Taylor v. Bleakley

• Decision Date: 01 January 1895
• Citation: 39 P. 1045,55 Kan. 1
• Parties: JOHN F. TAYLOR v. JOSEPH BLEAKLEY
• Court: Kansas Supreme Court

39 P. 1045

55 Kan. 1

JOHN F. TAYLOR v. JOSEPH BLEAKLEY

Supreme Court of Kansas

January 1, 1895

Error from Leavenworth District Court.

AT the general election in the fall of 1893, Joseph Bleakley was the republican candidate for the office of county treasurer of Leavenworth county, and John F. Taylor the democratic candidate for that office. From the canvass made by the county clerk and commissioners of the returns of the election for the office it appears that Bleakley and Taylor had an equal number of votes, and a higher number of votes than any other person. The commissioners proceeded to determine by lot which of those two persons should be elected. Lots were drawn, which resulted in awarding the certificate of election to Taylor. Thereupon Bleakley instituted proceedings in contest before a contest court duly organized for that purpose and composed of Probate Judge Hawn, and Judges H. W Ide and T. A. Hurd, and the county clerk, as clerk of that court. The election was the first one held in Leavenworth county under chapter 78 of the Laws of 1893, commonly known as the "Australian-ballot Law," and the contest court in counting the ballots construed that law. Before the official ballots were counted by the contest court arguments were made before the court regarding the proper interpretation of said chapter 78.

The first decision of the contest court concerning the law was announced by Hon. H. W. Ide. It was as follows:

"It is difficult to lay down many rules in advance. by which it shall be determined whether disputed ballots should be counted or not. But two or three general principles seem to me to be so clear that I have no hesitancy in giving my assent at this time. The present election law provides a new system of voting calculated to secure privacy, personal independence, and freedom from party or individual surveillance, and, in this respect, tends to promote an independence and free exercise of the elective franchise. It provides that all the tickets shall be printed on one sheet of paper, and the ticket of each party shall be in a column by itself, with a proper heading including its political character. At the end of each name a space is provided for in the shape of a square, within which the voter is to indicate his choice of candidates by making a mark in the shape of a X, and the making of any mark on his ballot by which his ticket can be identified is especially prohibited. The principal questions discussed by counsel, which we are asked to decide, are: May the mark prescribed by the statute be in any other place than in the square at the left of the candidate's name, or in any other style or form than the cross described by the statute? In my opinion this mark must be substantially where the statute says it shall be. It will not be valid to put it at the head of the ticket, nor at the right of the candidate's name, nor above or below it, or across its face. Yet I do not think it must be all within the square, but some portion of it must be. If it is all outside of the square, although only by a small distance, it cannot be counted. As to the form of the mark required by law some little allowance must be made for the want of practice with a pen or pencil, and carelessness or haste of the voter, or for poor sight due to age, and to the trembling hand of enfeebled nerves, but the mark must conform substantially to that designated in the law. Difficulty may and probably will be encountered when we come to the inspection of the ballots in determining whether a ballot is or is not in its proper place or is in the proper form. But this is a difficulty inherent in the very nature of the case, and cannot be arrived at by general rules, but each case will have to be determined by itself, under the principles herein enunciated."

After a part of the official ballots were examined by the contest court, it appears that there was a rehearing allowed concerning the construction of the law, and thereupon the court decided that it would go back to the beginning of the count in the contest, and go over all of said ballots according to a different rule from that heretofore governing them, which was done." And the count then proceeded with the result that the contest court decided that John F Taylor was duly elected on the 7th of November, 1893, as treasurer of Leavenworth county. The entire number of official ballots cast at the election were disposed of by the contest court as follows:

