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also, that there being no candidate to be voted for at this election for any office other than that of school directors, the attempted and partial designation of the office on these ballots as to Page was under the circumstances, a sufficient compliance with the statute requiring the title of the office to be written or printed on the ballot, and that the office to which the voter desires each candidate voted for to be elected shall be designated on the ballot. 6 Am. & Eng. Ency. of Law, 344, note 1.
It is claimed, however, that as these ten ballots also contain the name of W. D. Rollings, without any designation of the office to which the voters desired him to be elected to, other than that which followed the name of Page, the ballots should not, under the statute, be counted for either candidate. Section 58 of the statute provides: “If more persons are designated for any office than there are candidates to be elected
such part of the ticket shall not be counted for either of the candidates." In the case of Blankinship v. Israel, 132 Ill. 514, there was but one office and one term to be filled and two names were preceded by the words “For assessor," and this court held that the ballot should not, under the statute, be counted for either candidate. But it cannot be said here the ten ballots in dispute have more names designated for any office than there are candidates to be elected. The office is that of school director. Two candidates were to be elected, one for the long and one for the short term. It is clear these electors intended to vote for Page for the long term, and it may be and probably was intended that the one year term should apply to Rollings, but the ballots failed to make the designation. As Rollings' case is not before us it is unnecessary to construe these ballots as to him, any further than the effect they may have upon the rights of Page. It cannot be said, in view of the form of these ballots and of the fact that two officers were to be elected, that the words “long term” had the same relation to the name of Rollings as to the name of Page, as did the title “For assessor” in Blankinship v. Israel, supra, in respect to the two names in question in that case. In the case at bar there was simply a failure to designate any office to which these electors desired Rollings to be elected, unless, by the designation of Page for the long term, it might be implied that the voter intended to vote for Rollings for the short term,--the only remaining place to be filled; and the latter view should be adopted rather than the one that he intended to vote for both for the long term,-if it were necessary, in the decision of the case, to adopt either view. A construction will not be adopted which would deprive the elector of his vote when his ballot is equally susceptible of another construction which will give it effect. Our conclusion is that these ten ballots should have been counted for Page, and that the county court erred in rejecting them, and in declaring that Kuykendall, and not Page was entitled to the office.
The judgment of the county court is reversed and the case remanded, with directions to dismiss the petition as against Page, at the cost of appellee, Kuykendall.
Reversed and remanded.
4. Powers of Boards of Canvassers.
PEOPLE V. VAN CLEVE.
Supreme Court of Michigan. January, 1850.
1 Mich. 362.
The very ingenious argument of the attorney general seems to me to be based upon the supposition that the determination of the board (of canvassers) was somewhat in the nature of a judgment at law, binding and conclusive, and that it afforded the only evidence of the rights of the contestants for this office; for, from the information, it appears that Elias M. Skinner claims title thereto; and that such judgment must be based and appear to be based upon this statement as the finding of the board, as a judgment at law is rendered upon the finding of the jury. But no such conclusive effect is given by the statute to this determination of the board, nor to the statement of the board, upon which it may properly be said to be founded.
The whole scope of the statute seems to show that this statement is but prima facie evidence; that in every contested election you may go behind it; the county canvass may be corrected by the township canvassers; and that these may be corrected by the ballots themselves. A contested election is not to be decided by what does or does not appear in any of these statements.
The provisions of the statute show that you may go behind all these proceedings—that you may go to the ballots, if not beyond them, in search of proof of the due election of either person, the one holding, or the one claiming the office. And this is as it should be. In a republican government, where the exercise of official power is but a derivative from the people, through the medium of the ballot-box, it would be a monstrous doctrine that would subject the public will and the public voice, thus expressed, to be defeated by either the ignorance or corruption of any board of canvassers.
The duties of these boards are simply ministerial: Their whole duty consists in ascertaining who are elected, and in authenticating and preserving the evidence of such election. It surely cannot be maintained that their omissions or mistakes are to have a controlling influence upon the election itself. It is true that their certificate is the authority upon which the person who receives it enters upon the office, and it is to him prima facie evidence of his title thereto; but it is only prima facie evidence.
The view which I have taken of the effect of the statement of the county board, is fully sustained by the opinion of the supreme court of the state of New York, in the cases of the People v. Ferguson, 8 Cowen 102; and the People v. Vail, 20 Wendell 14.
