Dickerman v. Gelsthorpe

• Decision Date: 01 March 1897
• Citation: 19 Mont. 249
• Parties: DICKERMAN v. GELSTHORPE.
• Court: Montana Supreme Court

19 Mont. 249

DICKERMAN

v.GELSTHORPE.

Supreme Court of Montana.

March 1, 1897.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Proceeding by A. E. Dickerman against W. H. Gelsthorpe to contest an election. Judgment for contestant. Contestee appeals. Reversed.

This was a proceeding instituted under the provisions of title 2, pt. 3, of the Code of Civil Procedure of Montana, to contest an election to the office of county treasurer of Cascade county. At the election held November 3, 1896, Dickerman was a candidate for the office on the Republican and Silver Republican tickets. Gelsthorpe ran on the Democratic and People's party tickets. The official returns as canvassed showed that Gelsthorpe had received 48 votes more than his rival. Upon the trial the district court found that 72 ballots had been erroneously counted for Gelsthorpe. Each of these 72 ballots was marked with a cross in the circle either under the designation “Democratic” or “People's Party,” and contained a cross opposite the name of Hartman, the candidate for representative in congress, whose name appeared in the “Silver Republican” column. Neither the Democratic nor the People's party had a candidate for congress, and there was a blank in their respective columns for that office. Exception was saved to the rejection of said ballots. The lower court, over the objection of the contestant, Dickerman, counted for Gelsthorpe 66 ballots marked as follows: with a cross in the circle under the “Democratic” or “People's Party” designation, and with a cross or crosses opposite the names of some candidate or candidates other than Gelsthorpe's in the same list under the crossed circles. The lower court also refused to count for Dickerman eight ballots marked with a cross in the circle under either the Republican or Silver Republican columns, and with a cross opposite the names of candidates other than Gelsthorpe in the Democratic and People's party list. Dickerman was declared to have been elected by 14 votes. If Dickerman had been allowed the 8 votes aforesaid, and Gelsthorpe the 72 votes mentioned, Gelsthorpe's majority would have been 50 votes. Judgment was rendered for the contestant, Dickerman. The contestee, Gelsthorpe, has appealed therefrom.

The sections of the statutes under which the questions involved in the appeal must be decided, are as follows:

Section 1354 (Pol. Code; Codes 1895): “Ballots prepared under the provisions of this chapter must be white in color and of a good quality of printed paper, and the names must be printed thereon in black ink. The ballots used in any one county must be uniform in size, and every ballot must contain the names of every candidate whose nomination for any special office specified in the ballot has been certified or filed according to the provisions of this title, and no other names. The list of candidates of the several parties shall be placed in separate columns on the ballot, in such order as the authorities charged with the printing of the ballots shall decide. As near as possible the ballot shall be in the following form:

And continuing in like manner as to all candidates to be voted for at such election. Every ballot must also contain the name of the party or principle which the candidates represent, as contained in the certificates of nomination. Below the names of candidates for each office there must be left a blank space large enough to contain as many written names of candidates as there are persons to be elected. There must be a margin on each side of at least half an inch in width, and a reasonable space between the names printed thereon, so that the voter may clearly indicate, in the way hereinafter provided, the candidate or candidates for whom he wishes to cast his ballot. Whenever the secretary of state has duly certified to the county clerk any question to be submitted to the vote of the people, the county clerk must print in the regular ballot, in such form as will enable the electors to vote upon the question so presented in the manner in this title provided. The county clerk must also prepare the necessary ballots whenever any question is required by law to be submitted to the electors of any locality, and any of the electors of the state generally, except that as to all questions submitted to the electors of a municipal corporation alone, the city clerk must prepare the necessary ballots. The elector if he shall so desire, may vote his straight party ticket by making a cross within the circle at the head of the list representing his party.”

