots used in one election district was of a color other than white, where the ballots were not only printed by the authorities designated by law, and by them furnished to the judges of election, but were furnished by the judges to the voters, and were the only ballots furnished to or used by any voter at that voting place, is not sufficient to prevent the counting of the votes. The secrecy of the ballot has been in no wise impaired; the voters themselves have manifested no disposition to disregard the law, and it may be fairly inferred that the use of the colored ballots was an honest mistake on the

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part of the judges of the election. Had a part of the ballots been white and a part colored, so as to afford some grounds for identification of the votes cast by the individual voters, a different question would be presented. We reach the conclusion that the law has not been substantially infringed, because we are unable to see how the purposes of the act can have been impaired in any degree by the mistake made in using the colored ballots. By this decision we do not intend to say that any of the provisions of the law may be disregarded, or that any officer may escape liability to punishment for violating any of its provisions.

All the Justices concurring.

As to what marks will invalidate ballots as affording means of identification see monographic note in 49 American State Reports, 240.

PAGE V. KUYKENDALL.

Supreme Court of Illinois. May, 1896.

161 Ill. 319.

Mr. Justice CARTER delivered the opinion of the court.

Of the sixty-three ballots contained in the record as having been cast at the election in question for school directors all were rejected by the trial court in the contest proceeding but nine, and these nine being for the contestants, the contestants were declared elected. The appeal is prosecuted by Page alone. We are therefore to consider only whether Page or Kuykendall received the greater number of votes cast for the office in question at said election.

The thirty-one ballots containing nothing but the two names, thus, "S. Page, W. D. Rollings," and two others similar in form, were clearly insufficient to express the intention of the voter. Appellant contends that as the only office to be filled at this election was school director it was not necessary that the office should be designated on the ballot to make the intention of the voter clear. It is plain, however, that if this contention were conceded, notwithstanding the statute requires such designation, it is still wholly uncertain which of the two persons whose names are on the ballot the elector intended to vote for for the long term and which for the short term. This choice could be determined only by the voter himself as expressed by his ballot, and when the ballot wholly fails

to express the choice it is void and cannot be counted. Chamberlain v. Hartley, 25 Atl. Rep. (Pa.) 572; Gilliland's Appeal, 96 Pa. St. 224.

There were eleven of the rejected ballots which contained the title of the office above the names, but were equally as uncertain as those above mentioned and in the same respect. We are of opinion that the county court did not err in refusing to count these ballots.

There were, however, ten other ballots rejected by the court concerning which a more serious question arises.

Counsel for appellee insist that these ten ballots also are fatally defective because the title to the office is not designated on them, and because, as they contain two names, it is impossible to ascertain the intention of the voter as to whether he intended to vote for both for the long term or not, or what his intention really was. It is plain that where there are more offices than one to be voted for, ballots making no designation of the office will be insufficient for uncertainty, and where there are two officers to be elected for different terms, ballots which do not designate the terms should be rejected. 6 Am. & Eng. Ency. of Law 345. It is, however, the general rule that the voter shall not be disfranchised or deprived of his right to vote through mere inadvertence, mistake or ignorance, if an honest intention can be ascertained from his ballot Parker v. Orr, 158 Ill. 609, and the circumstances surrounding the election may be considered in ascertaining the voter's intention or to explain imperfections in the ballots, Behrensmeyer v. Kreitz, 135 Ill. 591; McKinnon v. People, 110 id. 305. This election was only for school directors. It was ordered for that purpose alone, This is fully shown by the pleadings and the evidence, and it cannot be said, we think, that there is any uncertainty as to these ten ballots having been cast for school directors, or at least for a school director. Besides, it is apparent from the ballots themselves that there was an attempt on the part of the voter to comply with the statute and to designate the office, for, after the name of S. Page, and on the same line, are written the words, “long

The only officers to be elected were two school directors, one for the long or full term of three years, and one for the short term, to fill the vacancy.

Had there been no other name on these ballots than that of Page, we think no doubt could arise that it was the intention of the voters casting these ballots to vote for Page for the office of school director for the full term. We think,

term.'

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