Crosby v. Libby , 114 Me. 35 ( 1915 )

Bird, J.

This is an appeal from the judgment of a single justice rendered upon a petition brought under §§ 70-74, c. 6, R. S., to determine whether the petitioner, at the State election held on September 14, 1914, was duly elected county commissioner of the County of Kennebec for the term beginning January 1, 1915, or whether the defendant was so elected.

The name of the petitioner was printed upon the official ballots. Arthur W. Leonard was also duly nominated for the office of county commissioner and his name printed upon the official ballots, but on the thirteenth day of September, 1914, after distribution of the ballots by the Secretary of State as provided by § 16, c. 6, R. S., Mr. Leonard died and the respondent, Morrison Libby, was duly nominated to supply the vacancy and the nomination certified to the Secretary of State, in accordance with R. S., c. 6, §§ 6 and 8.

The printing of new ballots being, as admitted, impracticable, slips containing the new nomination were printed, under the direction of the secretary of state (R. S., c. 6, § 8) and by him distributed to the clerks of the cities towns and plantations of Kennebec County with instructions, addressed to the presiding election officers of the several voting places therein, directing them “to place on the official ballots the printed slips containing the new nomination aforesaid over the name of the above mentioned Arthur W. Leonard, such slips to be placed upon every ballot before the same has been given into the hands of the voter.” Out of the compliance, or attempted compliance, apparently, of the election officers with these instructions arise questions affecting by far the larger number of ballots now in dispute. The difficulty confronting us as to these ballots was occasioned by the careless manner in which some of the slips were “pasted” upon sundry ballots.

In announcing his conclusions the sitting justice declared he had been guided by the following rules:

“Rule i. All ballots were counted wherever the title to the office could be discovered by reading the letters that appear above the sticker.

“Rule 2. All ballots were counted when the designation of the office to be filled, though fully covered by the sticker, could be clearly read through the sticker.

“Rule 3. All ballots were counted, although the sticker placed in the corresponding column at the left of the petitioner’s name extended over the line and covered the whole or a part of said petitioner’s first name.”

As most of the ballots disputed were disposed of pursuant to these rules and the exhibits are arranged accordingly, we will first consider the ballots allowed or rejected under these rules.

The ballots allowed by the sitting justice, twenty-three in number under Rule 1, and those admitted by him under Rule 2, one hundred and ninety-five in number, involve the obliteration in part, or in whole, of the designation of the office. Premising that we do not consider the word “For” preceding the title of the office as essential or within the requirement of the statute, we will consider the ballots admitted under Rules 1 and 2 of the sitting justice together.

It is agreed by counsel that the slips, the application of which, caused the obliteration, in whole or in part, of the designation of office were applied by election officers acting upon the order of the Secretary of State.

Among the directions for the preparation and distribution of ballots, found in R. S., c. 6, it is provided in section 10 that “Every general ballot . . . shall contain the names ... of all candidates whose nominations for any office specified in the ballot have been duly made and not withdrawn . . . and the office for which they have been severally nominated .... A blank space shall be left after the names of the candidates of each different office in which the voter may insert the name of any person, for wffiom he desires to vote as candidate for such office.

In section 8 of the same chapter provision is made for supplying a vacancy caused by the' death or withdrawal of a candidate and printing upon the ballots the name “supplied for the vacancy” “or, if the ballots have been printed, new ballots containing the new nomination shall, whenever practicable, be furnished, or, slips containing the new nomination shall be printed under the direction of the Secretary of State, which may be pasted in proper place upon the ballots and thereafter shall become part and parcel of said ballots as if originally printed thereon.” That is, the name borne upon the slips, not the slip, shall become part of the ballot as if originally printed thereon.

Neither section eight nor section ten indicate what-is the “proper” place for the pasting of the slips. The former simply makes the requirement and the latter provides for a blank space after the names of candidates in which the voter may fill in the name of any person for whom he desires to vote. Section twenty,-four of chapter 6 clearly shows that this space is not appropriate for stickers unless the name above the space is otherwise erased. But somewhat minute directions are given the voter in section twenty-four of chapter 6 indicating the manner in which he shall prepare his ballot. After providing for a change in candidates by erasure and “filling in,” under the name erased, the name of the candidate of his choice, it also indicates how strips or stickers may be used as follows: “Or if the voter places and sticks on and over the name or namesi of any candidate or candidates for any office or offices, a small strip or strips of paper, commonly known as a sticker or stickers, bearing thereon a name or names other than the name or names of the candidate or candidates so erased or covered up. the name or names of such candidate or candidates so covered shall be considered to be erased from the ballot, and the person or persons whose name or names shall so appear on said strip or strips of paper so placed and stuck on the ballot, shall be deemed to be voted for by the voter as a candidate or candidates for such office or offices.” The first method requires erasure and substitution as two distinct acts while by the second method one act constitutes both erasure and substitution.

