Pennington v. Hare

START, C. J.

At a city election held in the city of St. Paul on May 1, 1894, under the provisions of Laws 1893, c. 4 (G. S. 1894, §§ 6-205, the parties hereto were rival candidates for the office of alderman of the Sixth ward. The canvassing board declared the respondent elected, and appellant appealed to the district court of Ramsey county, where the matter was heard, and judgment entered for the respondent, from which the appellant appealed to this court.

1. In the Eighth precinct of the ward, 93 ballots were cast and counted for the appellant, and 42 for the respondent, which had been numbered, without the knowledge of the electors casting them, by the judges of election, by reason of a misunderstanding of the law on their part. These ballots were properly counted for the respective parties. To hold otherwise would place it in the power of the election officers to disfranchise electors at their pleasure. State v. Gay, 59 Minn. 6, 60 N. W. 676. Including these ballots, the respondent received 1,018 undisputed votes, and the appellant 1,013 like votes. In addition to the undisputed ballots, the district court counted 12 supposed votes for the respondent, which that number of electors, who were prevented from voting at the election by reason of an erroneous ruling of the judges thereof, said they had intended to have cast for him. There were also 16 actual ballots which were disputed, 12 of them are designated in the record as Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, A, B, and C, and the other four as Exhibits G, H, I, and J. The four were marked by each elector writing his name on the back of his ballot.

2. The court found as a fact, with reference to the 12 supposed votes, that 12 qualified electors of the Second precinct entered the polling booth with the intention of voting for the respondent, but by *148 an erroneous decision of the judges they were not permitted to vote; that they were not prevented from voting by fraud or intimidation. If these electors had been prevented from voting by fraud or violence, it might and probably would have been the duty of the court to have rejected the entire vote of the precinct, or declared the election void, as justice might require. It is not necessary to decide this point, for the record presents the simple question, can votes not cast, because of an error of judgment on the part of the election officers, be counted as if cast and returned? We are clearly of the opinion that they cannot be. Where a ballot has been marked by the elector, properly cast, and returned, we have something tangible and certain to deal with, and from it we unerringly read the intention and act of the elector. But where, as in this case, the supposed ballot» were never in existence, and we must rely upon the subsequent declarations of the electors as to how they intended to and would have marked and cast their ballots, if they had voted, it would be an uncertain and dangerous experiment to attempt the task of ascertaining and giving effect to their intentions, as ballot» actually cast and returned. Uncertain, because it would be simply a matter of speculation; dangerous, because it would give to such electors the power of determining the result of an election, in a close-contest. All that it would be necessary for them to do, in such a case, to decide the election, would be to declare that they intended to vote for a particular candidate. It would enable them to sell the office to the candidate offering the highest price for it, because they would not be called upon for their declaration until a contest arose, after the actual ballots had been counted, and the precise effect of their statement known. They could swear falsely as to their past intentions, without fear of punishment, for how would it be possible to disprove their statements as to their intentions with reference to a supposed act, if perchance they had acted? Cooley, Const. Lim. 781. It seems a hardship that an elector should lose his vote by reason of an error of the election judges, but errors of judgment are inevitable; and, whenever any possible remedy which can be suggested is inconsistent with the highest public interests, they areremediless. The proposition that the title to a public office can be made dependent upon the subsequent statements of an elector as to-what he would have done, if he had been permitted to vote, is not. *149 only contrary to sound public policy, but seems to be simply unthinkable.

3. Exhibits 1 and 2 were not counted by the district court for either party, for the reason, as the court found, that the name of the appellánt was not marked by a cross mark, while other names on the same ballot were so marked. Laws 1893, c. 4, § 136, subsec. 7 (G. S. 1894, § 141, subsec. 7). This section provides that if any elector, marking his ballot, shall use any mark clearly indicating an intent to mark against the name of any candidate, it shall be a sufficient vote for the candidate, provided the cross mark is not used elsewhere on the ballot. The evident purpose of the proviso is to prevent the elector from placing upon his ballot any distinguishing mark, whereby it may be certified to others how he voted. A ballot so marked cannot be counted; otherwise, a corrupt candidate might, by previous agreement, arrange with his purchased creatures to place a particular mark after his name, whereby he could ascertain, when the ballots were canvassed, that they had kept faith with him, and were entitled to the purchase price of their honor. The statute does not, however, prescribe any inflexible rule as to what shall or shall not be accepted as a cross mark, and any mark, however crude and imperfect in form, if it is apparent that it was honestly intended as a cross mark, and for nothing else, must be given effect as such; otherwise, electors unaccustomed to the use of pen or pencil might be disfranchised. An examination of Exhibits 1 and 2 discloses the fact that each of them was marked with a cross, within this rule, and they must be counted for the appellant. Exhibits 3, 7, and 9 were all correctly counted for the appellant by the court. Exhibits 4, 6, and 8 were not counted for either party, and correctly so, for each of them was marked for two candidates for alderman, with no attempt to erase either mark. Exhibit 5 was rejected by the court as a spoiled ballot, which was never actually cast. It had a cross mark opposite the name of the appellant. There is evidence in the record to sustain the finding of the court, and the ballot was properly rejected. Exhibit A was properly counted for the respondent. There was a cross after the name of another candidate for alderman, as wrell as one after the respondent’s name, but there was a clear attempt to erase the former. Exhibits B and C were not counted for either party. The first had a cross mark equally near *150 to the name of two candidates for alderman, and the second a like mark opposite the names of two such candidates, with no attempt to erase either. The ruling was correct.

