Howell v. Blackburn

• Decision Date: 24 January 1957
• Docket Number: No. 29417,29417
• Citation: 139 N.E.2d 905,236 Ind. 242
• Parties: Roy HOWELL, Appellant, v. Devon BLACKBURN, Appellee.
• Court: Indiana Supreme Court

Page 905

139 N.E.2d 905

236 Ind. 242

Roy HOWELL, Appellant, v. Devon BLACKBURN, Appellee.

No. 29417.

Supreme Court of Indiana.

Jan. 24, 1957.

Bowers, Feightner & Palmer, Lee M. Bowers, Arthur J. Palmer, James W. Bowers, Huntington, for appellant.

Wm P. Spencer, Frederick M. Mowrer, Huntington, for appellee.

BOBBITT, Judge.

The parties hereto were candidates for the office of Mayor of the City of Huntington in the city election held on Tuesday, November 8, 1955. The City Election Board declared appellant Howell duly elected Mayor of such city and issued a certificate of election to him. A petition for recount ¹ was then filed by appellee-contestor, and Recount Commissioners were duly appointed. After an examination of all the ballots cast for Mayor in such election, the Recount Commissioners found that appellant Howell had received 3,200 votes and appellee Blackburn had received 3,185 votes. Appellee then filed a petition for contest ² in the Huntington Circuit Court alleging as grounds therefor, 'mistake or fraud in the official count of the votes' ³ cast for the office of Mayor of the City of Huntington, Indiana.

From a judgment declaring appellee Blackburn to be duly elected to the office of Mayor of Huntington this appeal is prosecuted.

Appellant assigns as error the overruling of his motion for a new trial. Among the specifications or reasons for a new trial are (1) error of the trial court in counting 101 ballots for appellee-contestor; and (2) in failing to count 86 ballots for appellant-contestee.

Appellee-contestor has assigned cross-errors as follows:

'1. The Court erred in over-ruling the objections of the appellee to, and admitting in evidence and counting, as valid votes for appellant (contestor) the following exhibits offered by the appellant:

'Numbers 30, 44, 50, 54, 66, 140, 147, 149, 153, 194, 219, 224, 255, 312, 317, 441, 452, 475, 516, 520, 525 and 533.

'2. The Court erred in sustaining the objections of the appellant to, and in refusing to admit in evidence and refusing to count the following exhibits as valid votes for the appellee (contestee) offered by the appellee:

'Numbers 5, 11, 127, 128, 157, 163, 164, 176, 241, 242, 243, 295, 379, 466 and 511.'

These exhibits are original ballots; they are properly in the record and this court will examine them to determine whether in our judgment they were properly counted or excluded by the trial court. Lumm v. Simpson, 1935, 207 Ind. 680, 684, 194 N.E. 341.

In the absence of fraud, election statutes generally will be liberally construed to guarantee to the elector an opportunity to freely cast his ballot, to prevent his disfranchisement, and to uphold the will of the electorate. Brown v. Grzeskowiak, 1951, 230 Ind. 110, 128, 101 N.E.2d 639, 102 N.E.2d 372.

The rule by which we are governed in this case was ably stated in Conley v. Hile, 1935, 207 Ind. 488, 499, 193 N.E. 95, 102, and reaffirmed in Dowden v. Benham, 1955, 234 Ind. 103, 109, 123 N.E.2d 872, and is as follows:

"While the statutes seek to keep the voter's ballot secret, so as to prevent corruption in elections, its primary purpose is to provide a means for the selection of officers by the free and untrammeled choice of honest, qualified voters; and, while a ballot which is intentionally mutilated, or on which the making does not occur in the space provided by statute, or which is marked with characters other than those provided by statute, cannot be counted regardless of the apparent honesty and good intention of the voter, ballots will be counted which indicate an effort to comply with the statutory requirement as to the manner of marking, notwithstanding variation from the mark made by the average individual caused by unskillfulness, physical infirmity, bad eyesight, or light, or conditions not conductive to accuracy; and where markings are in the proper place, and there is an effort to make the statutory cross-mark, irregularities in the marking will be attributed to those causes unless the ballot upon its face fairly imports an intentional dishonest purpose."

The statutory rules by which we are also governed and which apply to the situations with which we are here confronted, are as follows:

'Rule 1. The whole ballot is void if the voter * * * (d) makes any mark thereon other than a cross X mark in a voting square or circle, or other than the writing in of a name for the purpose of voting; except that an erasure or a mark other than a cross X mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or question in connection with which it is made. A cross X mark is any straight line crossing any other straight line at any angle, but no ballot shall be declared void or partially blank because a cross X mark thereon is irregular in form. In applying any provision of this section to a primary election, the term 'voting square' shall include the voting space at the left of the name of a candidate on the primary ballot.

