Attorney-General ex rel. Carpenter v. Ely

By the Court, Cole, J.

This was an information in the nature of a quo warranto filed against the respondent for an alleged intrusion into the office of district attorney for Rock county. The respondent in his plea, in substance sets up an election to the office, at the general election in November, 1854; that he had received a certificate of election from the clerk of the county board of supervisors of said county, had filed his bond, and taken the oath of office, and therefore might lawfully enjoy and exercise the same. Issue was taken upon the allegation of the plea that the respondent was duly and legally chosen and elected to the office of district attorney, and that he received a greater number *426 of votes for that office, at said election, than any other candidate. This issue was sent to the Circuit Court of Rock county for trial. The jury found a special verdict, upon which the relator now moves for judgment.

The questions raised upon the argument can be conveniently considered in the order they are presented to us in the finding of the jury.

The ballot cast in Magnolia, which was rejected by the town canvassers because it contained the names of two persons for the office of senator, should have been counted for the respondent. That ballot was undoubtedly bad, so far as the office of senator was concerned. There was to be but one senator elected at that election in the Magnolia senatorial district, while the ballot contained the names of two persons designated for the office, and, as a matter of course, it was impossible to tell who was intended to be voted for. Sec. 28, chap. 6, R. S.

But the fact that the ballot was not good as to the office of senator, did not necessarily vitiate the whole ballot; it was, with the exception of this circumstance, entirely regular as to the office of district attorney, and other officers upon the ticket, and we can see no valid objection to counting it as to them.

It frequently happens, that an elector, through inadvertence or mistake, casts a ballot which contains the names of more than one person for the same office, while there are a dozen other names upon it, for as many different offices, all regular and proper; and it seems rather a rigorous rule to declare that he shall lose his vote as to all, because the ballot is bad in one particular.

If he loses his vote as to the office for which his ballot is double, it would seem to be all that public policy, the security of the ballot box, or a sound construction of the statute, require.

The vote in the town of Turtle was rejected by the county canvassers, because no poll list with the oath of inspectors of election of said town accompanied the statement of votes, made and sent by such inspectors to the clerk of the county board of supervisors, in conformity to the provisions of section 29, chap. 6. Otherwise the statement was regular and unexceptionable, and delivered by the chairman of the town board of supervisors to the clerk within seven days after the election.

Upon the trial of the cause, the town clerk of Turtle was pro *427 duced and sworn to records of said town on file in bis office, to show that the election was regularly notified and conducted, and tbat the votes were ascertained atid canvassed according to law; and also to show the number of votes cast for the different candidates for the office of district attorney in that town. .

The chairman of the town board of supervisors of the town of Turtle was also sworn, and testified that he acted as one of the inspectors of election at that election, that such inspectors were duly sworn before the polls were opened, and that the election was conducted in strict conformity to the statute.

All the testimony was admitted, subject to objection as to its competency, but we are of opinion that it was legal and competent evidence. The jury in their special verdict also find that the election in that town was regularly notified and held according to law.

Under these circumstances the twenty-eight votes given for the relator in that-town, for the .office of district attorney, and the three given for the respondent, .beyond all doubt, should be counted for them respectively. It is true, -section 25 of chap. 6, requires that the oath taken by the inspectors shall be annexed to and returned with the poll book to the clerk of the board of supervisors; while section49 makes it the duty of the inspectors to inclose one of the poll lists with the statement of votes made by them.

Whether these provisions of the statute must be strictly complied'with before the county canvassers are authorized to receive and act upoir the statements thus made to them, it is not necessary in the attitude of this case to inquire; but we do feel it our duty to say, that they are certainly safe and salutary provisions of law, and ought not to be disregarded by inspectors of elections.

The duties of these canvassing boards are in the main ministerial. State ex rel. Bashford vs. Barstow; The People vs. Van S lyck, 4 Cow. 322 ; Ex parte Heath et al., 3 Hill, 43 ; The People vs. Stevens, 5 ib. 617, C. J. Nelson's opinion. But perhaps the board of county canvassers might, under the provisions of section 95, have canvassed the Turtle vote, notwithstanding this informality in the return. Conceding, however, that the county board decided correctly upon the facts before them, in this proceeding, *428 we are bound to go back and rectify this mistake or omission and count the vote, for it is the election by a plurality of votes which constitutes the right to an office, and that right cannot be defeated by the mistake, or negligence, or misconduct of the canvassing boards. State vs. Barstow, unreported; The People vs. Vail, 20 Wend. 12 ; Ex parte Heath, supra.