Section 1361: “On receipt of his ballot the elector must forthwith, without leaving the polling place and within the guarded rail provided, and alone, retire to one of the places, booths or compartments, if such are provided, and prepare his ballot. If he shall desire to vote a straight party ticket, he may do so by making a cross at the head of the list representing his political party. If he shall desire to vote for any candidate or candidates on any other list, he shall make a cross opposite the name of every candidate for whom he desires to vote; in case of a ballot containing a constitutional amendment, or other question to be submitted to the vote of the people, by marking an X opposite the answer of the question or amendment submitted. The elector may write in blank spaces, or paste over any other name, the name of any person for whom he wishes to vote. In marking a ballot, any elector is at liberty to use or copy any unofficial, sample ballot which he may choose to mark, or have marked, before entering the compartment or booth, but no elector is at liberty to use, or bring into the polling place, any unofficial, sample ballot printed in the exact style, manner, width or character of paper of the official ballot. After preparing his ballot the elector must fold it so that the face of the ballot will be concealed, and so that the endorsement stamped thereon may be seen. He must then vote forthwith, and before leaving the polling place.”

Section 1403: “In the canvass of the vote any ballot which is not endorsed, as provided in this title, by the official stamp, is void and must not be counted, and any ballot or parts of a ballot from which it is impossible to determine the elector's choice, is void and must not be counted; if part of a ballot is sufficiently plain to gather therefrom the elector's intention, it is the duty of the judges of election to count such part.”

Stanton & Stanton and Pigott & Veasey, for appellant.

Ransom Cooper, Carpenter & Carpenter, and Jas. W. Freeman, for respondent.

BUCK, J. (after stating the facts).

Counsel for respondent construe section 1361 in connection with section 1354 of the Political Code, as follows:

“How to Prepare Ballots. The law does not allow a voter in any case to erase any names on his ballot. The law requires voting to be by the X–mark. First, on receipt of his ballot, the elector must forthwith and alone retire to one of the compartments, and prepare his ballot as follows:

“How to Vote a Straight Ticket. (1) If the voter shall desire to vote a straight party ticket, he may do so by making a cross in the circle at the head of the list representing his political party. No other marks are necessary in such a case. Or (2) he may omit the cross in the circle at the head of the ticket, and make a cross opposite the name of each and every person on his party list for whom he desires to vote.

“How to Vote a Mixed Ticket. Omit the cross in the circle at the head of any list, and make a cross opposite the name of each and every person on any list for whom the voter desires to vote.

“How to Vote Where no Candidate's Name is Printed. If no name of a candidate appears on his political list,—as, for instance, if no candidate for congressman is printed on a party list,—the voter may vote for a person for any such office as follows: (1) He may paste the name of the person for whom he desires to vote in the blank space left for the candidate's name in such list, and always in such case must make a cross opposite such pasted name; or (2) he may write the name of the person for whom he desires to vote in the blank space left for the candidate's name in such list, and always in such case must make a cross opposite such written name.”

The foregoing interpretation of the manner in which a voter should prepare the form of his ballot under said sections 1354 and 1361 is substantially correct. It is insisted, however, in behalf of respondent, that the provisions of section 1361 as to the manner in which a voter shall mark his ballot are mandatory, and that section 1403 does not justify or contemplate any other construction. Counsel for respondent ask, “What was the true purpose of section 1403?” and, answering, say: “It was this: When a voter has made an honest attempt to comply with the law, and has gone far enough to show his intention to comply with the law, in marking his ballot, then the aid of section 1403 may be invoked; as, for example, when the voter attempts to make a cross, and makes not a perfect one, *** and when the voter does not get his cross directly opposite the name of the candidate, but a little above or below. *** An intent expressed in a way not authorized by the law is not expressed at all. *** Section 1403 does not impose any additional duty upon judges of election or courts. If that section was entirely stricken from the statute books, the same duty rests upon those officers of the law [judges of election]. It would still be their duty to count any part of the ballot which expresses the intention of the voter in the way and manner the law directs it to be expressed, and no less a duty to refuse to count it when such intention is not so expressed.” All this line of argument is controverted by counsel for appellant, who insist that section 1403 serves a much broader purpose, and that the provisions as to how ballots should be marked contained in section 1361 (...