names of two persons for that office, it was held that it must be rejected for ambiguity. It has been decided, however, that if a voter shall write a name upon a printed ballot, in connection with the title to an office, this is such a designation of the name written for that office as sufficiently to demonstrate his intention, even though he omit to strike off the printed name of the opposing candidate. The writing in such a case, it is held, ought to prevail as the highest evidence of the voter's intention, and the failure to strike off the printed name will be regarded as an accidental oversight.2 The name on the ballot should be clearly expressed, and ought to be given fully. Errors in spelling, however, will not defeat the 1 People v. Seaman, 5 Denio, 409. See also Attorney-General v. Ely, 4 Wis. 420; People v. Loomis, 8 Wend. 396; People v. Cook, 14 Barb. 259, and 8 N. Y. 67; State v. Griffey, 5 Neb. 161. Such a vote, however, could not be rejected as to candidates for other offices regularly named upon the ballot; it would be void only as to the particular office for which the duplicate ballot was cast. AttorneyGeneral v. Ely, 4 Wis. 420; Perkins v. Carraway, 59 Miss. 222. If the name of a candidate for an office is given more than once, it is proper to count it as one ballot, instead of rejecting it as illegally thrown. People v. Holden, 28 Cal. 123; State v. Pierce, 35 Wis. 93. 2 People v. Saxton, 22 N. Y. 309; Brown v. McCollum, 76 Iowa, 479. This ruling suggests this query: Suppose at an election where printed slips containing the names of candidates, with a designation of the office, are supplied to voters, to be pasted over the names of opposing candidates, - as is very common, -a ballot should be found in the box containing the names of a candidate for one office, say the county clerk, with a designation of the office pasted over the name of a candidate for some other office, say coroner; so that the ballot would contain the names of two persons for county clerk, and of none for coroner. In such a case, is the slip the highest evidence of the intention of the voter as to who should receive his suffrage for county clerk, and must it be counted for that office? And if so, then does not the ballot also show the intention of the elector to cast his vote for the person for coroner whose name is thus accidentally pasted over, and should it not be counted for that person? The case of People v. Saxton would seem to be opposed to People v. Seaman, 5 Denio, 409, where the court refused to allow evidence to be given to explain the ambiguity occasioned by the one name being placed upon the ticket, without the other being erased. "The intention of the elector cannot be thus inquired into, when it is opposed or hostile to the paper ballot which he has deposited in the ballot-box. We might with the same propriety permit it to be proved that he intended to vote for one man, when his ballot was cast for another; a species of proof not to be tolerated." Per Whittlesey, J. See also Newton v. Newell, 26 Minn. 529. The case of People v. Cicott, 16 Mich. 283, is also opposed to People v. Saxton. In the Michigan case, a slip for the office of sheriff was pasted over the name of the candidate for another county office, so that the ballot contained the names of two candidates for sheriff. It was argued that the slip should be counted as the best evidence of the voter's intention; but the court held that the ballot could be counted for neither candidate, because of its ambiguity. And a like rule is laid down as to a provision in the Illinois Constitution which requires that, if more persons are designated for any office than there are candidates to be elected, such part of the ticket shall not be counted for either. This provision is obligatory where only one name is printed on the ticket, and it remains unerased and another is written in. Kreitz v. Behrensmeyer, 125 Ill. 141. ballot, if the sound is the same; nor abbreviations,2 if such as are in common use and generally understood, so that there can be no reasonable doubt of the intent. And it would seem that where a ballot is cast which contains only the initials of the Christian name of the candidate, it ought to be sufficient, as it designates the person voted for with the same certainty which is commonly met with in contracts and other private writings, and the intention of the voter cannot reasonably be open to any doubt.3 1 People v. Mayworm, 5 Mich. 146; Attorney-General . Ely, 4 Wis. 420; Gumm . Hubbard, 97 Mo. 311; Kreitz v. Behrensmeyer, 125 Ill. 141. 