Duvall v. Miller , 94 Md. 697 ( 1902 )

The questions in this case arise upon the rulings of the Circuit Court for Prince George's County, on demurrer to the petition filed by the appellants. After stating the qualifications of each of the appellants to be a County Commissioner, and that at the general election held on the 5th of November last they were candidates for the said office against the appellees, the appellants allege in their petition that the appellees were certified as elected by the election officers but that notwithstanding said certificate and return, the petitioners in fact received a plurality of all lawful ballots cast at said election for the legally qualified candidates for said office, and were duly elected over all competitors to said office of County Commissioner; and each of the petitioners charged "that the result certified as aforesaid, was owing to the following irregularities, errors and wrongful acts of the Judges of Election at said election, in not receiving and counting legal ballots offered and cast thereat for each of your petitioners." Then follow three specifications of error, which to avoid repetition will be fully stated hereafter. The petition then proceeds to allege that such "errors, irregularities and wrongful acts," occurred in every election district and precinct in the county, so that between 500 and 1,000 "legal ballots" cast for the appellants were rejected and not counted, and that the same were sufficient in number to elect the appellants; that a count of said ballots was necessary to ascertain the true result of the election, and that notice of intention to contest the election was served on each of the appellees by the appellants within ten days after the announcement of the result of the election. The prayer of the petition is, 1st: That the Court assume jurisdiction of their contest. 2nd: That the appellees be required to answer. 3rd: That the said rejected and uncounted ballots be inspected and counted; and 4th, such other and general relief as the case may require.

The appellees demurred, and assigned as reasons therefor. 1st. That the allegations of the petition are too vague, uncertain and indefinite, and 2nd. That the case made by the petition is insufficient in law. The Court sustained the demurrer and the appellants appealed.

As to the first ground of demurrer. In Leonard v. Woolford,91 Md. 626, this Court has laid down the degree of certainty required in a petition of this kind. It was held in that case that it was not the same as in "pleadings between parties to a suit at law," but that the averments would be "sufficiently definite and precise if they put in issue the fairness and accuracy of the return of the board of canvassers." And in Mann v. Cassidy, 1 Brewster, 27, cited in Leonard v. Woolford,supra, it was further said that "all that the Court can require is, that it shall state in an intelligent manner, and with due precision, such facts as, if sustained by proof, would show that there has been an undue election and false return."

Now it is set forth in this petition that between five hundred and one thousand legal ballots cast for the petitioners, were not counted for them; and if they had been, the result of the election would have been changed. It is contended that it was error to have denominated them as "legal ballots," because that was to aver what was only matter of law. But conceding this, it does not follow that the element of fact contained in the averment would be in consequence eliminated. There would still remain the statement, the allegation of fact, that so many ballots were not counted. The demurrer would concede this fact, but not that they were "legal" ballots. On demurrer only such matters of fact as are well pleaded will be taken to be true.

The naked allegation, (that so many ballots were not counted), would not be sufficient to support the petition; because if it stood alone, there would be no statement of fact from which it might appear that the ballots were legal ballots. It is only on account of the rejection of legal ballots that the appellants could have the right to complain. There are other averments however in the petition which must be considered in this connection. The reasons why these ballots were rejected are also set forth. It is charged that it was because of the several matters of fact, contained in and particularly set forth in Clauses A, B and C of paragraph four of the petition. If the facts set forth in these clauses are true, and are not sufficient in law to justify the action of the judges in rejecting the ballots, then the appellants have made out a case, upon which they would be entitled to the relief prayed for in the petition. The averments of the petition are therefore, in our opinion sufficiently definite and precise, to put in issue the fairness and accuracy of the returns of the Judges of Election.

1. The next question presented by the demurrer is, do the facts alleged in Clauses A, B and C of paragraph 4, show that the judges committed an error in rejecting the ballots. Clause A, is, in effect, that between two hundred and four hundred ballots were wrongfully rejected, "because a portion of the cross-mark of the voter in one or more of the spaces provided on the official ballot for the same, slightly extended beyond the lines bounding said space or spaces, without, however in any manner furnishing a clue to the identity of the voter voting the same or any doubt as to his intentton."

