Opinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of Sonoma County.
COUNSEL
The court ruled correctly in disregarding erasures where there were no substitution, and the words "no vote" were not written, as provided in section 1204, as amended in 1889 (Stats. 1889, p. 425), but erred in ruling that where the erasure was made of both the office and name, the law did not apply. The name of plaintiff could be ascertained from an inspection of the ballots, and should have been counted for him. (Reynolds v. Snow , 67 Cal. 497.) Although a ballot having a mark on the outside designed to distinguish it from other ballots should be rejected, yet the mark should be designed for that purpose. (Wyman v. Lemon , 51 Cal. 273; Kirk v. Rhoads , 46 Cal. 398; Coffey v. Edmonds , 58 Cal. 521.) The rejection of the ballots having an impression, or "setoff," upon their back was error, as the impressions were clearly the result of accident, and not design. The carelessness or mistake of the printer should not be allowed to defeat the intention of the voter. (Inglis v. Shepherd , 67 Cal. 469.) These ballots had no "mark or thing thereon by or from which it could be ascertained what person or class of persons used or voted them." (Coffey v. Edmonds , 58 Cal. 531-536.) The court erred in counting the ballot for defendant, upon which the name of the defendant was substituted for the candidate for senator, and not in place of either of the opposing candidates for judge. (Donelly v. Potter , 55 Cal. 474; Fenton v. Scott , 17 Or. 189.)
A. B. Ware, and T. J. Geary, for Appellant.
C. S. Farquar, and J. A. Barham, for Respondent.
It was within the power of the legislature to determine the mode and manner of erasure or substitution upon the ballot, without inquiry upon the part of the judiciary; and the act of the legislature in fixing the mode and instrument by which the erasure or substitution is required to be made is conclusive upon the judiciary. (Reynolds v. Snow , 67 Cal. 498.) The court below, as required by section 1858 of the Code of Civil Procedure, followed the plain letter of the law, that the erasure and substitution must be made by lead-pencil or common writing-ink. (In re Wellington, 16 Pick. 87; Cooley's Constitutional Limitations, 105, 218, 219; City of Detroit v. Rush , 82 Mich. 532; People v. Draper , 15 N.Y. 532.) The ballots counted, against defendant's objection, for plaintiff, upon which his name has been erased by lead-pencil or common writing-ink, should not have been counted for plaintiff, because it was the clear intention of the voter to cast his ballot against plaintiff; and the portion of section 1204, added by the amendment of 1889, which requires the voter to write the words "no vote," in the event of an erasure, and no substitution, is unconstitutional, because it requires an educational qualification, and discloses the secrecy of the ballot. (Cooley's Constitutional Limitations, 78, note 3, 761, 762; McCrary on Elections, 45-49, 92, 93, 413; Morris v. Powell , 125 Ind. 281; People v. Pease , 27 N.Y. 81; State v. Craft , 18 Or. 550; Russell v. McDowell , 83 Cal. 80, 81.) The ballots upon which the respondent's name was written in place of the name of the candidate for senator were properly counted for the respondent, as well as for the appellant, whose name was not scratched. As the face of the ballot and the testimony of Judge Crawford show that there were only three candidates for senator, and that he was not, nor was any one by his name, or similar name, a candidate for senator, and considering this evidence with the fact that Crawford was a candidate for judge, the intention of the voter is clear, that he intended to vote for Crawford for judge, and not for senator. (Inglis v. Shepherd , 67 Cal. 470.)
JUDGES: In Bank. De Haven, J. Garoutte, J., Harrison, J., Beatty, C. J., Sharpstein, J., and Paterson, J., concurred.
OPINION
DE HAVEN, Judge
The parties to this action were opposing candidates for the office of judge of the superior court of Sonoma County, at the general election of 1890. The respondent, Crawford, received a certificate of election, and this is an action contesting his right thereto.
As a result of the trial and recount in the superior court, it appearing that the defendant received one vote more than the plaintiff, the court, on motion of defendant, granted a nonsuit, and dismissed the proceedings.
The plaintiff appeals from this judgment, and claims that the court erred in counting certain ballots for the respondent, and in refusing to count others for himself.
