« SebelumnyaLanjutkan »
or those for whose use they were designed, to print the dashes in the tickets for the purpose of distinguishing them from any other ballots of any other party.
It is also proved that tickets precisely similar to those that are questioned in this contest, in so far as the printer's dashes are concerned, were printed and furnished to the opposing party in at least one of the counties in the sixth Congressional district of Mississippi, and were unquestionably voted without a suspicion that they were obnoxious to the law. To further illustrate the entire good faith with which these tickets were printed and used, and how they would be regarded by practical printers, the testimony of Charles Winkley, one of contestee's witnesses, becomes very important; it is as follows:
Cross-interrogatory 2. Are you a practical printer, and have you critically examined the “marks," so called, on the tickets of Lynch, rejected from Warren County If so, were not these only the usual printer's dashes to be found generally in newepaper articles and upon tickets generally?
Answer. I am a practical printer; I have not critically examined the tickets, but the dashes used are such as any printer of taste would either put in or leave out, according as he wanted to lengthen or shorten the ticket to suit the paper, or otherwise.
Cross-interrogatory 3. If you were called upon generally to print tickets, without any special instructions, is it likely that you would have printed the tickets similar to those complained of and rejected from Warren County ?
Answer. I might or might not, just as it might have seemed to strike me at the time. And further deponent saith not. (Rec., p. 261.)
It further appears that printers' dashes, such as were used on the tickets in this case, are universally known among printers as punctuation marks; in fact most of the characters which appear upon these tickets are set down in Webster's Unabridged Dictionary under the head, ó marks of punctuation.” It is known to the most casual reader of print that printers' dashes frequently occur in books, newspapers, and publications of all kinds, and to the common understanding to argue that they are of themselves “marks or devices” would not meet approval.
We have already found that they were not used or placed upon the tickets for the purpose of distinguishing them from any other ballots, nor as a device for that purpose, and not being of themselves devices we cannot say that they are inimical to the statute. It is true that printers' dashes may be intended and used as a mark or device, and so may different kinds of type, or punctuation marks of different kinds. Arrangement of names and heading of tickets may also be made "marks and devices,” and it seems to us that the reasonable interpretation of the law would be, first, in the use of these appliances, which are ordinarily used in printing, were they so arranged as that they become “marks and devices”? and were they so used and arranged for that purpose? and, secondly, was the unusual manner of their being used such as might or ought to put a reasonably prudent man on his guard?
This view of the law would be the extreme limit to which we think we would be justified in going under well-established principles of construction in like cases. No case has been called to our notice which goes this far.
What we have here remarked does not, of course, apply to the marks or devices ordinarily used on tickets, such as spread-eagles, portraits, and the like; those would be considered - marks and devices" of themselves, and not necessary in the ordinary mechanical art of printing. The use of the latter would be considered a violation of the statute in
any aspect of the case, while the use of the former seems to us, in any view of the law, ought to be restricted to an intentional or manifest misuse.
The evident object and intention of prohibitory legislation against “marks and devices” is to secure the freedom and purity of elections, to preserve the secrecy of the ballot, and place the voter beyond the reach of improper restraint or influence in casting his ballot, and we cannot better express ourselves upon this subject than by quoting the supreme court of California in Kirk vs. Rhoades, supra, which is as follows:
The object of these provisions is to secure the freedom and purity of elections, and to place the elector above and beyond the reach of improper influences or restraint in casting his ballot. When all the ballots cast are similar in appearance, and without any distinguishing mark or characteristic, the most dependent elector in the county may vote with perfect freedom, as his employer or other person upon whom he is dependent has no ineans of ascertaining for whom he voted.
It will be observed that there are two classes of things required by section 1191. Over one class the elector can have no control; over the other he has perfect control.
For instance, whether the paper on which his ballot was printed was furnished by the secretary of state or not, or upon paper in every respect precisely like such paper, or whether it is four inches in width and twelve inches in length, or falls short of this measurement by an eighth, or a sixth, or a fourth of an inch, or whether it is printed in long primer capitals or not, or whether it is single or double leaded-these are matters over which the great majority of electors have no control, and about some of which they are entirely ignorant. The ballots are always furnished on the day of election by committees appointed for the purpose by the respective political parties, or by independent candidates or their friends. The elector in but few instances ever sees these tickets until he approaches the polls to cast bis ballot, and it would be absurd in the extreme to require him to have a rule by which he could measure and ascertain whether his ticket exceeded or fell short of twelve inches in length by a sixth of an inch, or only by an eighth of an inch, or whether the color of his ticket was of the exact shade of the paper furnished by the secretary of state.