It was contended at the argument on one side, and denied on the other, that, by a proper interpretation of the statute, to constitute a legal ballot, the whole of the cross-mark must bewithin the space provided for the same on the official ballot; and that the ballot will be invalid and should not be counted if any portion of the cross extended beyond the lines of that space.

The statutes applicable are found among the several sections of Art. 33, of the Code of Public General Laws, as amended by the Act of 1896, chap. 202, and by the Act of 1901, chap. 2. Sec. 49 makes it the duty of the supervisors to prepare the ballot, directs what each shall contain, and makes all other ballots void and not to be cast or counted. Sec. 50 provides what the form and arrangement of the ballot shall be, and among other things prescribes, that, "ballots shall be so printed as to give to each voter a clear opportunity to designate by a cross (X) in a square at the right of the name of each candidate." Sec. 61 provides how it shall be voted; the voter "shall prepare his ballot by marking with an indelible pencil after the name of every person or persons for whom he intends to vote, and to the right thereof,in the blank space provided therefor, a cross — for example, (X)." The "blank space" referred to in this section, is therefore the "square" mentioned in sec. 50. By sec. 66, the judges must reject, all ballots "deceitfully folded together," all which do not have endorsed thereon the name or initials of the judge who held the ballots; and "if the voter has marked more names than there are persons to be elected to an office, or if there shall be any mark on the ballot, other than the cross-mark in a square opposite to the name or names of any candidate written by the voter on the ballot as provided in sec. 49, his ballot shall not be counted." From this statement of the law, it must appear, and we do not understand that it was controverted in the argument, that if effect is to be given to the words of the statute according to their plain import, all ballots must have the cross-mark wholly in the square. Every provision of the Act touching the matter seems to keep this requirement in view. The ballot must be prepared with a square, printed to the right of each candidate or question to be voted for, so that each voter shall have "a clear opportunity" to designate his choice, by "a cross in a square;" when the voter prepares his ballot he shall mark it "in the blank space provided;" and when the count is made, no ballot shall be counted that contains any other mark other than the cross in the proper square. It would seem to be clear, that if the cross be not wholly within the square, it is then not "in" it, but only partly in and partly outside. There are no words in the Article, other than those quoted, that either directly or by construction can be held to import that the presence of part only of the cross in the square would meet the requirements of the statute. Unless by a forced construction, or by reading something into the statute that is not now there, can it be held that if the voter's choice be capable of ascertainment from what he has actually done, his ballot shall be counted if he has acted honestly and made a bona fide attempt to follow the provisions of the law. That rule has been adopted in some cases elsewhere, as will be noticed hereafter, but in all such cases there was some positive provision of the law, to warrant its adoption. Here there is nothing to qualify the words used in the provisions we have cited. These words are precise, clear and unambiguous, and unless, as we have said, something else can be read into the statute that does not now appear in it, it is difficult to determine that the Legislature meant anything but what it has plainly expressed. If we are correct in this, there is no room left for construction. Courts cannot even to give effect "to what they may suppose to be the intention of the Legislature, put upon a provision of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the Act."Maxwell, c., v. State, 40 Md. 293.