' 4. The district court found that Exhibits G-, H, I, and J, three of which were marked and cast for appellant, and one for the respondent, were marked for identification, by each elector writing his name upon the back of his ballot; and it rejected them from the count, as ballots identified, divulged, and shown, contrary to law. This finding of fact is sustained by the evidence. Were these ballots legally rejected? Section 105 of the election law (G. S. 1894, § 110) provides that no voter shall divulge to any one within the polling place the name of any candidate for whom he intends to vote, or has voted. If any elector (except as provided for disabled and illiterate voters), after having marked his ballot, show it to any one, the judges of election shall refuse to receive or place the same in the ballot box; and, fif such showing was clearly intentional, no other ballot shall be delivered to such elector. It is to be observed that the prohibitions of this section relate to the personal conduct of the elector. There is a clear distinction between the provisions and prohibitions in election laws which are personal to the elector, which, if he violates them, it is his own fault, and those which apply to elective officers, over whose conduct he has no control. In the former case they are to be construed as mandatory, as a general rule, and his vote will be rejected if he intentionally fails to comply with them, while in the latter case they are to be construed as directory, unless otherwise expressly, or by necessary implication, so declared by statute. This distinction is illustrated by the decision of this court in the case of State v. Gay, where it was held that the provisions of the statute that the elector must make oath to his disability or illiteracy before he can have the assistance of another in marking his ballot was mandatory, but the provision prohibiting the judge of election from marking more than three ballots was held directory, where the electors had no knowledge that the judges had marked more than the limited number.

Clearly, if the electors casting the ballots in question intended to, and did, by writing their names on the backs of their ballots, identify them, they violated the provisions of this section, and their ballots could not have been legally placed in the ballot *151 box, or, if placed there, could not have been legally counted. If, after marking their ballots with the cross mark, these electors had intentionally opened them, and showed any of the election officers how they had voted, it would have been a clear violation of the statute, and their ballots would have been rejected. The prohibition is not directed against the form and manner of divulging how the elector voted, or how he showed his ballot, after cross-marking it, to any one, but against the act itself. Now these electors, in substance and effect, divulged within the polling place for whom they had voted, and showed their ballots, after marking them, by writing their names upon them for identification. When the votes were canvassed within the polling place, the judges, clerks, and others engaged in or observing the canvass were informed, by the signatures of the electors on their ballots, just how and for whom they had voted; and the divulging and showing, which had their beginning when the electors wrote their names on the ballots, were then completed, and became effectual.

It is urged, as a reason why this view of the statute should not be accepted, that secrecy of the ballot is the personal privilege of the elector, which he may waive. This is true only where considerations of public policy, as declared by the legislature, do not forbid such disclosure. The prohibitions of this statute were intended to prevent the identification of a particular ballot as the one cast by a particular elector, whereby the traffic in votes might be facilitated. They rest upon the same considerations of public policy as the proviso in subsection 7 of section 136 (G. S. 1894, § 141, subsec. 7), already referred to. There could be no more certain and effectdal way of identifying the elector’s ballot than by his writing his name on the back thereof. The fact that illiterate voters may disclose, to a limited extent, how they voted is no reason why electors who can mark .their own ballots should not be prohibited from showing them, under penalty of having them rejected, for in the former case it is a necessity. It is true, as urged by counsel for appellant, that the law has left open many other ways whereby the ballots may be identified; but this furnishes no reason why the court should open, by a construction of the statute, those closed by the legislature. Exhibits Gr, H, I, and J were properly rejected from the count.

5. From the foregoing conclusions, the result is reached that the *152 appellant received 1,018 legal votes, and the respondent 1,019 legal votes, and that he was duly elected alderman for the Sixth ward of ihe city of St. Paul.

Judgment affirmed.