Ray v. Hogan

• Decision Date: 22 May 1915
• Citation: 108 N.E. 1051,221 Mass. 223
• Parties: RAY v. HOGAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 223

108 N.E. 1051

RAY v. HOGAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1915

COUNSEL

J. P Dexter, of South Framingham, for petitioner.

Edward L. McManus, of Boston, for respondents.

OPINION

BRALEY J.

It appears that the opponent of the petitioner for the office of selectman for the term of three years not having been nominated by any party, his name was not printed on the official ballot. While many voters, either in writing or by the use of pasters, inserted his name in the blank space provided therefor at the end of the list of candidates, these votes seemingly were insufficient to insure his election, and the petitioner is entitled to the office unless the eighteen pasters placed over the petitioner's name in the space where his name appeared and the cross made in the square opposite thereto, were properly counted for his opponent whose name they bore. The cardinal rule is that:

'If the intent of the voter can be fairly determined effect shall be given to that intent and the vote counted in accordance therewith.' Flanders v. Roberts, 182 Mass. 524, 525, 526, 65 N.E. 902, and authorities cited.

And his intention is to be found from the evidence of what he did. If not prohibited by statute, ballots which fairly and unmistakably express the voters' purpose are to be counted as deposited in the ballot box. O'Connell v. Mathews, 177 Mass. 518, 521, 59 N.E. 195; Brown v. McCollum, 76 Iowa, 479, 41 N.W. 197, 14 Am. St. Rep. 228; State v. Eagan, 115 Wis. 417, 91 N.W. 984.

The original act of 1888 (chapter 436, § 23), as amended by St. 1889, c. 413, provided in section 23 that the voter could fill in the blank space on the ballot with the name of the candidate of his choice; but in the codification of the election laws in St. 1893, c. 417, § 162, this wording was so changed as to read 'by inserting the name of the candidate of his choice.' It was said in Cole v. Tucker, 164 Mass. 480, 488, 41 N.E. 681, 29 L. R. A. 668, where the use of the official ballot by the voter was under discussion, that:

'The act permits the voter to vote for such persons as he pleases by having blank spaces on the official ballot in which he may write or insert in any other proper manner the names of such persons.'

The blank space is as appropriate for the insertion of a printed slip as of a written name, and under this statute and subsequent revisions the use of pasters, while not expressly, is impliedly recognized. St. 1898, c. 548, § 224; R. L. c. 11, § 227; St. 1907, c. 560, § 260; St. 1913, c. 835, § 292, as amended by St. 1914, c. 435. We find no express provision, however, in St. 1913, c. 835, prohibiting the voter, if he chooses such mode of exercising his right, from placing a written or printed slip bearing the name of another person over the name of a candidate, and voting for that person by making a cross in the appropriate blank opposite the name. The designation may be irregular but it is not illegal. Coughlin v. McElroy, 72 Conn. 99, 43 A. 854, 77 Am. St. Rep. 301; Tandy v. Lavery, 194 Ill. 372, 62 N.E. 774. It is not a 'spoiled ballot,' which under section 296 the voter can exchange for a fresh ballot, nor is the paster itself a distinguishing mark used by the voter, subjecting him to the penalty of imprisonment under section 453. People v. Shaw, 133 N.Y. 493, 497, 498, 31 N.E. 512, 16 L. R. A. 606.

The cases cited by the petitioner are not in conflict with this view. In Whittam v. Zahorik, 91 Iowa, 23, 59 N.W. 57, 51 Am. St. Rep. 317, and Van Winkle v. Crabtree, 34 Or. 462, the ballots plainly showed marks by which the voter could be readily identified, while in Fletcher v. Wall, 172 Ill. 426, 50 N.E. 230, 40 L. R. A. 617, the use of pasters was prohibited by statute. Apple v. Barcroft, 158 Ill. 649, 41 N.E. 1116, and Kelly v. Adams, 183 Ill. 193, 55 N.E. 837, determined that two straight marks through the circles and squares on a printed ballot were not crosses; and that a cross to the right of the name of a candidate between such name and the square opposite the name of an opposing candidate, did not sufficiently show the intention of the voter, and that a ballot marked only by pencil erasures of all the names on one ticket could not be counted; and that a ballot not officially endorsed by the judge of election was not a ballot within the statute and that the ballot in question, which bore two sets of crosses over the printed names of eight of the candidates for office, with a nondescript mark shaped like a large hook upon one of the crosses, contained distinguishing marks.

A further review is unnecessary. The decisions as to what constitutes marks which invalidate the ballot depend upon the construction of local statutes and are not uniform, but we have found none exactly similar to the case at bar. See 15 Cyc. 357, 358, 359, and notes.

The election, as we have said, was for the choice of selectmen for three years and other town officers for the ensuing year. The words, 'three years,' appearing on the paster after the name of the person voted for, correctly stated the term of office required by the official ballot. St. 1913, c 835, part V, §§ 394-408. If a distinguishing mark is the use by the voter of numbers, letters, characters or symbols by which he can be identified and how he voted determined; the words of themselves do not disclose the voter's identity and whether by some prearrangement or understanding they were deliberately so intended was a question of fact upon which the finding for the respondents by the single justice is conclusive. Voorhees v. Arnold, 108 Iowa, 77, 78 N.W. 795; Kelso v. Wright, 110 Iowa, 560, 81 N.W. 805; Boston Supply Co. v. Rubin, 214 Mass. 217, 220, 101 N.E. 133. If it be suggested that the blank spaces enable the voter to insert the name of any person not printed on the ballot, section 259 reads that those spaces are left in which 'the voter may insert' such names. The statute does not say...