Whittam v. Zahorik

• Decision Date: 15 May 1894
• Citation: 59 N.W. 57,91 Iowa 23
• Parties: WHITTAM v. ZAHORIK.
• Court: Iowa Supreme Court

91 Iowa 23

59 N.W. 57

WHITTAM

v.ZAHORIK.

Supreme Court of Iowa.

May 15, 1894.

Appeal from district court, Linn county; J. H. Preston, Judge.

Action to contest the election of the incumbent to the office of justice of the peace. The court organized for the trial rendered judgment in favor of the contestant. From that judgment the incumbent appealed to the district court. After the evidence had been submitted in that court, the jury was directed to return a verdict in favor of the incumbent, which was done, and judgment was rendered on the verdict. The contestant appeals. Reversed.Rickel & Crocker, for appellant.

Heins & Heins, for appellee.

ROBINSON, J.

Three justices of the peace were to be elected in and for Rapids township, in Linn county, at the general election held in the year 1892. The republican party of that township nominated, as candidates for the offices named, Isaac N. Whittam, the contestant, C. W. Burton, and George H. Pollins, and caused their names to be placed upon the ballots which were cast at that election. The democratic party of the township nominated, as candidates for the same offices, Joseph Moore, William H. Storrs, and J. E. Zahorik, the incumbent, and their names were also placed on the official ballots. Those were printed, as required by section 14 of chapter 33 of the Acts of the 24th General Assembly. As the result of the election, the democratic nominees were declared elected. No question is made in regard to the election of any of them excepting the incumbent. The total number of votes cast for the contestant which are unquestioned was 2,214, and the number cast for the incumbent, and not questioned, was 2,210. In addition, 196 ballots were cast which are in dispute. Of those, 26 offered by the contestant and 54 offered by the incumbent were received in evidence, and 92 offered by the contestant and 24 offered by the incumbent were rejected. One of the ballots offered by the incumbent was counted for him, and also for the contestant. The district court thus counted 2,241 votes for the contestant, and 2,264, or a majority of 23, for the incumbent.

Section 14 of the election law, to which we have referred, contains the following: “The names of all candidates to be voted for in each election district or precinct shall be printed on one ballot; all nominations of any political party or group of petitioners being placed under the party appellation or title of such party or group, as designated by them in their certificates of nominations or petitions, or, if none be designated, then under some suitable title. * * * The ballots shall be on plain white paper, through which the printing or writing cannot be read. The party appellation or title shall be printed in capital letters, not less than one fourth of an inch in height; and a circle one half inch in diameter should be printed at the beginning of the line in which such appellation or title is printed. The names of the candidates shall be printed in capital letters, not less than one eighth of an inch nor more than one fourth of an inch in height and at the beginning of each line in which the name of the candidate is printed a square shall be printed, the sides of which shall not be less than one fourth of an inch in length. The list of candidates for the several parties and groups of petitioners shall be placed in separate columns on the ballots, in such order as the authorities charged with the printing of the ballots shall decide. Each of the columns containing the list of candidates including the party appellation shall be separated by a distinct line.” The act contains certain provisions in regard to printing and furnishing the ballots, the duties of the members of the election board, the arrangement of the place of voting, and other matters which we need not specify. Section 22 contains the following: “On receipt of his ballot, the voter shall forthwith, and without leaving the enclosed space, retire alone to one of the voting booths so provided, and shall prepare his ballot by making in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled or by writing in the name of the candidate of his choice in a blank space on said ticket, making a cross (X) opposite thereto; * * * provided however, if he shall desire to vote for all the candidates of one political party, or group of petitioners, he may place such mark at the appropriate place, preceding the appellation or title under which the names of the candidates of such party or group of petitioners, are printed; and the ballots so marked shall be counted as cast for all the candidates named after that title; provided, further, that the voter may place such mark at the appropriate space preceding the appellation or title of any one party or group of petitioners and may also mark, at the appropriate place preceding the name or names of one or more candidates printed under the appellation or title of some other party, or group of petitioners, and a ballot so marked shall be counted as cast for all candidates named under the appellation or title which has been so marked, except as to the officers to which he has placed such mark preceding the name or names of some other candidate or candidates printed under the title of some other party or group of petitioners, and as to such, it shall be counted as cast for the candidate or candidates preceding whose name or names such mark may have been placed. * * *”

The appellant complains of the ruling of the district court in rejecting as evidence 77 ballots, each of which was marked with a cross in the circle preceding the party appellation, “Republican” or “Democratic,” and in each of which the voter had also placed a cross in the square preceding the name of one or more of the candidates for justice of the peace printed under the other party appellation. The following illustrate the form of the ballots, and some of the various markings so made:

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On none of the 77 ballots were the names of more than three candidates for justice of the peace marked by placing crosses in the squares. It is claimed by the appellee that in all these ballots more names were marked for that office than there were persons to be elected; hence, that the ballots should not be counted for any of the candidates. It will be noticed that section 22 provides three distinct methods of preparing ballots, as follows: (1) By making a cross in the appropriate place opposite the name of each candidate for whom the voter desires to vote; (2) if he shall desire to vote for all the candidates of one political party, or group of petitioners, by making a cross in the appropriate place preceding the appellation or title under which the names of the candidates of such party or group are printed; (3) by making a cross in the appropriate space preceding the appellation or title of any one party, or group of petitioners, and also by making a mark at the appropriate place preceding the name or names of one or more candidates, printed under the appellation or title of some other party, or group of petitioners. The cross is used in all cases to show affirmatively the choice of the voter. When it is placed in the square opposite the name of a candidate, it indicates with certainty that the voter desires his ballot to be counted for that candidate. When it is placed in the circle opposite the title of a party or group, it indicates that the voter wishes his ballot to be counted for all the candidates of that party, excepting as he has otherwise indicated by marking in one or more squares opposite the names of one or more candidates of another party or of other parties. When he has made a cross in the circle opposite the appellation of one party, and has also made a cross in the square opposite the name of a candidate of another party, he has shown a desire to vote for all the candidates whose names are printed under the party appellation marked, excepting the candidate for the office for which he has marked the name of the candidate of another party, and that he wishes his ballot counted for that candidate whose name he has marked. In such case the specific marking controls the general, and the ballot must be counted for the candidate whose name is marked by a cross in the opposite square, and not for the candidate for the same office whose name is printed under the party appellation the circle of which is marked. The provision of the statute applicable to such a case is mandatory and plain. The ballot “shall be counted for the candidate or candidates preceding whose name or names such mark may have been placed.” Where but one candidate for an office is to be elected, no difficulty can arise in counting such a ballot. But section 25 of the act under consideration provides that “if a voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine the voter's choice for an office to be filled, his ballot shall not be counted for such office.” In this case three candidates were to be elected, and it is said that where the voter marked the circle opposite the title of one party, and a square opposite the name of a candidate for justice of the peace of another party, he marked four names for that office; and that, under the provisions of section 25 quoted, his ballot should not be counted for that office. If that is the law, the plain intent of the voter as to one of the candidates, expressed plainly in the manner provided by the law, must be disregarded. In the first illustration of the ballots under consideration which we have given a cross was placed in the circle opposite the word “Democratic.” None of the squares opposite the names of candidates for justice of the peace printed under that appellation are marked, but the square opposite the name of the contestant on the republican ticket is marked. The facts that the party appellation...