Truelsen v. Hugo

• Decision Date: 01 August 1900
• Docket Number: 12,234 - (269)
• Parties: HENRY TRUELSEN v. TREVANION W. HUGO
• Court: Minnesota Supreme Court

83 N.W. 500

81 Minn. 73

HENRY TRUELSEN v. TREVANION W. HUGO

Nos. 12,234 - (269)

Supreme Court of Minnesota

August 1, 1900

Election contest in the district court for St. Louis county. The contest was heard before Dibell, J., who found in favor of contestee, Hugo. From a judgment entered pursuant to the findings contestant, Truelsen, appealed. Thereafter the contestee also appealed. Affirmed.

SYLLABUS

Election -- Intention of Voter as Shown by Marking of Ballot.

The intention of a voter, under our election law, must control in counting his ballot; but such intention must be shown and indicated by markings on the official ballot substantially in the manner provided by such law, and in bona fide attempt at compliance therewith.

Ballots.

Various ballots involved in this contest examined and considered, and the markings thereon held a sufficient compliance with the statutory requirements. Other ballots examined, and held not a compliance with such statutes.

Findings Sustained by Evidence.

Findings of the trial court that contestee was duly elected mayor of Duluth sustained.

S. H Moer, for contestant.

Thomas J. Davis, Davis, Hollister & Hicks and Coryate S. Wilson, for contestee.

OPINION

BROWN, J.

Election contest for the office of mayor of Duluth. At the city election in Duluth on February 6, 1900, the parties to this contest were opposing candidates for mayor. Contestee, Hugo, was declared elected, whereupon contestant, Truelsen, instituted this contest, which, after trial, resulted in judgment confirming the right of contestee to the office. Contestant appeals.

Subsequent to this appeal, contestee also appealed for the purpose of having reviewed the rulings of the court below counting certain ballots for contestant, which rulings could not be reviewed on contestant's appeal. But, as the judgment appealed from must be affirmed on contestant's appeal, no reference will be made to the questions presented by contestee's appeal. In the contest proceedings in the court below there was an entire recount of the ballots cast at the election, by referees appointed by the court, the result of which gave contestee 3,164 undisputed votes, and contestant 3,147. Ninety-six ballots were disputed and referred to the court, and of these 44 were given to contestant, and 32 to contestee, with 20 rejected and not counted for either party. The vote as finally determined by the court gave contestee 3,196 and contestant 3,191.

The first question presented is with respect to the manner in which the intention of a voter must be expressed in order that his vote may be counted. It is conceded that the intent of the voter should prevail, but the question is as to how he must express or indicate that intention by his markings on the official ballot. The appellant contends that every ballot should be counted, if it can be clearly ascertained from the face thereof for whom the same was intended, regardless of the method or manner in which the same is marked, unless the counting of such ballot is expressly or by necessary implication of law prohibited. Respondent concedes that the intention of the voter should prevail, but contends that such intention must be expressed in substantially the manner provided by statute. The broad rule contended for by appellant would open wide the door to a violation of one of the main features of our election law, -- the feature intended to prevent electors from so marking their ballots as to indicate that they had voted according to contract. To prevent this, a method and manner of marking are expressly designated. And, to the end that the unintelligent voter might not be disfranchised and deprived of his vote, liberal rules for ascertaining the intent of the voter and for counting ballots are provided. It is provided by G.S. 1894, § 141, that,

"In the counting of ballots cast at any election, all ballots shall be counted for the persons for whom they were intended, so far as such intent can be clearly ascertained from the ballot itself."

And certain rules are laid down for guidance in determining such intent. And, while the statute is careful in requiring effect to be given the intent of the voter, all the provisions on the subject are pregnant with the idea that such intent must be expressed and indicated by a compliance with the manner and method therein provided for marking the ballots.

"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." START, C.J., in Pennington v. Hare, 60 Minn. 146, 62 N.W. 116.

If the intent of the voter is to control, regardless of the manner of indicating it, then there need be no attempt to comply with the requirements of the statute at all. Such is contrary to the purpose and intent of the law, and we adopt the view that the intent of the voter, to be effective, must be indicated and expressed substantially in the manner as provided by statute, or at least in a bona fide attempt at compliance therewith. Parker v. Orr, 158 Ill. 609, 41 N.E. 1002; Vallier v. Brakke, 7 So. D. 343, 359, 64 N.W. 180. With this rule in mind, we will proceed to a consideration of appellant's assignments of error. They relate wholly to disputed ballots, and we will take them up in the order discussed in appellant's brief.

Exhibit 16 was counted by the court below for Hugo, and a majority of this court are of the opinion that it was correctly so counted. There are two cross marks on this ballot opposite the names of contestee and contestant. One is very nearly, if not quite, on the line between the squares in one of which it should have been made. The other is in about the same position; being on the line extending between the names of the two candidates, but further removed to the left of the other mark. The theory of the majority of the court is that the marks being on or near, but not below, the line beneath the name of contestee, Hugo, they were intended by the voter as marks opposite his name; that it is not unreasonable to suppose that the marks were so made out of a habit on the part of the person making them, in writing upon ruled paper, to take as a starting point the line below the space in which the writing is intended to be placed; that, if the voter had intended to vote for Truelsen, the mark would have been on the line immediately below his name. In addition to these considerations, they rely upon the latter part of G.S. 1894, § 141, subd. 3, as follows:

"And if the mark is so near a space for marking as to indicate that it was intended for that space, it shall be deemed intended for the name to which such space applies."

The small mark under the name "Truelsen" was evidently unintentional. It is too small to attract...