State ex rel. Hagge v. Hagen
| Decision Date | 29 September 1894 |
| Citation | 60 N.W. 108,91 Iowa 510 |
| Parties | STATE OF IOWA, ex rel. DETLEF HAGGE JR. v. FRANK HAGEN, Appellant |
| Court | Iowa Supreme Court |
May 1 1894
Appeal from Carroll District Court.--HON. GEORGE W. PAINE, Judge.
QUO WARRANTO to determine the rights of the relator and the defendant to the office of councilman in the incorporated town of Arcadia. The district court gave judgment for the relator, and the defendant appealed.
Reversed.
W. R Lee for appellant.
F. M Powers for appellee.
The case was submitted to the district court upon an agreed statement of facts, of which the following is the important part, on this trial:
"It is hereby stipulated and agreed by and between the parties hereto that this statement contains all the evidence in the case, and that this statement shall stand as the evidence in the case, both on trial in the district court and in the supreme court on appeal: That there was a municipal election for the election of the officers of the incorporated town of Arcadia on the fifth day of March, 1894, at Arcadia, Iowa at which election Frank Hagen, Detlef Hagge Jr., and J. B. H. Feenstra were candidates for the office of trustee or councilman of said incorporated town of Arcadia. That there were but two trustees or councilmen to be elected at said election, and that the names of the said three candidates were printed upon the tickets or ballots used at said election. Copy of the tickets used are set out below. That at said election said J. B. H. Feenstra was duly elected councilman. That at said election Frank Hagen received fifty-one votes, which were counted for him, and Detlef Hagge, Jr., received fifty-one votes, which were counted for him. That the name 'D. Hagge' was written in the blank space in the last ticket, as indicated by the script, but with no other mark of any kind, and without the X. That at said election two certain ballots were cast which were not counted for either Frank Hagen or Detlef Hagge, Jr., but were rejected. The ballots so rejected were as follows, and designated as 'Ballots A and B':
[SEE BALLOTS IN ORIGINAL]
The statement of facts further shows that the judges of election refused to count either of the ballots, and by lot determined the defendant to be the incumbent. The district court found the issues with the relator, and gave judgment of ouster against the defendant.
I. The question arising on Ballot A is practically considered and settled in Whittam v. Zahorik, 91 Iowa 23; 59 N.W. 57, decided at the last term of this court. It is referred to, in argument, in this case, but its import does not seem to be conceded. In the light of some contentions and opinions that have since come to our attention, we may profitably give the matter further notice.
Ballot A is like the "second Illustration" in the Whittam case, except that in that case there were three officers of the same kind to be voted for, and in this case there are two. The rule to govern the choice of candidates is the same. In this case Ballot A shows that the voter expressed a choice to vote the Town ticket by a general designation, which is by a cross in the circle before the ticket appellation. That cross signifies, in a way the law directs, that the voter desired to vote the entire Town ticket, and it should be so counted, unless he specially designates some candidate on the Citizens' ticket for whom he desires to vote in place of one on the Town ticket. The cross on the Citizens' ticket before the name of Feenstra is such a special designation, and it is a vote for Feenstra, regardless of and markings on the Town ticket. But the voter has another choice of a councilman, and he wishes to make that choice from the two candidates on his own (the Town) ticket. In making this choice, seems to be the difficulty. On Ballot A, the voter has put a cross in the square before the name of Detlef Hagge, Jr., and the claim is that the crosses express the intent of the voter to vote for Feenstra and Hagge; and, but for the provisions of the law as to how the intent should be expressed, we might concur in that view, and such a method might be a very good one. The law makes no provision, where a ticket is selected by a cross in the...
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