Fullarton v. McCaffrey
Decision Date | 29 June 1916 |
Docket Number | No. 31108.,31108. |
Citation | 177 Iowa 64,158 N.W. 506 |
Parties | FULLARTON v. MCCAFFREY. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dubuque County; Robert Bonson, Judge.
Contestant was an independent candidate for the office of coroner of Dubuque county at the general election of 1914, and the incumbent the regularly nominated candidate on the Democratic ticket. The latter was declared elected by the board of supervisors, whereupon a contest was instituted and the incumbent declared elected by the court of contest. Contestant appealed to the district court, which, on hearing, found the incumbent to have been elected. Contestant appeals. Reversed.Hurd, Lenehan & Kiesel, of Dubuque, for appellant.
Nelson & Duffy, of Dubuque, for appellee.
The parties hereto were rival candidates for the office of coroner of Dubuque county. Four candidates contested for the Democratic nomination at the primary, but no one received 35 per cent. of the vote cast. McCaffrey was nominated at the county convention, and Fullarton became an independent candidate, having his name put on the ballot by petition. In the 34 precincts, 3,999 ballots were marked for McCaffrey and 3,848 for Fullarton. None of these are in dispute. Besides these there were 203 ballots. Of these the contestant offered 188 in evidence. To each of these incumbent objected, for that “it contained marks of identification, erasures, is defaced, and shows marks in squares opposite more than one name for coroner. Five ballots were offered in evidence by the incumbent to which various objections were interposed, and ten ballots were not offered by either party. By stipulation the original ballots in dispute have been certified to this court for inspection. Two questions are involved: (1) Whether crosses appeared in more than one square before a candidate for coroner; and (2) whether any of the ballots bore identifying marks. Before passing on these objections to the several ballots the statutes bearing thereon may as well be referred to. Under the Australian ballot system the elector is provided with a ballot by one of the judges of election, and he can make use of no other, and this he prepares--
“by placing a cross in the square opposite the name of each candidate for whom he desires to vote.” Section 1119, Code Supp. 1913.
Section 1120, Code Supp.
“Any voter who shall spoil his ballot may, on returning the same to the judges, receive another in place thereof, but no voter shall receive more than 3 ballots, including the one first delivered to him.” Section 1121, Code Supp.
[1] The Attorney General is required by section 1111 of the Code to prepare a card of instructions, and copies of this are caused to be printed and posted in the several voting precincts of the state. These, it seems needless to say, do not supersede the statutes, but are intended to guide the voter, and especially to enable him to avoid any mistake in expressing his choice, and prevent him from loading his ballot with identifying marks. Thus in the “Card of Instructions” issued voters were warned that, “Any erasure or identification marks, or otherwise spoiling or defacing a ballot will render it invalid,” and directed what to do in such event. Of course this is not correct in all cases, but the voter is not ordinarily well enough informed to say what will be deemed an identifying mark, and the only safe course for him to pursue is to surrender such a ballot and avoid any chance of having his vote rejected. But whether any of these as they appear on the ballot constitute an identifying mark is not to be determined from the card of instructions, and the card had no place in the evidence.
[2][3] The ballots necessarily are the only evidence of what was intended by anything placed thereon by the voter and it is often difficult to determine whether any particular mark was designed or might be used for identification as the ballot of the person casting it. As said in Whittam v. Zahorik. 91 Iowa, 23, 59 N. W. 57, 51 Am. St. Rep. 317:
In Voorhees v. Arnold, 108 Iowa, 77, 78 N. W. 795, speaking for the court, Granger, J., said:
In Kelso v. Wright, 110 Iowa, 560, 81 N. W. 805, it was observed that:
“What constitutes an identifying mark upon a ballot is generally a question of fact for the trial court, and its finding, or the finding of a jury, if the case is submitted to a jury, is conclusive on appeal.”
See, also, Morrison v. Pepperman, 112 Iowa, 471, 84 N. W. 522;Spurrier v. McLennan, 115 Iowa, 461, 88 N. W. 1062.
[4] The distinguishing mark prohibited by law is one which will enable a person to single out and separate the ballot from others cast at the election. It is something done to the ballot by the elector designedly and for the purpose of indicating who cast it, thereby evading the law insuring the secrecy of the ballot. In order to reject it the court should be able to say, from the appearance of the ballot itself, that the voter likely changed it from its condition when handed him by the judges of election, otherwise than as authorized, for the purpose of enabling another to distinguish it from others. The law does not contemplate that the elector will see his ballot after being cast. The design of the Australian Ballot Law is not only to free the voter from intimidation by making his way of voting known only to himself, but to close the door securely against making merchandise of his vote as nearly as human ingenuity can. As said in Sego v. Stoddard, 136 Ind. 297, 36 N. E. 204, 22 L. R. A. 468:
...
To continue reading
Request your trial-
Devine v. Wonderlich
...the ballots if they constituted identifying marks within the meaning of § 49.98. This concept is explained in Fullarton v. McCaffrey, 177 Iowa 64, 70-72, 158 N.W. 506, 508 (1916), as The distinguishing mark prohibited by law is one which will enable a person to single out and separate the b......
-
Hanson v. Emanuel
...is considered valid as indicating an attempt to make the mark plainer." 18 Am.Jur., Elections, § 188, note 10. Accord: Fullarton v. McCaffrey, 177 Iowa 64, 158 N.W. 506, and Strosnider v. Turner, 30 Nev. 155, 93 P. 502, 133 Am.St.Rep. 710. The ballot, Exhibit 37, rejected in Pye v. Hanzel, ......
- Fullarton v. McCaffrey
-
Headington v. North Winneshiek Community School Dist., in Winneshiek County
...will enable a person to separate and single out a ballot from others cast at the election. We cited and quoted from Fullarton v. McCaffrey, 177 Iowa 64, 158 N.W. 506. The Fullarton case is probably a landmark for it not only discusses the principles involved but lists marks that identify an......