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it is void as to that office, and must be rejected, [6 Phila., 437, 2 Pars., 534. State vs. Tierney, 23 Wis., 430] but is good as to the other offices named on it. § 406. But where a ballot contains the name of the person voted for and the office for which he is designated, several times repeated, it is not for that reason void, but is to be counted as one ballot. [People vs. Holden, 28 Cal., 124. Ashfield's Case, Cush. Election Cases, 583.] There seems to be no reason why a ballot containing a less number of names for a given office, than the number to be chosen, should not be counted for those who are designated. If three Representatives in the legislature are to be chosen by the voters of a given county or district, an elector may vote for one, or for two only, if he chooses to do so.

§ 407. While it is true that evidence aliunde may be received to explain an imperfect or ambiguous ballot, it does not by any means follow that such evidence may be received to give to a ballot a meaning or effect hostile to what it expresses on its face. The intention of the voter cannot be proven to contradict the ballot, or when it is opposed to the paper ballot which he has deposited in the ballot box. Thus where a ballot is cast which has upon it the names of two persons for the same office, proof offered to show that the voter intended to vote for the one or the other of them, and not for both, must be rejected. [The People vs. Seaman, 8 Cowan, 409.] Such a ballot may be void, but it is not ambiguous, and therefore cannot be helped by a parol proof.

§ 408. It very often happens that a printed ticket is changed by the voter, by erasing some part of it, or by writing on the face of it, or by both, to make it conform to his wishes. A ballot is to be construed in the same way as any other written or printed

document, and the construction must be such as to give effect to the voter's intent if that can be ascertained from the face of the ballot, or in some cases, as we have seen from the ballot as explained by evidence aliunde. If, therefore, a voter has written upon his ballot the name of a particular person in connection with the title of an office, and omits to strike out the name of another person printed upon it in connection with the same office, the writing must prevail, and the vote must be counted for the person whose name is written. This is upon the ground that the writing is the highest evidence of the voter's intention.

§ 409. In such a case the voter's intention can be clearly ascertained from the face of the ballot; there is no ambiguity, and therefore, evidence aliunde is not admissible to explain it, and the Court must, in such a case, find, as matter of law, that the writing on the face of the ballot prevails over the printing. (The People vs. Saxton, 22 N. Y., 8 Smith, 309.)

§ 410. In New York, since the decision in People vs. Sexton, and People vs. Cook, supra, it has been considered as settled that upon the trial of a case where the question as to who was elected to a particular office, and what was the intention of certain ballots, is investigated before a jury, the Court and jury are not confined to the narrow limits which control boards of canvassers who have no power to take evidence aliunde the ballot itself. Such boards cannot, but courts and juries can, hear and consider evidence for the purpose of elucidating any apparent ambiguity on the face of a ballot or any apparent incongruity between it and the surrounding circum

stances. And it has accordingly been held that the placing of a "paster" containing one name over another name, on a ticket, indicates an intention to substitute one name for another. If it be placed over another name which is under the title of an office, it indicates an intention to substitute for that office the name upon the paster. If it be done in such a manner as to afford any ground for doubt, whether the voter intended to designate two persons for the same office, that doubt may be safely left to be solved by a jury, in view of all the facts, the appearance of the ballot and the surrounding circumstances. And in cases where there is doubt as to the intention of the voter, because of some apparent ambiguity on the face of the ballot, it is error for the Court to reject proper evidence offered to explain the ambiguity, and to instruct the jury as matter of law, that such ballot cannot be counted. (The People vs Love, 63 Barbour, 535.)

§ 411. Where a pen or pencil mark is drawn over a name which has been printed on a ballot, it will be presumed that an erasure of the name was intended, although it be still legible, unless the contrary is shown. It is not necessary to obliterate the name entirely. And where the inspectors have rejected such a ballot, on the ground that the name was erased, and where the ballot itself is not in evidence, the correctness of the decision of the inspectors will be presumed. (Adams vs. Wilson, Cl. & H., 373.)

§ 412. Where the constitution declares that all ballots shall be "fairly written," a printed ballot is good. (Temple vs. Mead, 4 Vt., 541. Henshaw

vs. Foster, 9 Pick., 312.) The term "written" is held to include what is printed, following the definition of that term, as given by the best lexicographers, viz: "to express by means of letters." No doubt to the common understanding the term "written" conveys the idea of forming letters into words with a pen or pencil; but to give it this meaning in this connection would be to sacrifice the spirit for the sake of the letter. "The letter killeth, but the spirit maketh alive," is the forcible expression of scripture.

§ 413. The constitution of Indiana provides that "all elections by the people shall be by ballot." A statute of that State, passed in 1869, provides that "it shall be the duty of the inspector of any election, &c., on receiving the ballot of any voter, to have the same numbered with figures on the outside or back thereof, to correspond with the number placed opposite the name of such voter on the poll list, kept by the clerk of said election." The The question of the validity of this statute came before the Supreme Court of Indiana, in the case of Williams vs. Stein, (38 Ind., 89.) The case presented squarely the question whether under a constitution guaranteeing to every voter the right to vote at all elections by the people, by ballot, it is competent for the legislature to provide for numbering the ballots in such manner as to destroy their secrecy. The court held the statute to be unconstitutional and void. Upon an elaborate review of the authorities, the conclusion is reached, upon what seems to be good ground, that in this country the ballot implies absolute and inviolable secrecy, and that this doctrine is founded in the highest considerations of public poli

cy. That the term ballot implies secrecy, and that this mode of voting was adopted mainly to enable each voter to keep secret his vote, is clear. [Cushing on Leg. Assemblies, Sec. 103. May's Constitutional History of England, Vol. 1, p. 353. People vs. Pease, 27 N. Y., 45, Cooley's Const. Lim. 604. Temple vs. Mead, 4 Vt., 535. Ledbetter vs. Hall, 62 Mo. 422.]

§ 414. A statute of Indiana provided that in an election to determine the question whether a county subscription should be made to aid in constructing a railroad, the form of an affirmative ballot should be "for the railroad appropriation." At an election held under this statute, ballots were cast which had printed or written upon them only the words "for the railroad." This was held to be an irregularity which would not affect the election. (R. R. Co. vs.

Bearss, et al., 39 Ind., 39.)

415. Where a statute authorizes an election to be held by a county, city or township, for the purpose of determining a given question—as for example, whether such municipality shall subscribe to the stock of a railroad company-and where such statute points out no mode for conducting such election, it has been held that it should be conducted in the manner prescribed by law for other elections by the same body. For example, if an election in a township is held for such a purpose under a statute silent as to the manner of proceeding, it should be held in the manner township elections are required to be held, in the election of their town officers, and not under the general election laws of the State. [People vs. Dutcher, 56 Ill., 144.] The doctrine of this case is that where the legislature authorizes a town

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