Pennington v. Hare

Decision Date29 January 1895
Citation62 N.W. 116,60 Minn. 146
CourtMinnesota Supreme Court

(Syllabus by the Court.)

1. Where qualified electors offered to vote, but were prevented from actually casting their ballots by an erroneous decision of the election judges, held, that such ballots cannot be counted for the candidate the electors subsequently declared they intended to have voted for, if they had voted.

2. Sections 89, 105, and subsection 7 of section 136, c. 4, Laws 1893, construed. Held, that where the judges of election, by reason of a mistake as to the law, numbered the ballots of electors, without their knowledge, the ballots so numbered are legal, and must be counted as cast.

3. Held that, where electors intentionally write their names upon their ballots, for identification, and so cast them, such ballots cannot be counted for either party.

4. Held, that the proviso of subsection 7 is mandatory, but that any mark which it is apparent was honestly intended for a cross mark, and for nothing else, must be given effect as such, no matter how crude in form it may be.

Appeal from district court, Ramsey county; John W. Willis, Judge.

Contested election case, before a canvassing board, of Wellington Pennington against Robert N. Hare. From an affirmance by the district court of a judgment of the canvassing board declaring defendant elected, plaintiff appeals. Affirmed.

Collins, J., dissenting.

W. H. Lightner, F. W. Zollman, Henry Johns, and Percy D. Godfrey, for appellant.

John H. Ives, J. C. Michael, and R. A. Walsh, for respondent.


At a city election held in the city of St. Paul on May 24, 1894, under the provisions of chapter 4, Gen. Laws 1893, the parties hereto were rival candidates for the office of alderman of the Sixth ward. The canvassing board declared the respondent elected, and appellant appealed to the district court of Ramsey county, where the matter was heard, and judgment entered for the respondent, from which the appellant appealed to this court.

1. In the Eighth precinct of the ward, 93 ballots were cast and counted for the appellant, and 42 for the respondent, which had been numbered, without the knowledge of the electors casting them, by the judges of election, by reason of a misunderstanding of the law on their part. These ballots were properly counted for the respective parties. To hold otherwise would place it in the power of the election officers to disfranchise electors at their pleasure. State v. Gay (Minn.) 60 N. W. 676. Including these ballots, the respondent received 1,018 undisputed votes, and the appellant 1,013 like votes. In addition to the undisputed ballots, the district court counted 12 supposed votes for the respondent, which that number of electors, who were prevented from voting at the election by reason of an erroneous ruling of the judges thereof, said they had intended to have cast for him. There were also 16 actual ballots which were disputed, 12 of them are designated in the record as “Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, A, B, and C,” and the other four as “Exhibits G, H, I, and J.” The four were marked by each elector writing his name on the back of his ballot.

2. The court found as fact, with reference to the 12 supposed votes, that 12 qualified electors of the Second precinct entered the polling place with the intention of voting for the respondent, but by an erroneous decision of the judges they were not permitted to vote; that they were not prevented from voting by fraud or intimidation. If these electors had been prevented from voting by fraud or violence, it might and probably would have been the duty of the court to have rejected the entire vote of the precinct, or declared the election void, as justice might require. It is not necessary to decide this point, for the record presents the simple question, can votes not cast, because of an error of judgment on the part of the election officers, be counted as if cast and returned? We are clearly of the opinion that they cannot be. Where a ballot has been marked by the elector, properly cast, and returned, we have something tangible and certain to deal with, and from it we unerringly read the intention and act of the elector. But where, as in this case, the supposed ballots were never in existence, and we must rely upon the subsequent declarations of the electors as to how they intended to and would have marked and cast their ballots, if they had voted, it would be an uncertain and dangerous experiment to attempt the task of ascertaining and giving effect to their intentions, as ballots actually cast and returned. Uncertain, because it would be simply a matter of speculation; dangerous, because it would give to such electors the power of determining the result of an election, in a close contest. All that it would be necessary for them to do, in such a case, to decide the election, would be to declare that they intended to vote for a particular candidate. It would enable them to sell the office to the candidate offering the highest price for it, because they would not be called upon for their declaration until a contest arose, after the actual ballots had been counted, and the precise effect of their statement known. They could swear falsely as to their past intentions, without fear of punishment, for how would it be possible to disprove their statements as to their intentions with reference to a supposed act, if perchance they had acted? Cooley, Const. Lim. 781. It seems a hardship that an elector should lose his vote by reason of an error of the election judges, but errors of judgment are inevitable; and, whenever any possible remedy which can be suggested is inconsistent with the highest public interests, they are remediless. The proposition that the title to a public office can be made dependent upon the subsequent statements of an elector as to what he would have done, if he had been permitted to vote, is not only contrary to sound public policy, but seems to be simply unthinkable.

