Peterson v. Billings

• Decision Date: 19 December 1939
• Docket Number: No. 7987.,7987.
• Citation: 109 Mont. 390
• Parties: PETERSON v. BILLINGS.
• Court: Montana Supreme Court

109 Mont. 390

PETERSON

v.BILLINGS.

No. 7987.

Supreme Court of Montana.

Dec. 4, 1939.

Rehearing Denied Dec. 19, 1939.

Appeal from Ninth Judicial District Court, Teton County; John Hurly, Judge.

Election contest by Albert O. Peterson against J. L. “Shell” Billings. From a judgment for J. L. “Shell” Billings, Albert O. Peterson appeals, and J. L. “Shell” Billings sets up one cross assignment of error.

Reversed with directions.

MORRIS, J., dissenting.

Busha & Greenan, of Great Falls, for appellant.

L. P. Donovan and L. P. Donovan, Jr., both of Shelby, for respondent.

ERICKSON, Justice.

This is an appeal from the judgment of the district court of Teton County. At the general election held November 8, 1938, in that county, the names of three candidates for the office of sheriff appeared on the official ballot. The name of the appellant appeared in the republican column and the name of the respondent in the independent column. The official canvass resulted in the election of appellant. The canvass gave to him 955 votes and to respondent 951 votes.

Thereafter, upon the proper application, a recount of the votes was had in certain precincts, this time resulting as follows: Appellant 953; respondent 955. Later a recount and a recanvass of all the ballots was had with the result that appellant received 947 and respondent 949. A petition to contest the election of respondent was filed in the district court by appellant and the matter was there heard. The record before the court on that hearing consisted of 47 disputed ballots which ballots were certified to this court. Upon the trial in the lower court it was found that respondent secured 950 votes and the appellant 947 votes, and a judgment was entered declaring the election of the respondent to the office of sheriff and judgment in favor of the respondent for attorney's fees was awarded in the sum of $250, in addition to costs and disbursements expended in the matter by respondent.

Appellant assigns 45 specifications of error and the respondent sets up one cross assignment of error. It will not be necessary to discuss each of the assignments separately, nor will it be necessary, as it will later develop, to discuss all of the 47 ballots certified to the court. The ballots certified include ballots counted for respondent which appellant contends were so marked by writing in unnecessary names, extra crosses and by erasures so as to identify them contrary to the provisions of the statute. The ballots certified which were not counted for the appellant are in general ballots which were excluded by reason of the insufficiency of the marking used by the voter to indicate his choice of the appellant for the office of sheriff.

Ballot Plaintiff's Exhibit 29a is one in which the voter placed a rather indistinct “X” before appellant's name. He voted for no other candidate for sheriff. The “X” is discernible and there was no erasure. The ballot should have been counted for appellant.

Exhibit No. 1 or la was improperly counted for respondent. The elector marked two squares for sheriff thus:

?? Delwo ?? Billings

This extra line through the square before Delwo's name might indicate the elector first voted for Delwo and then changed his mind, but other squares marked for a particular candidate where the voter marked no other square for the same office show marks similar to that put before Delwo's name. The voter marked the square before Dr. H. W. Bateman, candidate for state senator, in this manner ?? and the square before the name of Otto Wagnild, candidate for county assessor thus ??, and the square before the name of Geo. A. Carroll, candidate for county clerk thus ??. The mark before the name of “Delwo” is much the same as the mark the elector made before the names of candidates where he voted for only one for the office. We cannot conjecture as to whether it was the voter's intention to vote for Delwo or for Billings, or both. Before a vote may be counted it must plainly appear what the intention of the voter was. Here the intention was not clear.

Exhibit No. 5 was a ballot which was not counted for either candidate. The voter evidently attempted to vote for Peterson, but the intersection of the “X” is not within the square before his name, but appears thus ?? Albert Peterson The lower court apparently relying on the case of Carwile v. Jones, 38 Mont. 590, 101 P. 153, 155, ruled out the ballot. In the Carwile case the voter did not make any mark in the square preceding the name of the candidate, but placed an “X” in the square before the blank space below the candidate's name. In ruling that the voter did not comply with the statutory requirement this court said, “*** to constitute a substantial compliance with the law, at least the point of intersection of the two lines forming the cross must be within the square before the candidate's name. Parker v. Orr, 158 Ill. 609, 41 N.E. 1002, 30 L.R.A. 227;In re Hearst, 48 Misc. 453, 96 N.Y.S. 119;Rexroth v. Schein, 206 Ill. 80, 69 N.E. 240;McKittrick v. Pardee [supra, 8 S.D. 39, 65 N.W. 23]; 9 Current Law 1050; Smith v. Reid, 223 Ill. 493, 79 N.E. 148.”

