Van Winkle v. Crabtree

• Decision Date: 16 January 1899
• Citation: 55 P. 831,34 Or. 462
• Parties: VAN WINKLE v. CRABTREE.
• Court: Oregon Supreme Court

55 P. 831

34 Or. 462

VAN WINKLE v. CRABTREE.

Supreme Court of Oregon

January 16, 1899

Appeal from circuit court, Linn county; George H. Burnett, Judge.

Proceedings by J.S. Van Winkle against Frank Crabtree to contest defendant's right to the office of clerk of Linn county. There was a judgment for defendant, and plaintiff appeals. Affirmed.

This is a special proceeding, under section 2544, Hill's Ann.Laws Or., to contest the defendant's right to the office of clerk of Linn county, to which he was declared elected by the county canvassing board. On the official ballot used in said county at the last general election, the names of the candidates for the office of county clerk were arranged in the following order:

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For County Clerk. Vote for One.

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70. Frank Crabtree of Linn countyOE People's"Democratic"Silver"Republican.

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71 E.E. Lange of Linn county Regular People's.

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72 J.M. Marks of Linn county Prohibition.

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73. J.S. Van Winkle of Linn county .............................. Republican.

The plaintiff alleges that, in certain designated precincts of said county, the judges and clerks of election therein returned as cast for him a certain number of votes, but that he received in each of said precincts a greater number than were so counted for him, and prays that said ballots may be recounted, and that he be declared elected to said office. The defendant denies the material averments contained in plaintiff's notice of contest, and alleges, in substance, that there were counted as cast for him in said precincts but 1,921 votes for said office, when in fact there were polled for him a greater number than were so counted; that plaintiff was credited with having received 1,920 votes; and that such number was in excess of the legal votes actually cast for him. It is also alleged, inter alia, that Harry Boyle and Fred Gross voted illegally at said election, and that said votes were counted for plaintiff. The reply having put in issue the allegations of new matter contained in the answer, a recount was ordered; but the court refused to receive in evidence or to count 25 ballots which plaintiff claims were cast for him, and received in evidence and counted for defendant 11 ballots to which plaintiff claims he was not entitled. Copies of the ballots so rejected, numbered consecutively from 1 to 25, inclusive, and of those counted for defendant, numbered from 26 to 36, inclusive, are set out in the bill of exceptions; and the original ballots, except No. 4, are also sent up with the transcript for inspection. Ballot No. 1 is marked with an "X" immediately to the left of Van Winkle's name, and also with a slanting stroke, made by a downward movement of the pencil, from left to right, between the number "70" and the name of "Frank Crabtree," which stroke appears to have been somewhat obliterated by a waving pencil line drawn over the same from the top to the bottom. Twelve ballots, numbered, respectively, 2, 5, 6, 7, 13, 14, 15, 17, 18, 19, 22, and 25, are marked with an "X" between the numbers "70," "71," and "72" and the corresponding candidates' names, thereby leaving no mark whatever between the number "73" and the name of "J.S. Van Winkle." Ballot No. 3 is marked in the same manner as the 12 ballots just described, except that between the number "73" and the name of "J.S. Van Winkle" the surface of the paper appears to have been abraded, as though the elector made in the space indicated a mark, which he erased with a knife or other sharp instrument. Ballot No. 8 is marked in the same manner as said 12 ballots, and, in addition thereto, contains curving lines placed after the word "county," appended to the names of Crabtree, Lange, and Marks. Ballot No. 20 contains an "X" placed to the right of each of the candidates' names, except plaintiff's. Ballots numbered 9, 21, and 24 are marked by pencil lines through all the candidates' names, county of residence, and political designation, except that of plaintiff. Ballot No. 16 contains a pencil mark drawn through all the candidates' names and their county residence, except plaintiff's, leaving their several party designations unmarked. Ballot No. 23 contains a pencil mark drawn through Crabtree's Christian name, and through the initials of Lange and Marks, leaving plaintiff's name unmarked. Ballot No. 4 has lines drawn through each of the party designations, except the word "Republican." Ballot No. 10 is marked in the same manner as ballot No. 1, except that the stroke thereon is made with a downward movement from right to left, and has no waving lines drawn over it. Ballot No. 11 is marked with an "X," the center of which appears to be a shade above the line between the names of Marks and Van Winkle; and ballot No. 12 has an "X" immediately to the left of, and also two pencil lines drawn through, Van Winkle's name. Ballot No. 26 has a horizontal line drawn through "70," the space to the right thereof, and most of the letters in the word "Frank." No. 27 has a horizontal line drawn immediately below the word "Frank." No. 28 has an "X" to the left of Crabtree's name, and also a horizontal pencil line about one-sixteenth of an inch in length immediately to the left of Lange's name. No. 29 contains an "X," the center of which appears to be a shade above the line between the names of Crabtree and Lange. No. 30 is marked by a nearly perpendicular line, extending through spaces Nos. 70 and 71, which is bisected by a nearly horizontal line, extending from Crabtree's name. No. 31 has an "X" after the word "county," in space No. 70. No. 32 is like No. 31, with the addition of a similar mark to the left of Crabtree's name. No. 33 contains a mark which fills space No. 70, and a part of space No.