3. Exhibits 1 and 2 were not counted by the district court for either party, for the reason, as the court found, that the name of the appellant was not marked by a cross mark, while other names on the same ballot were so marked. Section 136, subsec. 7, c. 4, Gen. Laws 1893. This section provides that if any elector, marking his ballot, shall use any mark clearly indicating an intent to mark against the name of any candidate, it shall be a sufficient vote for the candidate, provided the cross mark is not used elsewhere on the ballot. The evident purpose of the proviso is to prevent the elector from placing upon his ballot any distinguishing mark, whereby it may be certified to others how he voted. A ballot so marked cannot be counted; otherwise, a corrupt candidate might, by previous agreement, arrange with his purchased creatures to place a particular mark after his name, whereby he could ascertain, when the ballots were canvassed, that they had kept faith with him, and were entitled to the purchase price of their honor. The statute does not, however, prescribe any inflexible rule as to what shall or shall not be accepted as a cross mark, and any mark, however crude and imperfect in form, if it is apparent that it was honestly intended as a cross mark, and for nothing else, must be given effect as such; otherwise, electors unaccustomed to the use of pen or pencil might be disfranchised. An examination of Exhibits 1 and 2 discloses the fact that each of them was marked with a cross, within this rule, and they must be counted for the appellant. Exhibits 3, 7, and 9 were all correctly counted for the appellant by the court. Exhibits 4, 6, and 8 were not counted for either party, and correctly so, for each of them was marked for two candidates for alderman, with no attempt to erase either mark. Exhibit 5 was rejected by the court as a spoiled ballot, which was never actually cast. It had a cross mark opposite the name of the appellant. There is evidence in the record to sustain the finding of the court, and the ballot was properly rejected. Exhibit A was properly counted for the respondent. There was a cross after the name of another candidate for alderman, as well as one after the respondent's name, but there was a clear attempt to erase the former. Exhibits B and C were not counted for either party. The first had a cross mark equally near to the name of two candidates for alderman, and the second a like mark opposite the names of two such candidates, with no attempt to erase either. The ruling was correct.

4. The district court found that Exhibits G, H, I, and J, three of which were marked and cast for appellant, and one for the respondent, were marked for identification, by each elector writing his name upon the back of his ballot; and it rejected them from the count, as ballots identified, divulged, and shown, contrary to law. This finding of fact is sustained by the evidence. Were these ballots legally rejected? Section 105 of the election law provides that no voter shall divulge to any one within the polling place the name of any candidate for whom he intends to vote, or has voted. If any elector (except as provided for disabled and illiterate voters), after having marked his ballot, show it to any one, the judges of election shall refuse to receive or place the same in the ballot box; and, if such showing was clearly intentional, no other ballot shall be delivered to such elector. It is to be observed that the prohibitions of this section relate to the personal conduct of the elector. There is a clear distinction between the provisions and prohibitions in election laws which are personal to the elector, which, if he violates them, it is his own fault, and those which apply to election officers, over whose conduct he has no control. In the former...

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