The statement that the intersection must be within the square before the candidate's name was gratuitous in the opinion as no part of the “X” was either in the square nor before the name. The quotation is wholly a matter of dictum. Even if the statement were not dictum the cases, except one, cited by this court in that decision as authority for the pronouncement that the intersection must be within the square are not in point or are contrary to the rule announced. Parker v. Orr, supra, involves a statute which does not contain any reference to a square and no language of the decision can be found to support the statement made by this court. The decision does hold the statutory provision as to the manner of making the cross to be directory and not mandatory, and then says [158 Ill. 609, 41 N.E. 1004, 30 L.R.A. 227]: “It has always been held in this state that if the intention of the voter can be fairly ascertained from his ballot, though not in strict conformity with the law, effect will be given to that intention. In other words, that the voter shall not be disfranchised or deprived of his right to vote through mere inadvertence, mistake, or ignorance, if an honest intention can be ascertained from his ballot.”

The court in In re Hearst, supra, was considering the matter of marked ballots. The ballot being considered was one where the lines of the “X” extended beyond the square although the intersection was within the square and anything said as to the necessity of the intersection being within the square is dictum.

In Rexroth v. Schein, supra, the cross was entirely outside the square. Nothing is said as to intersection. Smith v. Reid, supra, holds that the intersection must be in the square. McKittrick v. Pardee, supra, is not authority for the proposition as there no cross or part of a cross was in the square and nothing is said about the intersection.

We do not believe that our statute merits the interpretation given by this court in the Carwile case. Section 696 provides: “He shall prepare his ballot by marking an ‘X’ in the square before the name of the person or persons for whom he intends to vote.” Section 777 provides: “*** any ballot *** from which it is impossible to determine the elector's choice is void and must not be counted; if part of a ballot is sufficiently plain to gather therefrom the elector's intention, it is the duty of the judges of election to count such part.”

“It is a general rule that election laws must be liberally construed. This court, in Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, , on page 57, 16 Mont., and page 85, 40 P., announces that ‘in the construction of election laws the whole tendency of American authority is towards liberality, to the end of sustaining the honest choice of the electors.’ The reason for this rule is that the paramount and ultimate object of all election laws under our system of government is to obtain an honest and fair expression from the voters upon all questions submitted to them.” Dickerman v. Gelsthorpe, 19 Mont. 249, 47 P. 999, 1001.

“But if, from the marking of the ballot in substantial compliance with the law, the intent and choice of the voter clearly appear, then his ballot should be counted, unless the statute expressly or by clear inference forbids it; otherwise the true spirit of the election law might be violated by subordinating the essence to a mere element of detail, and substance might be sacrificed to form. The elective franchise is not conferred upon the citizen by the legislature, or by virtue of legislativeenactments. The right to vote is a constitutional right, and is one of the bulwarks of our form of government and system of civil liberty.” Id., 19 Mont. 249, 47 P. 999, 1002.20 C.J. 154, 18 Am.Juris. 302, and many cases therein cited. This is particularly true where there is a statutory provision similar to our section 777. The majority rule is that the ballot should be counted if the “X” is only partly within the square if the voter's intention is clear and it is apparent he made an honest attempt to comply with the law even though the intersection is without the square. 20 C.J. 158.

We believe this is doubly true in this state since unlike many states our statute contains no provision that the vote not be counted if the “X” is not within the square and in view of the provisions of our section 777. The intention of the voter to vote for Peterson is clear.

Respondent assigns as cross error the counting of Ballot Exhibit 32a for appellant. On that ballot the intersection of the cross is squarely on the line of the square. The ballot was properly counted for Peterson—particularly in view of what we have said above.

Ballot Plaintiff's Exhibit No. 9 was one in which the elector marked the squares before the various candidates, including Peterson, with a check mark, thus ??. The trial...