Wimmer v. Eaton

• Decision Date: 04 October 1887
• Citation: 34 N.W. 170,72 Iowa 374
• Parties: WIMMER v. EATON.
• Court: Iowa Supreme Court

72 Iowa 374

34 N.W. 170

WIMMER

v.EATON.

Supreme Court of Iowa.

October 4, 1887.

Appeal from district court, Allamakee county.

This is an action to test the right of defendant, M. W. Eaton, to hold the office of township trustee. The district court entered judgment for plaintiff, and defendant appealed.H. H. Stilwell, for appellant.

M. B. Hendricks, for appellee.

REED, J.

At a general election in the township in which the parties reside, 510 ballots were cast for the office of township trustee. Of that number 249 were cast for defendant, 170 bore the name of E. Wimmer, and 91 that of F. Wimmer. Plaintiff's name is Edward Wimmer, and he claimed that all of the ballots bearing those names should be counted for him. The canvassers, however, counted for him only those ballots which bore the name of E. Wimmer, and they issued to defendant the certificate of election. The evidence given on the trial shows that plaintiff was nominated as a candidate for the office by a convention of the political party to which he belongs, and that the ballots which bore the name of F Wimmer, as well as those which bore the name of E. Wimmer, were cast by members of that party; also that the ballots were printed by a person who knew that plaintiff was a candidate for the office, but understood at the time that his name was F. Wimmer; also that it was discovered after the election had been in progress for some time that this mistake had been made in printing his name, and that the ballots subsequently cast were corrected by writing thereon the letter E, as the initial letter of his Christian name. It was also proven that no person by the name of F. Wimmer who was eligible to the office resided in the township. A number of the electors were examined as witnesses, and, against defendant's objection, were permitted to testify that the ballots cast by them bore the name of F. Wimmer, and that they supposed at the time that that was plaintiff's name, and that it was their intention to vote for him.

The first question which arises on the record is whether resort may be had to other evidence than the ballot cast by the elector in ascertaining his intention. If the ballot is found to be perfect, that is, if it expresses a certain intent by the elector, it must be accepted as the exclusive evidence of his intent. Thus, if it bears the name of a person who is eligible to the office voted for, it affords the most satisfactory evidence that it was the elector's intention to vote for that person; and it would be contrary to all the analogies of the law to permit proof by extrinsic evidence of a contrary intent. But when it is apparent that the intent of the elector is imperfectly expressed by the ballot, as when the person intended to be voted for is not certainly identified by it, the true rule is, we think, to admit extrinsic evidence in aid of such imperfection. It often happens that the elector is ignorant or mistaken as to the Christian name of the person for whom he wishes to cast his ballot. In such cases the Christian name is either omitted entirely from the ballot, or wrongly written thereon. Now, if no evidence except the ballot could be resorted to in such cases, in determining the intent of the elector, it is manifest that the privilege of the elective franchise would be defeated by the...