It further appears from a stipulation filed in the cause, and the jury so find in their verdict, that there was given at said election for the office of district attorney for said county, not including the vote in dispute in Magnolia, or the votes given in the town of Turtle,

For George B. Ely, the respondent, . 1,098 votes.

“ George B. Ela,.8 “

“ Ely Ely,. 1 “

“.Ely,.3 “

“ Mathew H. Carpenter, the relator, . 1,081 “ “ D. M. Carpenter, . ■ . . . 4 “ “ M. D. Carpenter, .... 2 “

M. T. Carpenter,.1 ** “ Carpenter,. 1 “

“ S. J. Todd, . . , . . . 676 “

The relator claims that all the votes which were cast for Carpenter with the different initials, were intended by the persons who cast them, to be cast for him, the relator; and the respondent claims that the 8 votes east for George B. Ela, being idem sonans with his name, should be counted for him, the respondent.

.The following facts which were stipulated or agreed upon by the parties, were admitted in evidence, subject to the respondent's objection as to their competency.

That before the election in November, 1854, it was announced to the electors of Rock county, in all the newspapers printed in the county, that George B. Ely and Matthew H. Carpenter would be, and were candidates for the office of district attorney of the county; that at this time there was no lawyer in the county, eligible to the office of district attorney, of the name- of George B. Ela, Ely Ely, or Ely, and that there was no lawyer *429 whose surname was Ely, except the respondent; 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; that there were no votes cast in the county at said election for any person of the names of Ely and Carpenter, except for the office of district attorney; and that both the¡ relator and respondent, were practicing attorneys at that time,, in the county, and eligible to the office.

We are of the opinion that these facts were competent Jesti* mony to go to the jury. The principal question or matter in dispute, was to ascertain and determine for whom these votes with the different initials were intended? Were those given for Carpenter with the different abbreviations and initials, intended to be cast and given for the relator, Matthew H. Carpenter? And were those given for Ely with the various initials and abbreviations, intended to be given for the respondent, George B» Ely ? And how was this intention of the' voter to be ascertained ? By reading the name on the ballot and ascertaining who is designated or meant by that name ? Is no evidence admissible to show who was intended to be voted for under these various appellations except such evidence as is contained in the ballot itself? Or may you not gather this 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 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 further 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 *430 intended by it. The People vs. Ferguson, 8 Cow. 102 . But this is pushing the doctrine to a great extent, further, we think, than considerations of public policy and- the well being of society will warrant; and to restrict the rule and say that a jury must determine from an inspection of the ballot itself, from the letters upon it, aside from 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 two votes given for M. D. Carpenter, the four votes given for D. M. Carpenter, the one for M. T. Carpenter, and the one for Carpenter, 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.

It is not for us to enter upon an examination of this testimony, weigh it, and determine whether it would lead our judgment to the same conclusion ; we can only say that the testimony was competent, and the j ury have declared that it was sufficient to prove the facts found by them. The jury likewise found that the name of George B. Ela. was idem, sonans with the name of the respondent, and that the eight votes written George B. Ela were given and cast for the respondent, and were so intended by the electors who cast them; and further, that the relator was duly and legally elected district attorney of Eock county-for the term of two years from the first Monday of January, 1855.

Upon this verdict judgment of ouster must be given against the respondent and establishing the right of the relator.

An instruction was asked for by the relator and given by the court, to which the respondent excepted ; and three instructions asked for by the respondent, which the court refused to give; and to this ruling the respondent also excepted.

It is believed that there are no questions arising upon the instructions which have not been anticipated and sufficiently passed upon in the observations already made.

The verdict shows that the relator received a plurality of the legal votes cast for the office, and effect must be given to this *431 election, notwithstanding the certificate of election has been given to the respondent.

A canvassing board cannot create a right to an office. That must be based upon an election. The respondent offered his certificate in evidence, but has not seriously contended that it was conclusive and final. It was perfectly competent for the court and jury to go behind the certificate and determine who had been legally elected to the office. See cases already cited from 4. and 8 Cow.; 20 Wend.

Judgment for the relator.