2 People v. Ferguson, 8 Cow. 102. See also, upon this subject, People v. Cook, 14 Barb. 259, and 8 N. Y. 67; and People v. Tisdale, 1 Doug. (Mich.) 59. In People v. Ferguson, 8 Cow. 102, it was held that, on the trial of a contested election case before a jury, ballots cast for H. F. Yates should be counted for Henry F. Yates, if, under the circumstances, the jury were of the opinion they were intended for him; and to arrive at that intention, it was competent to prove that he generally signed his name H. F. Yates; that he had before held the same office for which these votes were cast, and was then a candidate again; that the people generally would apply the abbreviation to him, and that no other person was known in the county to whom it would apply. This ruling was followed in People v. Seaman, 5 Denio, 409, and in People v. Cook, 14 Barb. 259, and 8 N. Y. 67. The courts also held, in these cases, that the elector voting the defective ballot might give evidence to enable the jury to apply it, and might testify that he intended it for the candidate the initials of whose name he had given. In Attorney-General v. Ely, 4 Wis. 420, 429, a rule somewhat different was laid down. In that case, Matthew H. Carpenter was candidate for the office of prosecuting attorney; and besides the perfect ballots there were others cast for "D. M. Carpenter,' 'M. D. Carpenter," "M. T. Carpenter," and "Carpenter." The jury found that there was no lawyer in the county by the name of D. M. Carpenter, M. D. Carpenter, M. T. Carpenter, or whose surname was Carpenter, except the relator, Matthew H. Carpenter; that the relator was a practising attorney of the county, and eligible to the office, and that the votes above mentioned were all given and intended by the electors for the relator. The court say: "How was the intention of the voter to be ascertained? By reading the name on the ballot, and ascertaining who was meant and intended by that name? Is no evidence admissible to show who was intended to be voted for under the various appellations, except such evidence as is contained in the ballot itself? Or may you gather the intention of the voter from the ballot, explained by the surrounding circumstances, from facts of a general public nature connected with the election and the different candidates, which may aid you in coming to the right conclusion? These facts and circumstances might, perhaps, be adduced so clear and strong as to lead irresistibly to the inference that a vote given for Carpenter was intended to be cast for Matthew H. Carpenter. A contract may be read by the light of the surrounding circumstances, not to contradict it, but in order more perfectly to understand the intent and meaning of the parties who made it. By analogous principles, we think that these facts, and others of like nature connected with the election, could be given in evidence, for the purpose of aiding the jury in determining who was intended to be voted for. In New York, courts have gone even farther than this, and held, that not only facts of public notoriety might be given in evidence to show the intention of the elector, but that the elector who cast the abbreviated ballot may be sworn as to who was intended by it. People v. Ferguson, 8 Cow. 102. But this is pushing the doctrine to a great extent; further, we think, than consideration of public policy and the well-being of society will warrant; and to restrict the rule, and say that the jury must determine from an inspection of the ballot itself, from the letters upon it, aside from As the law knows only one Christian name, the giving of an initial to a middle name when the party has none, or the giving of a wrong initial, will not render the ballot nugatory; nor will a failure to give the addition to a name such as "Junior" render it void, as that is a mere matter of stituting a part of the name, and if given erroneously may be treated as surplusage. But where the name upon the ballot is all extraneous facts, who was intended to be designated by the ballot, is establishing a principle unnecessarily cautious and limited. In the present case, the jury, from the evidence before them, found that the votes [above described] were, when given and cast, intended, by the electors who gave and cast the same respectively, to be given and cast for Matthew H. Carpenter, the relator. Such being the case, it clearly follows that they should be counted for him." See also State v. Elwood, 12 Wis. 551; People v. Pease, 27 N. Y. 45, 84, per Denio, Ch. J.; Talkington v. Turner, 71 Ill 234; Clark v. Robinson, 88 Ill. 498; Kreitz v. Behrensmeyer, 125 Ill. 141; State v. Williams, 95 Mo. 159; State v. Gates, 43 Conn. 533. In Wimmer v. Eaton, 72 Iowa, 374, ballots for F. W. were counted for E. W., who was a regular candidate, there being no one eligible or running named F. W. In Opinions of Judges, 38 Me., 559, it was held that votes could not be counted by the canvassers for a person of a different name from that expressed by the