It may be objected that strips or stickers are not slips, but we think they are. A strip is a slip. Johnson’s Diet.; Webs. New Intern. Diet.; Standard Diet.; The Century Diet. A sticker is a gummed slip or strip. The words are to be construed according to-the common meaning of the language.

We think it requires no argument to reach the conclusion that the proper place for a slip printed by the Secretary of State is that wherein the strip must be placed by the voter pursuing the second method, that is on and over the name of the candidate deceased or withdrawn and that the rules for counting such ballots when the sticker is attached by the voter apply equally when it is attached by direction of the Secretary of State.

The sitting justice evidently sought to apply the rule laid down in Bartlett v. McIntire, 108 Maine, 161, which was followed in the later case of Pease v. Ballou, 108 Maine, 177, and has since been recognized as the established rule of law in this State. Bartlett v, McIntire, concerned ballots to which strips had been attached by voters. In it, it was said that “The designation of the office is an indispensable part of any ballot. There must be an office to be filled as well as a candidate to fill it, and if a sticker entirely covers the designation of office, or if the designation be erased, the ballot cannot be counted. But when a sticker is so placed that enough of the top parts of the letters of the designation remain so that the eye can see what the office was the vote should be counted.”

The case of Bartlett v. McIntire marked a distinct departure of the court as then constituted from the somewhat narrow rules theretofore adopted in construing the ballot law, was the result of a conviction that a more broad and reasonable interpretation should be given and the opinion was drawn in absolute conformity to the rules laid down by the court as the actual count progressed. But we-are strongly impressed that the rule there laid down as to the designation of office should be still further broadened and liberalized.

It must be conceded that the designation of the office, as well as. the candidate, must appear upon the ballot as printed by the Secretary of State, such being the positive requirement of statute. But conceding this, is the rule that when by the use of a strip or sticker part of the designation of the office so printed is covered, the ballot is to be counted when and only when “enough of the tops of the letters of the designation remain so that the eye can see what the office was,” (noting that there is no provision of statute for the erasure of the designation of office) a certain and workable rule which will lead honest minds to the same conclusion? All such must know from other ballots or, indeed, from the same ballot what the designation partly covered was, for the like space in each column is devoted to the same office and its candidate or candidates. Will not knowledge of this fact subconsciously lead one to count, while another fully conscious of the fact refrains? It seems a rule of doubtful reasonableness when honest minds may so differ and the right of franchise of the voter made to depend upon the number on the one hand of letters exposed and on the other of letters concealed or erased and the degree to which the former are apparent, varying in many cases by the merest fraction of an inch. As already stated it must be as absolutely known from other ballots and like parts of the same ballot as any fact may be known, that the place in or upon which a strip or slip is applied is devoted to the candidacy of a certain office whether the investigator is a primary counting officer or the court or any unofficial person of ordinary intelligence. Is not the intention of the voter clear who accidentally covers the designation of the office in whole or in part by a strip, when the designation of office covered must be perfectly well known?

Given then a ballot properly prepared by the Secretary of State with the designation of the office and the name of the candidate,- the vote should be counted when from inspection of other parts of the same ballot and of other ballots cast at the same election, it is apparent what the designation of office covered is. When the designation of the office has been placed upon the ballot by the Secretary of State in conformity with law and it has been covered by the voter in applying the strip or sticker, it cannot be contended that such voter applying the sticker intended by the same act to render his vote void. Is the presence of the designation of the office upon the ballot less certain and known when wholly covered than when parts of its letters are disclosed or less certain when the parts exposed cannot be read than when they can be read?

The ballots in question under the first two rules of the sitting justice, twenty-three and one hundred ninety-five in number respectively are allowed and counted for respondent.

The ballots of the third class, considered by the sitting justice under Rule 3, to the number of three hundred and thirty-seven, are those whereon, as claimed, the slips bearing the name of Morrison Libby extended over into the next group or column to the right, in which the name of petitioner appeared, and covered in part, and, in one instance the whole, of his Christian name “Howard.”

It is admitted that Howard B. Crosby and Morrison Libby are the only men of those names in the County of Kennebec and that there are no men in the county by the name of Morris Libby or Ward B. Crosby.

The intent of the Australian ballot law was not “to limit or defeat the sacred right of franchise by establishing a method so intricate or complicated as to circumvent the intention of the honest voter. That intention must of course be expressed in compliance with statutory requirements but those requirements are to be interpreted broadly and reasonably. Sec. 27 provides that 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 that office. If the converse of this be thereby implied, namely, that all ballots shall be counted where it is possible to determine the voter’s choice, a wide latitude would be given to the canvasser. However it must be a legally expressed choice with presumptions in favor of the voter rather than against him.” Bartlett v. McIntire, 108 Maine, 161, 166. And in the same case it is said on page 171 that in order that a distinguishing mark be effective to cause the rejection of a ballot it must be established from an inspection of the ballot “that it was made intentionally and not accidentally.” See Libby v. English, 110 Maine, 449, 454. Pub. Laws, 1911, c. 71.