In the case of the People v. Ferguson, it was held, notwithstanding the determination of the canvassers in favor of the defendant, that the court and jury could look even beyond the ballot boxes, and inquire whether the votes given for H. F. Yates, were not intended by the voters for Henry F. Yates. In the case of the People v. Vail, Justice Bronson, delivering the opinion of the court, said: “The decision of the canvassers was conclusive in every form in which the question could arise, except of that of a direct proceeding by quo warranto, to try the right. But to hold it conclusive in this proceeding, would be nothing less than saying, that the will of the electors, plainly expressed in the forms prescribed by law, may be utterly defeated by the negligence, mistake, or fraud of those who are appointed to register the results of an election."
The demurrer must be overruled, with leave for the attorney general to reply.
HADLEY V. THE MAYOR.
Court of Appeals of New York. September, 1865.
33 N. Y. 603.
DENIO, Ch. J. There being no conclusion of fact found by the judge, the only questions which are open for examination upon this appeal are those which arise upon the exceptions to rulings taken in the course of the trial.
The election for mayor and other officers in 1856 was held on the day appointed by law, the second Tuesday (8th day) of April, and the terms of the newly chosen officers commenced on the first Tuesday of May thereafter. (Laws, 1855, ch. 196, sections, 1, 2, 3.) The law requires the inspectors of election to file a statement and certificate, setting forth the number of votes given for each person for each respective office, with the clerk of the common council, within twenty-four hours after the completion of the canvass, and that "the common council, at its meeting thereafter, shall canvass such returns, and determine and declare the result.' (Laws, 1855, ch. 86, section 11.) The officers chosen are, on or before the time when their terms commence, to take the oath of office prescribed by law. (id., section 12.) The plaintiff had given in evidence a certificate of the determination of the common council at a meeting held on the 15th April, one week after the election. This was at least prima facie evidence of the act of the common council. The document was given in evidence without objection, and it was not attempted to controvert the fact that the proceedings of the council set forth in it had taken place as stated. But the defendant offered to prove another canvass before the common council, at a meeting on the 6th May following.
The evidence was excluded, and this is the point of the first exception. The act does not prescribe that the canvass shall be made at the first meeting of the council after the election, a word having apparently dropped out in transcribing or in printing the section. The meaning, as it stands in the statute book, is, that the canvass shall be made at some meeting of the common council after the election. It was regular and legal to perform that duty at the first meeting, and this was what was done, as stated in the certificate. Having once been legally performed, the power of the council was exhausted. The board had no right to reverse its decision by making a different determination. The court was therefore right in rejecting the evidence which was offered.
The second exception was to the decision by which the court excluded the inspector's returns. The object, I suppose, was to show that the returns elected Mr. Quackenbush and not Mr. Perry. But the law having committed to the common council the duty of canvassing the returns and determining the result of the election from them, and the council having performed that duty and made a determination, the question as to the effect of the returns was not open for a determination by the jury in an action in which the title of the officer came up collaterally. If the question had arisen upon an action in the nature of a quo warranto information, the evidence would have been competent. But it would be intolerable to allow a party affected by the acts of a person claiming to be an officer, to go behind the official determination to prove that such official determination arose out of mistake or fraud.
The defendants' counsel seems to have chosen to place their defense upon the allegation of title in Mr. Quackenbush to the office of mayor, and they raised no question except that which related to the evidence of his election and the validity of his acts. Having failed to sustain their position on these questions, they cannot ask to have judgment against them reversed.
All the judges concurred in affirming the judgment except PORTER, J., who did not sit, having been counsel.
LEWIS V. COMMISSIONERS.
Supreme Court of Kansas. January, 1876.
16 Kan. 102.
BREWER, J. This is an action of mandamus, to compel a correct canvass of the votes cast in the county of Marshall for the office of county clerk. Upon the canvass that was made the canvassers rejected the returns from Waterville township, and declared one J. G. McIntire elected. If those returns had been counted, the plaintiff would have received a majority, and been declared elected. Three questions are presented: First, will the court, after a canvassing board has made one canvass, declared the result, and adjourned, compel it, by mandamus, to reassemble and make a correct canvass on the ground that at the prior canvass it had improperly omitted to canvass all the returns ? Second, if the