Ellis v. Glaser

• Decision Date: 07 November 1894
• Citation: 102 Mich. 396,102 Mich. 405,61 N.W. 648
• Court: Michigan Supreme Court
• Parties: ELLIS, ATTY. GEN., EX REL. SCOTT v. GLASER.

61 N.W. 648

102 Mich. 396, 102 Mich. 405

ELLIS, ATTY. GEN., EX REL. SCOTT v. GLASER.

Supreme Court of Michigan

November 7, 1894

Information in the nature of quo warranto by the attorney general, on the relation of James A. Scott, to determine the right of Charles Glaser to the office of comptroller of the city of West Bay City, Mich. Judgment for relator.

Though under the election law of 1891, the board of election inspectors is required immediately on closing of polls to proceed to canvass the votes and after the count has been completed, immediately and publicly to declare the result the neglect of the board to complete the canvass on the night of the election and the dating of their report on the next day ought not to result in the disfranchisement of the voters.

A. A. Ellis, Atty. Gen. (Hatch & Cooley and T. A E. & J. C. Weadock, of counsel), for relator.

G. H. Francis (Pratt, Van Kleeck & Gilbert, of counsel), for respondent.

MONTGOMERY J.

This is a contest over the office of comptroller of West Bay City. A recount was had under the provisions of Act 208 of the Laws of 1887. Upon the recount as made by the common council, the respondent received a majority of 14. There were cast for the relator 1,169 votes which were undisputed, and for the respondent 1,147 votes which were undisputed. There were counted for the respondent an additional 40 votes which it is claimed by the relator should not have been counted, and there were counted for the relator 6 additional votes which it is claimed by the respondent should not have been counted for him. The respondent contends that the votes of the First ward should not have been counted for either candidate, as the certificate of the inspectors of election bears date the 4th day of April. Section 36 of Act No. 190 of the Laws of 1891 provides that "immediately on closing the polls the board shall proceed to canvass the votes"; and section 38 provides that, "after the count of the tickets or ballots has been completed, the result shall be immediately publicly declared." The board did not in fact complete the canvass on the night of the election, but the return bears date the next day. We do not think the delay in canvassing the vote should result in disfranchisement of the voters. It would be a dangerous rule to establish that the board of election inspectors could thwart the will of the voters by a neglect to perform the duty imposed upon them by statute, except where the plain provisions of the statute require it. See McCrary, Elect. �� 190, 193, 247, and cases cited. It becomes necessary, therefore, to determine whether the ballots which were counted on the recount by the common council should have been canvassed. It is claimed by the relator that the 40 ballots which the respondent claims should have been counted for him, and which were in fact counted by the common council, bear distinguishing marks, within the meaning of the law, and should have been excluded.