ballot, even though the only difference consisted in the initial to the middle name. See also Opinions of Justices, 64 Me. 588. And in People v. Tisdale, 1 Doug. (Mich.) 59, followed in People v. Higgins, 3 Mich. 238, it was held that no extrinsic evidence was admissible on a trial in court in explanation or support of the ballot; and that, unless it showed upon its face for whom it was designed, it must be rejected. And it was also held, that a ballot for "J. A. Dver" did not show, upon its face, that it was intended for the candidate James A. Dyer, and therefore could not be counted with the ballots cast for him by his full name. This rule is convenient of application, but it probably defeats the intention of the electors in every case to which it is applied, where the rejected votes could influence the result, an intention, too, description, not con which we think is so apparent on the ballot itself, that no person would be in real doubt concerning it. In People v. Pease, 27 N. Y. 45, 64, in which Moses M. Smith was a candidate for county treasurer, Selden, J., says: According to well-settled rules, the board of canvassers erred in refusing to allow to the relator the nineteen votes given for Moses Smith and M. M. Smith;" and although we think this doctrine correct, the cases he cites in support of it (8 Cow. 102, and 5 Denio, 409) would only warrant a jury, not the canvassers, in allowing them; or, at least, those cast for M. M. Smith. The case of People v. Tisdale, was again followed in People v. Cicott, 16 Mich. 283; the majority of the court, however, expressing the opinion that it was erroneous in principle, but that it had (for twenty-five years) been too long the settled law of the State to be disturbed, unless by the legislature. In Massachusetts it is held that votes cast for "L. Clark " cannot be counted by the canvassers for Leonard Clark, though it is intimated that on a trial in court it might be shown that he was entitled to them. Clark v. County Examiners, 126 Mass. 282. 1 People v. Cook, 14 Barb. 259; 8 N. Y. 67; State v. Gates, 43 Conn. 533. But see Opinions of Judges, 38 Me. 597. 2 People v. Cook, 14 Barb. 259 and 8 N. Y. 67. In this case, the jury found, as matter of fact, that ballots given for Benjamin Welch were intended for Benjamin Welch, Jr.; and the court held that, as a matter of law, they should have been counted for him. It was not decided, however, that the canvassers were at liberty to allow the votes to Benjamin Welch, Jr.; and the judge delivering the prevailing opinion in the Court of Ap peals says (p. 81), that the State canvassers cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Benjamin Welch, without the junior. altogether different from that of a candidate, not the same in sound and not a mere abbreviation, the evidence of the voter cannot be received to show for whom it was intended.1 Upon the question how far extrinsic evidence is admissible by way of helping out any imperfections in the ballot, no rule can be laid down which can be said to have a preponderating weight of authority in its support. We think evidence of such facts as may be called the circumstances surrounding the election such as who were the candidates brought forward by the nominating conventions; whether other persons of the same names resided in the district from which the officer was to be chosen, and if so whether they were eligible or had been named for the office; if a "They had not the means which the court possessed, on the trial of this issue, of obtaining, by evidence aliunde, the several county returns, the intention of the voters, and the identity of the candidate with the name on the defective ballots. Their judicial power extends no further than to take notice of such facts of public notoriety as that certain well known abbreviations are generally used to designate particular names, and the like." So far as this case holds that the canvassers are not chargeable with error in not counting the ballots with the name Benjamin Welch for Benjamin Welch, Jr., it is, doubtless, correct. But sup pose the canvassers had seen fit to do so, could the court hold they were guilty of usurpation in thus counting and allowing them? Could not the canvassers take notice of such facts of general public notoriety as everybody else would take notice of? Or must they shut their eyes to facts which all other persons must see? The facts are these: Benjamin Welch, Jr., and James M. Cook are the candidates, and the only candidates, for State Treasurer. These facts are notorious, and the two political parties make determined efforts to elect one or the other. Certain votes are cast for Benjamin Welch, with the descriptive word "junior" omitted. The name is correct, but, as thus given, it may apply to some one