71, with the "X" apparently crossing on the line between the names of Crabtree and Lange. No. 34 is properly marked as indicating the elector's intention to vote for Crabtree; and it also contains the name "G. Bradley," written after the printed name of "W.W. Sanders," candidate for constable. No. 35 is properly marked as having been cast for Crabtree, and also contains the letters "O.K.." written with a pencil in the space reserved for a candidate for the office of attorney general. And No. 36 is properly marked as having been cast for Crabtree, but on the back of the ballot there is indorsed the words, "State, county & Dis'ct."

Testimony having been admitted to show that H.R. Boyle (described in the answer as Harry Boyle) was not a citizen of the United States or of the state of Oregon, and that J.F. Gross (mentioned in the answer as Fred Gross) was not a resident of Crawfordsville precinct, Linn county, Or., on the day of election, the court, over plaintiff's objection and exception, permitted said Boyle and Gross to testify that at said election each voted for Van Winkle for the office of county clerk. The court, deducting the votes so cast by Boyle and Gross from the number apparently cast for Van Winkle, found that he had received 1,912, and the defendant 1,913, legal votes for the office of clerk of said county; whereupon the action was dismissed, and plaintiff appeals.

H.H. Hewitt, P.R. Kelly, and N.M. Newport, for appellant.

H.C. Watson and W.R. Bilyen, for respondent.

MOORE, J. (after stating the facts).

It is contended by plaintiff's counsel that, by giving to the statute providing for the marking and counting of ballots cast at a general election the liberal construction to which it is entitled, an inspection of the 25 ballots which were rejected shows that the several electors who cast them intended thereby to vote for Van Winkle, and hence the court erred in refusing to count them for him.

A general statement of the provisions of the Australian ballot law, so far as applicable to the facts involved, is deemed essential to a clear understanding of the questions presented for consideration. An act of the legislative assembly approved February 13, 1891 (Laws 1891, p. 8), appears in 2 Hill's Ann.Laws Or., at page 1169 et seq., and provides that the white official ballot shall have printed thereon, in bold-faced type, the words, "Mark between the number and name of each candidate or answer voted for." The ballots shall be printed so as to give each elector a clear opportunity to designate his choice of candidates by making a mark to the left of the name of the candidate he wishes to vote for. Section 49, as amended by the act approved February 23, 1895 (Laws Or.1895,[34 Or. 469] p. 68). The elector shall prepare his ballot by marking immediately to the left of the name of the candidate of his choice for each office to be filled, or by writing in the name of the person he wishes to vote for, which shall be done with an indelible "copying" pencil, or with pen and ink. Section 59 as amended by the act of February 23, 1895, supra. If an elector, by accident or mistake, spoils his ballot, so he cannot conveniently vote the same, he may, on returning said spoiled ballot, receive another in place thereof. Section 62. The county clerk is required to provide for each election precinct in his county two ballot boxes, one of which shall be marked "General," and the other "State and District," respectively. Section 53. If a majority of the judges of election are...