But it is contended on the part of the appellants that, if the provisions in respect to marking the ballot be interpreted in connection with other provisions of the Article, at the same time keeping in view the objects and spirit of the legislation, and observing well recognized rules of interpretation applicable in such cases, it will not be necessary nor improper to hold that they require no more than that the cross shall be substantially in the square. Or in other words that though it may appear that the cross is only partly in the square, yet if it does not appear that the voter has been actuated by improper motives, but has used an honest effort to comply with the provisions of the law, and has performed the act of marking irregularly only by reason of his blundering or ignorance or innocent error, and the voters choice can be fairly ascertained, then the ballot should be counted if the cross is substantially within the square. This contention involves an inquiry into the objects and purposes of the legislation and the general scheme that pervades the system, which the Legislature has provided for the regulation of the elective franchise. It seems to be clear that the fundamental principles that differentiate the present system from that which preceded it is the establishment and maintenance of the secrecy of the ballot; whereby the voter shall be compelled to express his choice in such a manner that it is impossible for it to be known for whom he has voted. The objects underlying the Act are to preserve the purity of the ballot, and to protect the voter in the free and untrammelled exercise of his right to vote according to the suggestions of his preferences or his reason, without interference by bribery or intimidation or other improper means. To these ends the statute provides that the ballot shall be prepared by the public authorities, in a form particularly prescribed; it requires that the voter shall cast it in the manner also particularly described and that his choice shall be determined by certain markings upon the ballot. But little if anything is left for the decision of the judges in respect of determining the voter's intention. It is apparent we think that the statute contemplates that the marking of the ballot itself shall be the index of the voter's intention. There are no provisions like those to be found in the statutes of some of the other States of the Union. While the statutes in some of the States require the voter to express his choice in the manner designated by the law, yet they also permit the Judges of Election to examine the ballot and count it, whenever by any means it can be determined what the intention of the voter is; and in such States the provisions as to the marking the ballot have very properly been regarded as directory only. In Parker v. Orr, 158 Ind. 614, the Indiana statute required that the voter should mark his ballot with a cross in the appropriate space or margin; but there was also another provision which plainly meant, the Court said, "that if the voter's choice could be ascertained from his ballot, it shall be counted if it could be done consistently with other provisions of the object of the Act." It was therefore held in that case that "the voter's intention must be manifested by a cross, substantially in the place designated, which the Judges of Election can see was an honest attempt to follow the directions of the law." We have cited this case among many others of the same class to illustrate more clearly our meaning in the case at bar. We do not mean to express any approval or disapproval of what was there said, except that the decision of the Indiana Court was probably a fair construction of a statute which, although it required that the voter shall prepare and cast his ballot in the mode particularly described, yet contained provisions that permitted the Election Judges to count an irregularly marked ballot whenever the choice of the voter could be fairly ascertained. Our statute however does not contain any provision that authorizes the election officials to attempt to ascertain the intention of the voter in any other manner than by the application to the ballot of the directions contained in the law. Section 66 as it read under the Act of 1896 contained a clause providing that "if for any reason, it is impossible to determine the voters choice for any office to be filled, his ballot shall not be counted for that office." This clearly indicated that the judges had power to make inquiries as to the voters intention, though his ballot might not in all espects conform strictly to the requirements of the law. Under such a provision we might have very easily considered this case as within the rulings of Parker v. Orr, 158 Ind. 614; so far at least as to hold that if the cross were "substantially" within the square, and the irregularity was due only to blundering or ignorance, the ballot should be counted, if the intention could be fairly ascertained. Such a construction would be only carrying out a rule that has been widely adopted, that all reasonable intendments must be made in favor of the enfranchisement of the voter. Sec. 47, L.R.A. 812, where will be found the citation of numerous authorities.

But the provision that permits the election judges to attempt to ascertain the intention of the voter otherwise than by a compliance with the strict requirements as to the marking the ballot, was left out of the law by the Act of 1901, ch. 2. The clause in sec. 61 of the Act of 1896, wherein it was declared that the provision as to the instrument for marking the ballot is directory, is now also omitted. That clause, as long as it formed part of the statute, it is evident would indicate without regard to any other reason therefor, that the Legislature intended that all the provisions as to marking the ballot should be mandatory, except as concerned the instrument used for the purpose of marking; and by the repeal of the clause, it would seem to follow that it was intended that the use of the indelible pencil should also be taken as mandatory. So that as the law now stands the provisions for marking the ballot must be regarded, not only in the spirit, but by the letter of the law, as mandatory and obligatory alike upon voters and judges. But this is not all. By sec. 6, sub-section 66 of Act of 1901, ch. 2, (being sec. 66 of Art. 33), as has been stated, all discretion as to judging of the voter's choice when the law has not been observed is taken away. They are now required by that section to "reject" all ballots deceitfully folded, or without the initials of the judge, and all ballots on which too many names are marked; and all upon which "there shall be any mark on the ballot other than the cross-mark in the square opposite to the name of a candidate, or other than the name or names of any candidate written by the voter on the ballot as provided in section 49," "shall not be counted." As to these ballots the judges are granted no discretion. They must be rejected. They include all kinds of ballots except those that strictly conform to the provisions of the law; and with these, judges cannot do anything but reject. All ballots that contain any mark but those authorized by law to be upon them shall be rejected and not counted.