1. Two ballots, regular on their face, and with the appellant's name printed thereon for judge of the superior court, were not counted by the court, for the reason that there was on the back of each a faint type impression of a portion of the face of a similar ticket. The impression is known among printers as an "offset," and is produced when there is too much ink upon the type used in printing, by placing one ticket face downward upon the back of another which has preceded it from the press. In our opinion, the court erred in its refusal to count these ballots for appellant.
Section 1206 of the Political Code provides: "When a ballot found in any ballot-box bears upon the outside thereof [27 P. 780] any impression, device, color, or thing, or is folded in a manner designed to distinguish such ballot from other legal ballots deposited therein, it must, with all its contents, be rejected."
Prior to the adoption of the code, it was the usual practice to have the tickets of the different political parties of a different color or weight or size, so that an observer at the polls could see at a glance and detect the party ticket that was deposited by the voter. It was to prevent this, and secure to the citizen absolute secrecy for his ballot, that the section above quoted and others of the same code were enacted, prescribing for ballots uniformity of paper, color, and size, and in order to justify the rejection of a ballot under this section, it must appear that such "impression, device, color, or thing" on the outside thereof was intended to distinguish it from other legal ballots (Wyman v. Lemon , 51 Cal. 273); and the court is not authorized to find such design when it is just as reasonable to attribute the appearance of the ticket to accident as design. It is not doubted, as was argued here, that tickets may be marked in this way for the purpose of distinguishing them from other ballots, and to be furnished only to a certain class of voters. But in the absence of any proof tending to show this, the presumption must be that such an impression was the result of accident, and not intended, and therefore within neither the letter nor spirit of this section, or section 1207 of the same code, which provides that when a ballot bears upon it any impression, device, color, or thing intended to designate or impart knowledge of the person who voted it, it must be rejected.
2. What is said in the preceding paragraph will apply with equal force to the two ballots not counted for appellant, one of which had upon its back a very small piece of red sealing-wax, and the other a small stain as if made by a drop of oil, or something of that nature. It is far more reasonable to suppose that the wax was accidentally placed upon the ticket by the officers of election in sealing the package in which it was returned than to believe that it was designedly placed there as a distinguishing mark before its deposit in the ballot-box; and as to the other, the mark or discoloration is of that character that the most natural conclusion in relation to it is, that it was due to some accidental cause, and was not intended to distinguish the ballot, or impart knowledge of the person who voted it.
3. The court erred in counting ballot marked exhibit 37 as a vote for respondent; the ticket, so far as necessary to be set out, is as follows:
" 18. Judge of the Superior Court, Thomas Rutledge.
" 19. Judge of the Superior Court, J. W. Oates.
" 20. State Senator, Tenth District, Robert Howe," -- with the name "Robert Howe" erased, and that of the respondent written opposite, or in line with it.
We do not see how this ticket can be read as a vote for respondent for the office of judge of the superior court. A ballot is to be construed as any other writing, and while a resort to parol evidence of extrinsic circumstances may be had for the purpose of interpreting what would otherwise be doubtful, it cannot be shown by such or any evidence that the intention of the voter was anything different from what plainly appears upon the face of the ballot. (People v. Seaman , 5 Denio, 409.) And when the ballot intelligently shows that a particular person is voted for to fill a particular office, it cannot be counted differently because the court may believe that the voter made a mistake in preparing his ticket. Voting for a person to fill an office for which he is not a candidate may be the result of mistake, or it may be merely the frivolous exercise of the right of suffrage; but no matter whether such action be attributed to folly or mistake, the ballot is the only expression of the voter's will, and it must be counted according to its legal effect. The intention of the voter, as it appears upon the face of this ballot, was to vote for respondent for state senator, and not for judge of the superior court, and it should be so counted.
4. Upon certain ballots the printed name of the respondent was erased with an indelible pencil, and the name of the appellant written opposite thereto with the same kind of pencil. The court refused to count the same for appellant, but did count such ballots as votes for respondent. The respondent insists that the rulings of the court, in relation to the counting of these ballots, are justified by section 1204 of the Political Code. That section declares: "When upon a ballot found in any ballot-box a name has been erased and another substituted therefor in any other manner than by the use of a lead-pencil or common writing-ink, the substituted name must be rejected, and the name erased, if it can be ascertained from an inspection of the ballot, must be counted."