Counted for Bleakley without objection

2,057

Counted for Bleakley against Taylor's objection

695

Counted for Taylor without objection

2,196

Counted for Taylor against Bleakley's objection

579

Ballots objected to, but not counted for either party

24

Ballots not indicating a vote for either party

1,206

Total

6,757

By the count of that court, according to the rule of construction finally adopted, Bleakley received 2,752 votes and Taylor 2,775 votes, a plurality of 23 votes for the latter. Bleakley prosecuted his petition in error to the district court, which reversed the ruling of the contest court and decided that Bleakley was duly elected treasurer of Leavenworth county on the 7th of November, 1893. The district judge (Hon. L. A MYERS), at the time of rendering judgment in favor of Bleakley against Taylor, handed down the following opinion:

"I have given a careful consideration and, I trust, due weight to the many authorities cited, as well as to the very able and exhaustive arguments of counsel in this case. I have endeavored to fully consider the rights of the voter, as well as the rights of the party to this contention. Fully appreciating the great interests at stake, it is a relief to know, as stated by counsel, that no matter what the result here, the supreme court will be called upon to give its unerring judgment upon the points involved. There can be no question but that our Australian-ballot law was copied bodily, with but few immaterial alterations, from the Iowa law passed a year earlier. The supreme court of that state in a well-considered opinion, (Whittam, v. Zahorik, 59 N.W. 57,) has given its interpretation of that law. I believe that interpretation is the right one. To hold otherwise would, in my judgment, defeat the main purpose of the law itself. And this view is, as appears to me, upheld in the main by the weight of decisions in other states. Our own supreme court, in Boyd v. Mills, [53 Kas. 594,] while holding that a mistake on the part of the officer furnishing the ballots should not operate to the prejudice of the honest voter, go further, and say they do not decide that any of the provisions of the law may be disregarded, or that any officer may escape liability to punishment for violating any of its provisions. Our supreme court, following an unbroken line of decisions, draw a marked distinction between a disregard of the law on the part of the voter and an honest mistake on the part of an election officer. Construing the different section of the act prescribing the form of ballot to be prepared and furnished, the directions to be printed on such ballot for the guidance of the voter, 'that he shall make a cross-mark in the square to the left of the name of the candidate for whom he wishes to vote,' together with the plain provision in section 22, that the voter, 'on receipt of his ballot, shall prepare the same by making in the appropriate margin or place a cross to the left of the name of the candidate of his choice,' I can come to no other conclusion than that the law means that the cross must be made substantially in or upon the square. The further provision in section 25, that 'if the voter fails to mark the ballot, as required by other sections of this act, his ballot shall not be counted,' makes this requirement mandatory.

"As to the other points raised: 1. I think the law is constitutional, notwithstanding the forcible and ingenious argument of counsel for the contestee. 2. The official ballots put in evidence fully prove, if proof were necessary, that the contestor was regularly nominated, and that his name was properly on the ballots. 3. The act of a judge of the election in writing his name instead of his initials upon the ballot would not invalidate such ballot, unless done at the request of the voter, or as an identifying or distinguishing mark. 4. Ballots voted at one precinct which had been prepared for another would not be void, where the same had been prepared and furnished by the proper officer by mistake and without collusion or fraud.

"In arriving at these conclusions, I am not unmindful of the high character and great ability of the gentlemen composing the contest court; and from their earlier rulings, I venture to believe that if they had had the Iowa decision before them, they would have concurred in the views here expressed. The judgment of the contest court is reversed."

Section 14 of said chapter 78, Laws of 1893, reads in part:

"The party appellation or title shall be printed in capital letters, not less than one-fourth of an inch in height, and immediately below such party appellation or title shall be printed the following statement: Electors will make a cross-mark, thus (X), in the square at the left of the name of the candidate for whom they wish to vote."

Section 15 has the following:

"For all elections to which this act applies, the county clerks in their respective counties shall have charge of the printing of the ballots for all general elections, and shall furnish them to the judges of such elections."

The official ballots furnished to the voters of Leavenworth county, at the November election for 1893, had the following words plainly printed at the top of each ballot "Electors will make a cross-mark, thus (X), in the square at the left of the name of the...