Easterbrooks v. Atwood

• Decision Date: 07 May 1910
• Citation: 76 A. 109,83 Vt. 354
• Parties: EASTERBROOKS v. ATWOOD.
• Court: Vermont Supreme Court

76 A. 109

83 Vt. 354

EASTERBROOKS

v. ATWOOD.

Supreme Court of Vermont. St. Johnsbury.

May 7, 1910.

Quo warranto by Don E. Easterbrooks against Hale M. Atwood. Heard on the pleadings and an agreed statement of facts. Petition dismissed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Cook & Norton, for petitioner.

Howe & Hovey, for respondent.

POWERS, J. At the last annual meeting of the town of Lyndon, the parties to this proceeding were rival candidates for the office of lister for a three-year term. As counted and announced, the first ballot resulted in 57 votes for the petitioner and the same number for all others. A second ballot was taken without a choice, and on the third ballot the defendant received a majority of all the votes cast, and was declared elected. On the first ballot, in addition to those included in the announcement of the moderator, there were 13 printed ballots cast, which contained thereon in small type the words "For Road Commissioner," below which, in large black letters, was the name "D. E. Easterbrooks." The only question presented is whether or not these 13 ballots, or any of them, should have been counted for the petitioner for the office of lister.

The facts above set forth are agreed to; and it is further agreed that the petitioner is to have the benefit of so much, if any, of the depositions of U. S. Grant and Henry Gilman as is legally admissible to establish the intent with which the 13 disputed ballots, or some of them, were cast.

So far as the deposition of Gilman is concerned, it may be rejected without special consideration. All that it shows is that he cast one of the 13 ballots, and that he did so at the call of the moderator for votes for lister. But how he happened to use this kind of a ballot, and what he intended by it, are questions left uncertain. Grant's deposition, however, shows that he cast one of the disputed ballots, and inferentially shows that he cast it for the office of lister. He does not directly assert this fact, but we think that it fairly appears from what he does assert that this was his intention. In determining for what person or office a disputed ballot should be counted, the intention of the voter who cast it is the controlling factor. Cooley, Const. Lim. (7th Ed.) 914; State v. Elwood, 12 Wis. 551; McKinnon v. People, 110 Ill. 305. This intention is to be gathered from the ballot itself read in the light of the surrounding circumstances of a public character—extrinsic evidence of which is admissible. Cooley, 919; Gumm v. Hubbard, 97 Mo. 311, 11 S. W. 61, 10 Am. St. Rep. 312, and instructive note; Wimmer v. Eaton, 72 Iowa, 374, 34 N. W. 170, 2 Am. St. Rep. 250; Brown v. McCollum, 76 Iowa, 479, 41 N. W. 197, 14 Am. St. Rep. 228; Atty. Gen. v. Ely, 4 Wis. 420. But the voter's intention must ultimately be found in the ballot itself, and extrinsic evidence is admissible only in aid of the ballot. Therefore it cannot be received when the ballot is too defective to express any intention whatever (Cooley, 919; Page v. Kuykendall, 161 Ill. 319, 43 N. E. 1114, 32 L. R. A. 656), nor is it admissible to contradict the ballot (People v. Seaman, 5 Denio [N. Y.] 409; State v. Steinborn, 92 Wis. 605, 66 N. W. 798. 53 Am. St. Rep. 938; State v. Tierney, 23 Wis. 430; Beardstown v. Virginia, 76 Ill. 34).

It follows from an application of the rule to the case in hand that the petitioner is not entitled to any benefit from the depositions, and that the 13 ballots cannot be counted for him for the office of lister. To permit it to be shown that they were intended for that office would be to allow a direct contradiction of the plain terms of the ballots as cast. This ought not to be, and is not,...