Thus it appears that the Legislature must have intended a strict observance of the essential requirements of the law. For errors, accidents or mistake of the voter, there was provided a remedy, (sec. 63); the voter may return his spoiled ballot, and receive another. A clear and definite rule was laid down by which the voter's intention could be indicated, and that rule must be observed. As was said in Bechtel v. Albin, 134 Ind. 203, "the voter has no greater right to stamp," (or mark) "his ballot in a manner different from that prescribed, than he has to decline to go in the booth to stamp it." Under the Act of 1901, the intention of the voter must be made to appear by the means prescribed by the law, and cannot depend upon the ability of the judges otherwise to ascertain the voter's choice. It is the expression of his choice in the manner provided by statute and in no other way. The whole scope of the law shows that this was the purpose. But little is left to the discretion of the officers of election. All the details of the voting, the preparation of the ballots, and the time, place and manner of supplying them to the voter, the several matters and things the voter shall do, the mode of placing them in the box, their counting and rejection, and the final disposition of them, are carefully and minutely prescribed. There is nothing in the Act about distinguishing marks, except that no other than the lawfully prescribed marks shall be on the ballot, sec. 66. It is possible that the Legislature deemed it safer that the ballots should be protected by fixed rules than by permitting the judges to determine in any case whether a defective ballot was yet good enough to be counted. For instance, if the contention of the appellants be accepted, what rule would or could be laid down for the guidance of the Judges of Election? If part of the cross can be outside, how much or what part must be within the space? How are "distinguishing" marks to be detected? Is the judge at one poll to adopt one rule, and another judge a different; so that a ballot shall be rejected here, and another exactly similar be counted elsewhere? Shall we decide therefore that a fixed system of voting is less conducive to the enfranchisement of the voter than one where discretion is entrusted to officials, which may be exercised differently throughout the State, with the result that a more stringent rule shall apply in some places than in others? It is not for this Court to make this decision. It is quite enough for us to say that in enacting the Act of 1901, the Legislature has so determined. That Act seems to indicate clearly that the Legislature contemplated that the intention of the voter should be ascertained by the application to the ballot of the directions contained in the statute. None of these directions are more essential to the system established by the statute than those which direct the manner in which the voter shall express his choice. They are therefore mandatory and are binding upon all.Hope v. Flentge, 47 L.R.A. 818; s.c. 140 Mo. 390; Curran v.Clayton, 86 Me. 42; Taylor v. Bleakley, 55 Kan. 1; Sego v. Stoddard, 136 Ind. 297; Oatman v. Fox, 114 Mich. 652.

We are of the opinion therefore that the statute requires the cross-mark to be within the square, and there is nothing either in the spirit of the Act or in other provisions that would warrant us in placing any other interpretation upon the language employed, than that which it plainly imports. It follows, that the facts set forth in Clause A of paragragh 4 of the petition are not sufficient in law to sustian the petition.

2. The second ground, in Clause B, is, that certain ballots were rejected because they were not folded in the same way "they were, when received by the voters, but were so folded as not to display the marks thereon, or the name or names of the candidates, voted for, the back of said ballots being folded inward and a blank face exposed to view."

By sec. 52, Art. 33, the ballots shall be "so folded in marked creases that no part of the marks or printing thereon, excepting that upon the back and outside, and that upon the detachable stub or coupon shall be visible, c." By sec. 61, the judge holding the ballots "having first written in ink, the voters name and number upon the coupon attached to one of them, shall deliver said ballot to the voter, after having likewise written in ink his own name or initials upon the back thereof." "Before leaving the voting booth or compartment the voter shall fold his ballot without displaying the marks thereon, and in the same way it was folded when received by him, and he shall keep the same so folded, until he has voted, and so that the signature or initials of the judge from whom he received it and the name and number written on the coupon thereof but nothing else thereon, may be seen." The judge at the ballot-box, when he has received the ballot, "shall deposit his ballot in the box, having first detached therefrom its coupon." And by sec. 66, all ballots "deceitfully folded together," shall be rejected.