* * *

* * *

'Rule 6. If the cross X mark touches a circle or a square, it shall be counted as if in such circle or square, but any mark other than a cross X mark in the circle or square, which touches no circle or square shall be treated as a distinguishing mark.

'Rule 7. Any ballot which shall bear any clearly evidence 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 not be counted as to the candidate, or candidates, affected thereby.' Acts 1947, ch. 156, § 1, p. 481, being § 29-5218, Burns' 1949 Replacement.

Each of the parties hereto raise the question of waiver and estoppel in relation to certain ballots. See: Dobbyn v. Rogers 1948, 225 Ind. 525, 547, 76 N.E.2d 570.

Where a party has successfully offered in the trial court a ballot essentially similar to one, the admission of which he now seeks to prevent, or where he successfully objected in the trial court to the admission of a ballot, essentially similar to one the admission of which he now seeks to effect, he is estopped to urge the admission or exclusion, as the case may be, of the relevant ballot. However, this rule is not applicable where there is a lack of similarity between the defects in the ballots to be compared.

Where the trial court's actions with regard to both the ballot in question and the ballot, or ballots, with which it is sought to be compared, has been assigned as error, or cross-error, and all of such ballots are before us on appeal, the comparison will be made as a matter of course.

The fact that we have mentioned no specific application of this rule in this case may be considered to indicate either, that for the reasons expressed above, the rule of estoppel does not apply, or, that in cases where it does apply and has been properly raised, we have made the comparisons requested, and the results of such comparisons are reflected in the totals of the ballots counted by this court.

Because certain ballots have similar characteristics and since the same general rules must be applied to specific objections thereto, we have separated the contested ballots into certain categories or groups and will consider the errors and cross-errors assigned in that manner.

First, we shall consider errors assigned by appellant as they appear in his motion for a new trial. Appellant has waived objections to the inclusion of all except two of the 101 ballots cast for appellee Blackburn, ⁴ and to the exclusion by the trial court of 21 of the 86 ballots cast for himself. ⁵

Group One. These are ballots which have a 'spur' or 'prong' at the end of one of the lines which form the cross (X). ⁶ Such 'spurs' or 'prongs' which appear to have been deliberately made are distinguishing marks and invalidate the ballot. Rule 7; ⁷ Paragraphs 37, 40, 47, 50, 52 and 59. ⁸

However, if the 'spur' or 'prong' clearly appears to be the result of inadvertence or infirmity, it does not invalidate the ballot. Paragraphs 41, 51 and 55.

The 'spur' or 'prong' on Exhibits numbered 259 and 514 appear to have been made as the pencil was inadvertently lifted in the act of retracing. On such exhibits the 'spurs' do not show a uniform width of line, nor do they indicate a consistent weight application to the pencil such as would indicate a wilful and deliberate marking for the purpose of distinguishing the ballot. Hence, these ballots should have been counted for appellant.

The 'spurs' or 'prongs' on Exhibits numbered 70, 248, 387, 394 and 484 have a certain uniform consistency, both in width and intensity of the lines. They appear to have been deliberately made as distinguishing marks and these ballots wer properly excluded by the trial court.

Group Two. Exhibit numbered 69 is a mixed ballot which bears an extra spurlike line or mark near the center of the upper left segment of the cross.

Exhibit number 247 is a straight ballot which has an extra mark at the intersection of the cross. It is asserted that these marks are merely retracings. However, we do not believe that the extra marks on these ballots are retracings within the rule as stated in Paragraph 44. In our opinion they are distinguishing marks under Rule 7 and Paragraph 4, and these ballots were properly excluded by the trial court.

Group Three. Exhibits numbered 138, 249, 345, 145, 313, 512 and 513 are all straight ballots and were properly excluded. While certain markings on these ballots might conceivably be the result of an attempt to retrace the lines or strokes which form the cross, however, in our opinion, the cross-strokes form two distinct parallel lines so clearly as to render them distinguishing marks which invalidate the ballots. Paragraphs 3, 28, 29 and 35.

Group Four. Exhibits numbered 8, 17, 23, 72, 139, 217, 256, 308, 344, 347, 399, 442 and 485 are straight party ballots and Exhibit number 310 is a mixed ballot, all of which...