There was evidence introduced tending to show that indelible pencils are not in fact lead-pencils, nor commonly known as such by merchants selling them. The question is thus presented, whether a voter must follow the very letter of this section of the code in preparing his ticket, or have his vote for a particular candidate rejected. We think it very clear that such is not the purpose or the meaning of that section. The code commissioners, in their note to this section, say: "This section is intended to prevent the use of nitrate of silver, or any other chemical substance which may be written over a name and not be distinguishable until time brings out the impression; also to prevent the use of pasters, the use of which is subject to two objections: 1. Their liability to come off; 2. Their liability to be fraudulently taken off."
This object of the law -- and it is apparent that the legislature could have had no other in view -- is attained if the erasure and substitution are made in such a manner as to present at the time and retain the same general appearance as if made by a lead-pencil or common writing-ink. This section, when it declares that erasures and change of names shall not be made "in any other manner than by the use of a lead-pencil or common writing-ink," really means that the [27 P. 781] erasure and substitution shall not be made in any other style or form, or with any different effect, than would be produced by the use of a lead-pencil or common writing-ink. The law looks only to matters of substance, and does not waste its energy in pursuit of shadows, and if the appearance of having been made with a lead-pencil is produced by the use of an indelible pencil, there is a substantial compliance with the statute, although such a pencil may not, strictly speaking, be known as a lead-pencil. Any other construction would sacrifice the spirit and reason of the law to the mere letter; and yet, it is one of the great maxims of interpretation to keep always in view the general scope, object, and purpose of the law rather than its mere letter. "He who considers merely the letter of an instrument goes but skin-deep into its meaning." (Broom's Legal Maxims, 611.)
" A rigid and literal meaning would, in many cases, defeat the very object of the statute, and would exemplify the maxim that 'The letter killeth, while the spirit keepeth alive.' Every statute ought to be expounded, not according to the letter, but according to the meaning.. .. . And the intention is to govern, although such construction may not, in all respects, agree with the letter of the statute." (Tracy v. Troy & Boston R. R. Co ., 38 N.Y. 437.) 5. The court erred in counting ballot No. 8 as a vote for the respondent. Upon this ticket the printed name of respondent was erased with red ink, and that of J. W. Oates written in place of it, also in red ink. The respondent contends that red ink is not common ink within the meaning of the statute. We cannot say that it is not such ink, and it is clear that its use is not within the mischief which it is the object of the law to prevent.
6. Upon several ballots the name of appellant was erased and no name substituted therefor, and the words "no vote" were not written after the name erased. These were counted as votes for appellant. The court was correct in this ruling. The statute, in order to guard against fraudulent erasures, has provided this as the only way in which the voter can manifest his intention to erase a name, when he does not substitute another, and under such circumstances the erasure is not complete unless followed by these words. There is no valid constitutional objection to this requirement. It does not prescribe any educational qualification for the voter, nor require him to disclose the secrecy of his ballot, as contended.
7. The statement or complaint filed herein by appellant does not allege that he possesses the qualifications required by the constitution of this state to make him eligible to the office of judge of the superior court, and it is claimed by respondent that the statement is therefore fatally defective, and for that reason the judgment dismissing the proceeding should be affirmed. It is true that in order to entitle appellant to the full relief asked for, to wit, a judgment that he was elected instead of respondent, the statement should have alleged facts showing that he was eligible. But the statement is not fatally defective if it states a case for any relief (Perri v. Beaumont, ante, p. 30); and we think that it does. It is alleged that the appellant is an elector of the county of Sonoma, and such being the case, he was authorized to commence this proceeding, and upon proof of the facts alleged in his statement, was entitled to a judgment annulling the election of defendant.
As the case must be remanded for a new trial, the court below should, upon application, permit the appellant to amend his statement so as to allege the necessary facts showing his eligibility to be chosen to the office the election to which is in controversy here. (Perri v. Beaumont, ante, p. 30.)
Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.