Again, not one elector in five hundred knows the difference between long primer capitals or any other capitals, or whether his ticket is single or double leaded. It is impossible that he should know or be able to determine these facts. This very case presents a striking instance of the absurdity of requiring the elector to judge of these facts.
The respondent, Rhoades, by his counsel, objected to counting twenty-two ballots for Kirk, upon the grounds that they were not printed in long primer capitals, and that the lines were double-leaded.
Such was this case. Section 1208 expressly required a ballot found in the box pot conforming to the requirements of section 1191 to be rejected. This section did not, as the Mississippi law does, omit to state that this rejection should be of the prohibited ballots when and after found in the box, and yet the court held expressly that as to all matters regarding character of the type, the paper, the width and length of ticket, they were matters that ordinarily were not under the control of the voter, and that the statute shonld be held directory as to such matters, and that the claim of respondent that the 22 votes for Kirk should be rejected on account of not being printed in long primer capitals, and that the lines were double-leaded, was by the court overruled. In the conclusion of its opinion the court said:
"To defeat the will of the people in any election it would only be necessary to furnish the electors, or a portion of them, with tickets in which the printed lines were one-forty-fourth part of an inch further apart than required by the code-a difference which cannot be detected except by an expert. There are, however, other requirements of the code within the power of the elector to control, and these, if willfully disregarded, should cause his ballot to be rejected. He can see, for instance, that his ballot is free from every mark, character, device, or thing tbat would enable any one to distinguish it by the back, and if, in willful disregard of law, he places a name, number, or other mark on it, he cannot complain if his
ballot is rejected and he loses his vote."
The above language quoted from this case is the language of the court below. The supreme court, after quoting this language in the opinion, closes its opinion in these words:
"We agree with the county judge in his conclusion that the twenty-two ballots spoken of were properly counted for Kirk, and that the motion to strike them from the count was properly denied. Judgment affirmed.”
We do not feel called upon to give our reasons why we dissent from much that is said in the opinion in the Mississippi case. It may not be out of place to remark that some of the reasons on which the opinion is based appear to be directly opposed to the current of authority upon which like legislation is maintained. It is remarked that "its object is to secure absolute uniformity as to the appearance of ballots, in order that intelligence may guide the voter in his selection, and not a mere device or mark by which ignorance may be captivated.”
Our understanding has been that these laws were designed to protect the weak and ignorant against undue restraint by the strong and powerful, to make the ballot secret and free, and place the dependent on the same plane as the most favored; and that laws of this character ought not to be so construed as to become a snare to the very persons for whose protection they were designed. The learned and powerful need no such protection. The laws are designed for the protection of the weak and unlearned. It seems to us that the construction given to this law inevitably establishes a basis of intelligence—ot being able to read, at least, for if you strip all ballots of every punctuation mark, and all dissimilarity in print, and make them of the same paper, of the same size, and similarly spaced, the man who is unable to read will be entirely at the mercy of his more favored neighbor, and thus you will defeat the very thing which the law was intended to prevent.
It is urged that the construction given to this law defeats one of the provisions of the constitution of Mississippi, which extends the right of suffrage to all without reference to illiteracy. This point not having been referred to by the court in Mississippi, we infer that it escaped their attention, and we do not care to go into the question. It is quite evident to us that these laws must pass under judicial notice frequently in the future, and we are quite content not to anticipate the results which may be hereafter reached.
We have examined the question of “printers' dashes," in the first instance, because if we arrived at the same conclusion respecting their illegality as the contestee did, it was manifest to us from the beginning that we would not have to go farther, as this would control the case. Having arrived at a conclusion adverse to contestee, it becomes material to next examine exceptions filed by him to certain of the testimony printed in the record. His exceptions are as follows:
The contestee comes in proper person and excepts to so much of Exhibit D filed as additional testimony in this case, and appearing from page 225 to page 243, inclusive, of the record :
1. Because there is no such officer as chief supervisor of elections for either the northern or southern district of Mississippi known to the laws of the United States and authorized to make such reports. 2. Because there is no law authorizing the supervisors of elections to make any reports of the election in any district outside of a city of twenty thousand inhabitants.
3. Becanse these pretended reports are not signed by both of the pretended supervisors at each precinct.
4. Because there is no evidence that the parties signing these reports as supervisors were, in fact, appointed United States supervisors of elections.
5. Because there is no evidence that the parties whose names appear to be signed to said reports actually signed the same.