The averment of the petition is that these ballots were cast, but were not counted by the judges. They were folded so that only a blank back was exposed to view. On the side that ought to have been exposed, were or ought to have been in print, the words "Official Ballot for" (the polling place), and the signature of the President of the Board of Supervisors, and also in writing the name or initials of the Judge of Election.

It was absolutely necessary that the name or initials of the judge should appear to the judge who received the ballot. In 61st sec. it is expressly provided that "no ballot without the endorsement of the name or initials of the judge thereon as hereinbefore provided, shall be deposited in said ballot-box." The petition contains no averment that the name or initials were or were not endorsed on the ballots in the proper place, but it is plain that if it was so folded as to show only a "blank back," it was impossible for the judge who received the ballots to inform himself, in any lawful manner, whether or not there was such an endorsement. He could not lawfully unfold the ballots, for that would expose to his view for whom the voter proposed to vote; nor could he treat them as "rejected," or "spoiled" ballots, as those words are used in the law. It is clear they should not have been deposited in the ballot-box. But by the hypothesis of the petition, they were deposited. If it afterwards appeared when the ballot-box was opened that the initials or name were not endorsed on the ballot, as required by the law, then undoubtedly they should not have been counted, in compliance with the 66th section, that provides, in plain terms, that "ballots which do not have endorsed thereon the name or initials of the judge who held the ballots" shall be rejected. On the other hand, if it be assumed that the initials or name are in fact endorsed upon the ballots, the inquiry is presented, does the case then fall within the provision of the 66th section, that "ballots which are deceitfully folded together," shall be rejected? If the word "together" were not in the clause there would be no question about the matter. That word, as used, might possibly be interpreted so as to indicate that it was the intention of the Legislature that the clause in question should have reference only to cases where two or more ballots were folded together. But when it is borne in mind that one of the most important steps in protecting the official ballot and in enabling the judges to be assured of the identity of the ballot offered by the voter with that received by him is found in the method of folding the ballot, that interpretation is not reasonable. There are provisions which are intended to protect the physical form of the ballot from the time it is prepared by the Supervisors, until it has been counted. It must be folded in a particular manner, it must be endorsed on the back that will then be exposed; it is delivered to the voter at the moment he goes nto the voting booth, and when returned it must still be olded "in the same way it was when received by him." In view of all these stringent requirements, it is difficult to understand how more than one ballot could get into the voters hands, but it is by no means difficult to perceive how a neglect of the provisions with respect to folding, might be availed of, by designing persons, to destroy the secrecy and the purity of the ballot. It is not reasonable to suppose that the framers of the Act in the adoption of this clause intended its application to be limited to cases where there were two or more papers folded together. The word, "together," seems to be a relic of the statute in force before the adoption of the present system. In the Code of 1888, Art. 33, sec. 65, the words, taken from the Act of 1805, chap. 97, are, "if any two or more of such ballots or papers be deceitfully folded together." The evil at that time, when each voter supplied his own ballot and was left free to deposit in the ballot-box any paper he chose to deliver to the Judges of Election, was the folding together of more than one ballot so that the number of ballots in the box would be increased at the time of counting. Under the present system however the purpose of the clause seems to be to insure the proper folding of the ballot, so that the Judges of Election may be assured that the true ballot is deposited. If the ballot therefore is not folded when returned by the voter to the judges in the same manner as it was when received by the voter, it is illegally and therefore deceitfully folded, and by the terms of the statute should be rejected.

The third error assigned in Clause C of paragraph 4, is that the judges rejected ballots on which the voters "had respectively marked more names thereon than there were persons to be elected to an office, which office was other than that of County Commissioner." The provision of the statute is too clear upon this point to require discussion. It is provided by sec. 66, "if the voter has marked more names than there are persons to be elected to an office, the ballot shall not be counted." This provision is so explicit, as to leave no room for construction.

Finding no error in the ruling of the Court below, the order must be affirmed.

Order affirmed with costs to the appellees.

(Decided March 7th, 1902.)

BOYD, SCHMUCKER and JONES, JJ., dissent as to clause A, of paragraph 4 of the petition and concur with the rest of the opinion.