else; but it would be to a person notoriously not a candidate. Under these circumstances, when the facts of which it would be necessary to take notice have occurred under their own supervision, and are universally known, so that the result of a contest in the courts could not be doubtful, is there any reason why the canvassers should not take notice of these facts, count the votes which a jury would subsequently be compelled to count, and thus save the delay, expense, vexation, and confusion of a contest? If their judicial power extends to a determination of what are common and wellknown abbreviations, and what names spelled differently are idem sonans, why may it not also extend to the facts, of which there will commonly be quite as little doubt, as to who are the candidates at the election over which they preside? It seems to us that in every case where the name given on the ballot, though in some particulars imperfect, is not different from that of the candidate, and facts of general notoriety leave no doubt in the minds of canvassers that it was intended for him, the canvassers should be at liberty to do what a jury would afterwards be compelled to do, count it for such candidate. See People v. Kennedy, 37 Mich. 67. Compare Clark v. County Examiners, 126 Mass. 282. 1 A vote for "Pence " cannot be shown to have been intended for 'Spence." Hart v. Evans, 8 Pa. St. 13. Where, however, wrong initials were given to the Christian name, the ballots were allowed to the candidate; the facts of public notoriety being such as to show that they were intended for him. Attorney-General v. Ely, 4 Wis. 420. This case goes farther in permitting mistakes in ballots to be corrected on parol evidence than any other in the books. Mr. McCrary, in his Law of Elections, devotes his seventh chapter to a careful discussion of the general subject of imperfect ballots. ballot was printed imperfectly, how it came to be so printed, and the like is admissible for the purpose of showing that an imperfect ballot was intended for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself; or unless the ballot is so defective that it fails to show any intention whatever: in which cases it is not admissible.1 And we also think that in any case to allow a voter to testify by way of explanation of a ballot otherwise fatally defective, that he voted the particular ballot, and intended it for a particular candidate, is exceedingly dangerous, invites corruption and fraud, and ought not to be suffered. Nothing is more easy than for reckless parties thus to testify to their intentions, without the possibility of their testimony being disproved if untrue; and if one falsely swears to having deposited a particular ballot, unless the party really depositing it sees fit to disclose his knowledge, the evidence must pass unchallenged, and the temptation to subornation of perjury, when public offices are at stake, and when it may be committed with impunity, is too great to allow such evidence to be sanctioned. While the law should seek to give effect to the intention of the voter, whenever it can be fairly ascertained, yet this intention must be that which is expressed in due form of law, not that which remains hidden in the elector's breast; and where the ballot, in connection with such facts surrounding the election as would be provable if it were a case of contract, does not enable the proper officers to apply it to one of the candidates, policy, coinciding in this particular with the general rule of law as applicable to other transactions, requires that the ballot shall not be counted for such candidate.2 The ballot should also sufficiently show on its face for what office the person named upon it is designated: but here again technical accuracy is not essential, and the office is sufficiently named if it be so designated that no reasonable doubt can exist as to what is meant. A great constitutional privilege — the highest under the government - is not to be taken away on a mere 1 The text is quoted with approval in Kreitz v. Behrensmeyer, 125 Ill. 141, but in that case after a recount had been made and his ballot identified by its number, a voter was allowed to testify that a certain slip upon it was not there when it left his hands; and that in writing in a candidate's name, the name of the office was partly obliterated by accident, though, if the latter was wholly obliterated, the vote could not be counted. 2 This is substantially the New York rule as settled by the later decisions, if we may accept the opinion of Denio, Ch. J., in People v. Pease, 27 N. Y. 45, 84, as taking the correct view of those decisions. See People v. Cicott, 16 Mich. 283, for a discussion of this point. Also State v. Griffey, 5 Neb. 161; Clark v. County Examiners, 126 Mass. 282. |