6. Because the pretended reports were not presented as an exhibit to contestant's deposition when taken, and were gathered up by contestant and filed here long after the time for taking testimony in this case.
H. Mis. 35-23
7. Because the pretended certificate of Orlando Davis appears on its face to have been signed September 13, 1881, long after the time for taking testimony in this case.
8. Because said papers appear on their face to be filed with the Clerk of the House of Representatives on the 21st of December, 1881, long after the time for taking testimony in this case, and do not appear to have been transmitted by any authorized officer of law.
JAS. R. CHALMERS,
Before passing upon the question we call attention to the sections of the Revised Statutes bearing on the question of supervisors' returns. Sections 2011 and 2012 authorize the judge of the circuit court, on the application in writing of ten good citizens, to appoint in each election precinct, at which a Representative in Congress is to be voted for, two citizens of different political parties as supervisors of elections. Section 2025 requires the circuit court to designate a circuit court com. missioner to act as chief supervisor for the district. Section 2017 specifies the duties to be performed by them, among which are to personally scrutinize the manner in which the voting is done, and in which the poll-books, tally, or check-books are kept. Section 2018 requires that, to the end that each candidate for Representative in Congress shall obtain the benefit of every vote cast for him, the supervisors shall scrutinize personally the count, and canvass each ballot, and make and forward to the chief supervisor (Sec. 2025) certificates and returns of all such ballots as such officer may require.
Section 2026 requires the chief supervisor to “receive, preserve, and file all oaths of office of supervisors of election, and of all special deputy marshals, appointed under the provisions of this title, and of all certificates, returns, reports, and records of every kind and nature contemplated or made requisite by the provisions hereof, save where otherwise herein specially directed.”
The contestant contends that these sections apply to country supervisors as well as to supervisors appointed in cities of 20,000 or more inhabitants; while the contestee claims that section 2011 is made up partly of the acts of 1871 and 1872; that sections 2012 to 2027, inclusive, are taken from the act of 1871, and have no reference to supervisors appointed in counties or parishes on the petition of ten citizens, and that 2029 is also taken from acts of 1872. Reference is made by the contestee to the Congressional Globe, page 4455, second session Forty.second Congress, to the debate had when this provision was pending in the House.
It is needless to enter into an extended history of this legislation. The disputed question between parties is this : The contestant claims that the statute requires the supervisors of elections in country procincts to make and keep an official record of the result of the votes polled, of the manner of conducting the election, the truth or fairness of the canvass and its conduct, and the honesty of the count, if the chief supervisor shall so direct, and return the same to the chief supervisor, who shall keep and preserve them, and in accordance with law file a certified copy with the Clerk of the House of Representatives; that these returns, or duly certified copies of them, are competent evidence in contested election cases. We copy the following strong statement made by contestant's counsel in support of this contention :
That where the law-either statutory or other-makes a document a public record or file, and requires it to be preserved as such, and puts the custody thereof in the hands of an officer, there as a matter of common law, and without statutes authoriz ing the custodian to certify to copies of such record, the common law will admit the copy certified by the custodian as evidence of what is provable in any case by the original, is a matter of elementary law. The opposing brief seems to controvert this, as, for example, at the bottom of page 29, where it cites section 104 of McCrary's Eleo.
tion Laws. That citation wholly fails to meet or negative the last preceding proposition. That section 104 is a statement simply to this effect:
“That statute certifying officers can only make their certificates evidence of the facts which the statute requires them to certify; and when they undertake to go beyond this and certify other facts they are unofficial, and no more evidence than the statement of an unofficial person."
We admit there is much force in this argument. But the conclusions we have reached do not make it necessary for us to decide this question, and we do not. We present the following analysis of the various pre. cincts upon the view that it is unnecessary to look to the supervisors' report for any purpose.
We correct the returns made in this county as follows: The vote as returned to the secretary of state was: Lynch, 57; Chalmers, 1,014; we add the rejected vote, Lynch, 2,029; Chalmers, 26.
The vote returned by the inspectors to the commissioners of election, and by the commissioners of election to the secretary of state, appears. in the subjoined tabulated statement.
1, 387 Bolivar
1, 014 Washington...
1, 607 Wilkinson
1, 691 Total..
9, 172 10, 240
5, 393 Majority for Lynch..
663 Majority for Chalmers..
ist as The tabulated statement below shows the number of votes reirs say by the commissioners of election from the counties named:
by law e court
Certified Votes rejecte mission
we also Lynch.
356 3, 481 1 048