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contestant's counsel, is, to the votes cast for Elliott Braxton, two hundred and thirty-five in number. These, it is urged, cannot be counted for Elliott M. Braxton, the sitting member. Even if we were not permitted to look beyond the ballots themselves, we could have little doubt as to our duty; but, under some circumstances, and for certain purposes, evidence outside of the ballots themselves is admissible. It is true that no evidence aliunde can be received to contradict the ballot, nor to give it a meaning when it expresses no meaning of itself, but, if it be ambiguous or of doubtful import, the circumstances surrounding the election may be given in evidence to explain it, and to enable the House to get at the voter's intent. We see no reason why a ballot, ambiguous on its face, may not be construed in the light of surrounding circumstances, in the same manner and to the same extent as a written contract. The true rule, which should govern upon the subject of the admissibility of extrinsic evidence to explain such a ballot, is thus laid down in Cooley on the Constitutional Limitations, page 611:

"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 name 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 the 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 meant 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 case it is not admissible."

To the same effect are the following decisions: Attorney General vs. Ely, (4 Wis., 430.) People vs. Ferguson, (8 Cowen, 102.) People vs. Cook, (14 Barbour, 259.) People vs. Pease, (27 N. Y., 64.) Canvassing officers must record the ballots as they are and can receive no extrinsic evidence. (Opinion of Justices, 64 Me., 596.).

In People vs. Ferguson, supra, 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 that they were intended for him; and that 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 vs Seaman, (5 Denio, 402) and in People vs. Cook, 8 N. Y., 67. In Attorney General vs. Ely, the court went so far as to hold that ballots cast for "D. M. Carpenter," "M. D. Carpenter," "M. T. Carpenter," and "Carpenter" might be counted for Matthew H. Carpenter, upon proof made to the satisfaction of the jury that they were intended for him.

In an early case in Michigan (People vs. Tisdale, 1 Doug., 65,) it was held that no extrinsic evidence was admissible in explanation or support of the ballot, and this ruling has been followed in that State in several later cases. The Supreme Court of that

State, however, in its latest decision on the subject, [People vs. Cicotle, 16 Mich., 283,] through a majority of the judges, expresses the opinion that the doctrine laid down in People vs. Tisdale, is erroneous, and it is adhered to upon the sole ground that it has been too long the law of that State to be overthrown, except by the legislature. The chief justice, in a masterly dissenting opinion, advocates the entire overthrow by the Court of the erroneous and pernicious doctrine of the earlier cases. We quote from this dissenting opinion, as follows:

"All rules of law which are applied to the expression, in constitutional form, of the popular will should aim to give effect to the intention of the electors; and any arbitrary rule which is to have any other effect, without corresponding benefit, is a wrong, both to the parties who chance to be affected by it, and to the public at large. The first are deprived of their offices, and the second of their choice of public servants.

"The chief argument in favor of the rule of People vs. Tisdale, is, that ballots cast for parties by their initials only, are so uncertain that they cannot be applied without resort to extrinsic and doubtful evidence to ascertain the voter's intention, and therefore should be rejected. But nothing can be more fallacious. It frequently happens that a man is better known by the initials of his baptismal name than by the name fully expressed; simply because he is not in the habit of writing his name in full, or of being thus addressed in business transactions. I think it highly probable that this is the case with each of the parties before us.

In political conventions, or legislative bodies, no one deems it important to write the full name of a candidate for whom he is voting, and no one ever thinks of challenging the vote for uncertainty. Under the application of this rule to the present case, the curious spectacle will be exhibited of votes cast for E. V. Cicott and G. O. Williams, being rejected because the courts cannot determine for whom they were intended, while not a single person in the county of Wayne has the slightest doubt that they were cast for Edward V. Cicott and Gurdon O. Williams, the opposing candidates at this election. Thus the courts are required to close their eyes to what everybody else can see distinctly. The fallacy of the rule consists in its assuming that a certain form of ballot clearly expresses the voter's intention, while another form is so uncertain that it is dangerous to attempt to arrive at the meaning by evidence. But, in fact, no ballot can identify with positive certainty the persons for whom it is cast; and notice must be taken of extrinsic circumstances in order to apply it. It is always possible that other persons may reside in the election district, having the same names, with some of the candidates; but neither the canvassers nor the courts ever assume that there is any difficulty in these cases, but they count the votes for the persons who have been put forward for the respective offices. And in some cases, where an element of uncertainty is introduced into the ballot unnecessarily, as by the addition of an erroneous designation, the courts resolve the difficulty by rejecting the erroneous addition, and counting the ballot for the person for whom it was evidently designed.'

And see State vs. Gates, 43 Conn., 533. Talkington vs. Turner, 71, Ill., 234. State vs. Griffey, 5 Neb. People vs. Kennedy, 37 Mich., 67. Lee vs. Rainey, House of Reps., 44th Congress.

161.

There is, then, no room for doubt that the rule laid down by Judge Cooley, and quoted above, is the true rule, having for its support both authority and reason. To reject it and establish the doctrine contended for by contestant, would be to defeat, in every such case as the one before us, the undoubted will of the majority. And this injustice would not be compensated by the establishment of a rule which is in itself either salutary or important. The cases are numerous where an imperfect ballot, by the aid of extrinsic evidence, can be made clear and perfect. No harm can result from admitting such extrinsic evidence so long as it is only admitted to cure or explain such imperfections and ambiguities as could be cured if they occurred in the most solemn written instruments, and to this extent, and no further, would we carry it. Thus guarded and qualified, the rule is most salutary and most just."

§ 397. The doctrine of this report will be found fully sustained by the decisions of the House of Representatives in the case of Chapman vs. Ferguson, (1 Bartlett, 267,) where votes for "Judge Ferguson" were counted for the sitting member, Fenner Ferguson, and in which also ballots which read "Bird B. Chapman for Congress," instead of "for Congress, Bird B. Chapman," were held good, and counted for contestant. And see also Gunter vs. Willshire, (43d Congress,) where votes returned for "T. M. Gunter," "T. Ross Gunter," "Thomas N. Gunter," and "Gunter," were, upon proof of the intention of the voters, allowed to be counted for

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