The name of Howard B. Crosby as candidate for the office of county commissioner was printed upon the ballot in the second column or group from the left by the Secretary of State. The act, whether of the voter or of the election officer, while applying the strip or slip over the name of the deceased candidate, in the first or left hand column, by which it was placed over the whole or part of the Christian name of Howard B. Crosby was casual and accidental so far as inspection of the ballot reveals. It is equally as idle to assume that the voter or an election officer in applying a strip or slip in one column intended to cover part of the name in the next column as it is to assume that the voter or election officer purposely covered with a sticker the designation of office. Such an act on the part of the election officer would have been fraud which is not to be presumed and which should be ineffectual to affect the rights of the voter.

Assume a voter, intending to vote for the candidates in the first or left hand column, places a sticker over the name of the candidate in that column covering as well the Christian name of the candidate in the column next to the right, or second column and that he then changes his purpose, and, deciding to vote for the candidates in the second column, makes the appropriate mark in the square at the head of that column. Can it be held an intentional erasure of the Christian name in question ? Does an inspection of the ballot reveal such intent ? The name of the candidate in the second column was printed there by the proper official and remains except that part of the name is casually covered. There can be no question of the voter’s intent.

A uniform rule applicable in all cases whether a sticker is applied b}’’ an official or a voter is desirable that confusion arising from the existence of one rule in the one case and a different rule in -the other may be avoided. No possible advantage is conceivable from such diversity.

This conclusion is in harmony with the rule laid down in Bartlett v. McIntire as to “incomplete names” by reason of “broken stickers.” In the prseent case, however, it is known to a certainty that the full name of Howard B. Crosby, although accidently partly concealed by a slip or strip applied in another column, was printed upon the ballot, while in the case of the broken sticker the portion of the name lost is inferred.

The case of erasure of part of the name of a candidate by a strip manifestly applied in the same column in which the name is printed, or by pencil, will be considered when occasion requires.

Of the three hundred and thirty-seven ballots in the class now under consideration, six must be rejected as bearing distinguishing marks, the nature of which it will be profitless to discuss. The remainder of these ballots three hundred and thirty-one in number must be counted for the petitioner.

Sixteen ballots, rejected for various reasons by the sitting justice, are exhibited and to his action in so doing counsel make no serious objection. We have already rejected six, in considering class three and find nine others which should be rejected making a total of fifteen.

Six other ballots claimed by petitioner are presented. As no objection is urged for their rejection in argument, or brief, by counsel for respondent, they are counted for petitioner. One other ballot claimed for petitioner and clearly defective is rejected.

Twenty-five ballots apparently counted for respondent remain to be considered. The objections may be roughly classified as follows: — fourteen ballots on which all of the letters in whole or in part of the name of Arthur W. Leonard appear above the sticker bearing the name of Morrison Libby, thus enabling the name of the former to be read and nine ballots whereon the sticker exposes part only of the letters of the name of the deceased candidate, but not enough to enable his name to be read. We think in considering these ballots, the intention of the voter as gathered from an inspection of the ballot should control, unless non compliance with some positive provision of statute forbids. The ballot should be counted where it is possible to determine the voter’s choice legally expressed. The presumption is in his favor. Section 24 of c. 6, R. S., provides two methods, as already seen, by which the voter may substitute a new candidate for one printed upon the ballot.

Under the first method the drawing of a pencil mark through the name of the candidate discarded has been considered as a sufficient erasure, although the primary meaning of erasure is to rub out or obliterate. To erase is synonymous with to expunge or to cross out. When a name is crossed out by the pencil, it is seldom that the name cannot be read. Yet the erasure is held complete. That the strip should be applied with mathematical precision can hardly be intended or that complete obliteration be indispensable in the second method more than in the other. In the second method the use of the strip in itself indicates an intention to vote for a substitute candidate. If, however, the strip is so applied that the name of both the original candidate and the substitute appear in full under the designation of the office each is equally entitled to be counted and neither can be. R. S., c. 6, § 27. But where the strip is so placed that a portion of the original name is covered, we think the name so covered must be regarded as erased although it can be read. There remain two other ballots, upon one of which a cross was made in the squares above two columns or groups with clear indications of an attempt to erase that in the square other than that above the name of respondent and one in which, by reason of a broken sticker, the last syllable only of the Christian name of respondent appears. The twenty-five ballots are counted for respondent.

Our conclusions may be tabulated as follows:

Number of ballots rejected........................ 16

Number of ballots for Morrison Libby now undisputed 5742 Number counted for Libby of the disputed.......... 243 5985

Number of ballots for Howard B. Crosby now undisputed ........................................ 5489

Number counted for Crosby of the disputed......... 337 5826

Total ...............'......................... 11,827

Libby’s plurality, 159.

It is therefore held that the respondent having received a plurality of all the ballots cast for county commissioner for the County of Kennebec at the State election held on the fourteenth day of September, 1914, was duly elected county commissioner of said county for the term beginning January 1, 1915, and is entitled by law to the office now held by him.

Petition dismissed with costs for respondent.