Parvin v. Wimberg

• Decision Date: 17 March 1892
• Citation: 30 N.E. 790,130 Ind. 561
• Parties: PARVIN v. WIMBERG et al.
• Court: Indiana Supreme Court

130 Ind. 561

30 N.E. 790

PARVIN

v.WIMBERG et al.

Supreme Court of Indiana.

March 17, 1892.

Appeal from circuit court, Gibson county; GEORGE W. SHAW, Special Judge.

Action by Henry Wimberg and another against James D. Parvin. Judgment for plaintiffs. Defendant appeals. Reversed.

Gilchrist & De Bruler and D. B. Kumler, for appellant. J. E. Williamson, Philip W. Frey, and Jas. T. Walker, for appellees.

COFFEY, J.

At the November election for the year 1890 the appellant and Henry Stockfieth were opposing candidates for the office of county auditor of Vanderburgh county, in this state. The board of canvassers having declared the appellant duly elected, this proceeding was commenced by the appellee Henry Wimberg before the board of commissioners of that county, to contest the election, upon the alleged ground that Stockfieth had received more votes for the office than had been cast for the appellant. The cause was appealed to the Vanderburgh circuit court, from which a change of venue was granted to the Gibson circuit court. In the latter court, issues were formed, upon which the cause was tried by the court, resulting in a judgment against the appellant. At the request of the appellant the court made a special finding of the facts in the case, from which it appears, among other things, that returns of the election were made by the judges of election, and canvassed by the board of canvassers, and that it was determined by the canvass that the appellant had received 4,745 votes, and that Henry Stockfieth had received 4,735 votes, and thereupon the board declared the appellant duly elected. It further appears that the appellant received 27 votes at the election which were not counted for him, and that Stockfieth received 61 votes which were also rejected by the judges of election, and that the number so received by these parties, and not counted, was not included in the votes canvassed by the board of canvassers, and that the total number of votes cast at the election for the appellant was 4,772, and for Stockfieth, 4,796.

The only questions discussed by counsel on this appeal are questions arising on the ruling of the court below in overruling the appellant's motion for a new trial. It is insisted by the appellant that the finding of facts above set out is not sustained by the evidence. It is also urged that the circuit court erred in admitting in evidence certain ballots offered by the appellee to sustain the issue tendered by him. It appears by the record before us that the appellee offered in evidence, on the trial of the cause, certain ballots, none of the squares upon which had been touched by the stamp, which ballots were admitted and read in evidence over the objection of the appellant. As it is perfectly apparent that the court could not have made the finding set out above without counting some of these ballots, the question, therefore, as to whether they were admissible in evidence, and the question as to whetherthe finding is sustained by the evidence, may very properly be considered together. The solution of these questions depends upon the construction of the act of the general assembly approved March 6, 1889, known as the “Election Law.” Section 26 of this act prescribes the following form of ballot to be used at all subsequent general elections, viz.:

Image 1 (1.8" X 4.04") Available for Offline Print

Section 45 of the act provides that “when a voter shall have been passed by the challengers, or shall have been sworn in, he shall be admitted to the election room. *** On entering the room the voter shall announce his name to the poll clerks, who shall register it. The clerk holding the ballots shall deliver to him one state and one local ballot, and the other clerk shall thereupon deliver to him a stamp; and both poll clerks, on request, shall give explanation of the manner of voting. *** The voter shall then, and without leaving the room, go alone into any of the booths which may be unoccupied, and indicate the candidates for whom he desires 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.” It is contended by the appellant that the provision of this statute requiring the voter to indicate his choice by stamping the square is mandatory, while it is contended by the appellee that such provision is directory only, and that the voter may indicate his choice without touching the square with the stamp. It is conceded that this law is an entire departure from the modes of voting known and used in this state prior to its passage. Such being the case, before any election was held under this law the two leading political parties in the state, through the chairmen of their respective state central committees, selected six practicing attorneys of the state, conspicuous for their legal learning, to whom the law was referred, with a request that they would construe and interpret it, and prepare instructions for the information and guidance of the electors and election officers of the state. In the report of these eminent lawyers is found the following instructions, viz.: “ First. You must get your ballots of the polling clerks in the election room. Second. If you want to vote a straight ticket, stamp the square on the left of the name of the party for whose candidates you wish to vote. If you do not wish to vote a straight ticket, then do not stamp the square to the left of the name of your party, but stamp the square to the left of the name of each candidate for whom you desire to vote, on whatever list of candidates it may be. Third. Do not mutilate your ballot or mark it, either by scratching a name off or writing one on, or in any other way, except by stamping on the square or squares as above mentioned; otherwise the ballot will not be counted. *** If a ballot is not stamped on one of the squares at the left of the titles of the tickets, it will be counted for the names with stamps on their squares to the left of them, and no others.” It is fair to presume that the electors and election officers throughout the state accepted this as the true construction of the statute under consideration, and thereupon, in conducting the ensuing election, acted upon it. This construction having been accepted and acted upon by the officers whose duty it was to administer the law, the courts should not now ignore it, unless it is palpably wrong. Stuart v. Laird, 1 Cranch. 299;Martin v. Hunter, 1 Wheat. 304;Cooley v. Board, 12 How. 299;Lithographic Co. v. Sarony, 111 U. S. 53, 4 Sup. Ct. Rep. 279 The construction placed upon the statute by the committee to whom it was referred is not palpably wrong; but, on the contrary, we think the conclusion it reached is the correct one. The doctrine that it is within the power of the legislature to prescribe the manner of holding general elections, and to prescribe the mode in which the electors shall express their choice, is too familiar to call for the citation of authority. In this instance it has declared that the mode by which the elector shall express his choice shall be by stamping certain designated squares on the ballot. There is nothing unreasonable in the requirement, and it is simple and easily understood. Furthermore, if he is illiterate or is in doubt, the law makes ample provision for his aid. If he does not choose to indicate his choice in the manner prescribed by law, he cannot complain if his ballot is not counted. Kirk v. Rhoads, 46 Cal. 399. If we hold this statute to be directory only, and not mandatory, we are left entirely without any fixed rule by which the officers of election are to be guided in counting the ballots. If ballots are to be counted when no square is stamped, at what distance from the square shall the stamp be placed before it can be rejected? One board of election may reach one conclusion as to a class of ballots where the squares are not stamped, and another board may reach another and different conclusion as to the same class; and thus uncertainty and confusion prevails in a matter which the legislature intended, we think, should be certain. By an act of the general assembly approved March 6, 1891, (Acts 1891, p. 124,) section 45 of the act now under consideration was amended so 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. This amendment was intended, we think, 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. But little if any aid can be derived from the adjudged cases under the English and Canadian statutes, by reason of the marked difference between those statutes and the one we are now considering, but the cases under those statutes hold that unless there is a substantial compliance by the electors with the provisions of the statute the ballot cannot be counted. Haswell v. Stewart, 1 Sess. Cas. (4th Ser. Scot.) 925; Robertson v. Adamson, 3 Sess. Cas. (4th Ser. Scot.) 978; Jour. Jur. vol. 20, pp. 402, 407; Grant v. McCallum, 12 Can. Law J. 113; Olmstead v. Carpenter, Hodg. Elec. Cas. 531; Hawkins v. Smith, 8 Can. Sup. Ct. 676; Thornt. Mun. Law Ind. § 4709.

Each ballot constitutes a separate and distinct written instrument; and, like all other written instruments, its construction is for the court. Of the 154 ballots appearing in the record before us, not to exceed 19 could by any possibility be counted for either the...