Act No. 190 of the Laws of 1891 was in force when the election in question was held, and the material provisions of that act were as follows: "Any elector may mark or stamp a cross in the space below the party name, printed at the head of the ballot. If marked thus, such ballot shall be counted for all the nominees of such party whose names appear on the ballot in that column. If the voter shall have erased some name in the column, or marked a cross before the name of a candidate in some other column for the same office, or written in a name under the name of any candidate, the name of such candidate shall not be counted as voted for by such ballot, but if the name of the candidate shall have been erased, such vote shall be counted for the candidate whose name in another column shall have been marked or whose name shall be written under the name erased." Section 36 contains the provision that "any ballot which shall bear any distinguishing mark or mutilation shall be void, and shall not be counted, and any ballot or part of a ballot from which it is impossible to determine the elector's choice of candidates shall be void as to the candidate or candidates thereby affected." These provisions have never been before the court for construction. Statutes containing similar provisions have been adopted in various states of the Union, and have generally been construed as involving a radical departure from the former method of voting, and, generally, a strict compliance with the requirements of such statutes has been required before the vote should be counted. In Rhode Island the statute provides "that the elector shall prepare his ballot by marking in the appropriate margin or place a cross opposite the name of the candidate of his choice for each office to be filled," and also that "each ballot shall be so printed as to give each voter a clear opportunity to designate by a cross mark in a sufficient margin at the right of the name of each candidate, his choice of candidates." Pub. Laws R.I. 1889, c. 731, �� 6, 18. This act was construed by the supreme court, and it was held-First, that, as the statute did not require a square to be printed on the ballot, a designation by a cross at the right of the name of the candidate was sufficient; second, that no other mark than a cross was a sufficient designation of the voter's intent under the statute. The court said: "If another mark be used, there is nothing to certify its meaning. It might be conjectured that it was used inadvertently instead of a cross, but, in our opinion, such a conjecture would not justify the counting of it. The statute declares that 'no voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him.' If marks other than crosses were counted, they might be used both to answer the purpose of crosses and to identify the ballots." It was further held that the cross, to be effectual as a vote, must be placed at the right of a name printed on the ballot, and that a cross placed elsewhere was not a compliance with the statute. In re Vote Marks, 17 R.I. 812, 21 A. 962. The statute of Indiana provided that the voter should "indicate the candidates for whom he desired to vote by stamping the square immediately preceding their names: *** provided, however, that if he shall desire to vote for all candidates of one party, *** and none other, he may place the stamp on the square preceding the title under which the candidates of such party *** are printed, and the vote shall then be counted for all the candidates under that title, unless the name of one or more candidates under another title shall also be stamped, in which case the names of the candidates so stamped shall be counted." Laws Ind. 1889, c. 87, � 45. The court held, first, that, in order that the elector may have his ballot counted at all, he must touch some one of the squares with the stamp; that his choice should be indicated in no other manner; that the elector cannot stamp his ballot elsewhere, and leave the election board to guess at his intention. After the election was held which was under consideration in that case, the law was amended so as to provide that "a stamp placed upon a ballot which does not touch a square thereon is declared to be a distinguishing mark, and the ballot is not counted." Laws Ind. 1891, c. 94, � 13. The court say that "this amendment was intended to make certain that which prior to its passage was left, in some measure, to construction, but it only makes certain that which was intended by the legislature when it passed the original section." Parvin v. Wimberg, 130 Ind. 561, 30 N.E. 790. See, also, Sego v. Stoddard (Ind. Sup.) 36 N.E. 204. In Maine the statute provides that "the voter shall prepare his ballot by marking in the appropriate margin or place a (X) as follows: He may place such mark opposite the name of a party or political designation; or he may place such mark opposite the name of the individual candidates of his choice for each office to be filled." Acts Me. 1891, c. 102, � 24. The court say of this statute that "its distinguishing feature was its careful provision for a secret ballot. The leading purpose of it was to give the elector an opportunity to cast his vote in such a manner that no other person would know for what candidate he voted, and thus to protect him against all improper influences, and enable him to enjoy absolute freedom from restraint and entire independence in the expression of his choice." It was held that the ballot could not be counted when the cross was placed to the left, or midway above or below the name of the party or candidate, and not in the appropriate blank space at the right, or where the ballot mark was a straight line instead of a cross. It was said: "If it be conceded that the intention of the voter may be correctly inferred from the mark actually made by him in each of these instances, it is still a fatal objection to the ballot that such an irregular and unauthorized mode of marking it might readily be, and probably would be, agreed upon with the voter as a distinguishing mark to identify the ballot cast by him, whenever identification was desired. Such a palpable disregard of the plain requirements of the act strikes at the root of the secret-ballot system." Curran v. Clayton, 29 A. 930, 86 Me. 42.

These cases support what we believe to be the true rule, that any mark upon a ballot, other than one appropriate and necessary under the law to designate the intention of the voter, must be regarded as a distinguishing mark. Any other rule would result in endless confusion, and would make the local inspectors judges of the voter's intention, and lead to bitter controversies. It was the evident purpose of the legislature to provide against the necessity for this by...