OpenJurist › Volume 95 › Md. › Page 703 95 Md. 703
Coulehan v. White Court of Appeals of Maryland · decided 1902-12-17
At an election held in the city of Cumberland on May 19th, 1902, W. T. Coulehan and W. C. White were opposing candidates for the office of Mayor. The return of the Board of Canvassers showed that Mr. White had received a majority of sixteen votes and was elected.
▾ Read full summary Relies on Duvall v. Miller
Good law ✅ — No negative treatment on record how we know
Decided 1902-12-17
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PER CURIAM.
¶1
With the exception of the rulings in relation to class 4 the rulings and order appealed from will be affirmed for the reasons given in the opinion of the Court below.
¶2
In our opinion the ballots included in class four were erroneously rejected and'should have been counted, because they were not illegally marked within the rule laid down in
Duvall
v.
Miller 94 Md. 697
Jtidgment affirmed.
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Case posture Posture Appeal from an order of the Circuit Court for Allegany County (BOYD, C.J., and STAKE, J.)
At an election held in the city of Cumberland on May 19th, 1902, W.T. Coulehan and W.C. White were opposing candidates for the office of Mayor. The return of the Board of Canvassers showed that Mr. White had received a majority of sixteen votes and was elected. Mr. Coulehan then filed in the Circuit Court for that county the petition in this case alleging that the judges of election had counted for White certain ballots which were illegally marked and should have been rejected and that some of the ballots counted for White did not contain the initials of the election judge, etc. The prayer of the petition was for an order directing that said Warren C. White be notified by summons, in usual course of the pendency of this proceeding; authorizing the taking of testimony in support of the allegations of this petition, as provided by law; establishing such modes of proceeding and adjudging costs in this case, as to your Honors shall seem most satisfactory; ordering and directing the Clerk of this Court, to whom the ballots cast at said election were returned by said Board of Supervisors of Elections, to produce any such ballots in regard to which testimony may be proposed to be taken before the justice of the peace taking examinations in this case, and to furnish said justice copies of the same where required, in pursuance of the terms and conditions of said order and subject to its restrictions; directing the examination of said ballots in order to
ascertain which of them were improperly accepted and which of them were improperly rejected by judges of said election, and providing for ascertaining how many of the legal ballots cast at said election were voted for said Warren C. White and how many for petitioner.
Testimony was taken before a Justice of the Peace under an order of Court, and another order directed the examination of the ballots in a prescribed manner. The case was tried before the Court upon the evidence returned by the Justice of the Peace and upon an agreed statement of facts which was in part as follows:
It is further agreed that when the ballot-box of ward number six was opened by the Court, under the order and agreement aforesaid, it was found that six hundred and twenty-three (623) ballots had been cast at said election and were in the box marked by the voters to vote for either the plaintiff or defendant; that four hundred and one (401) of said ballots had been marked by the voters to vote for the plaintiff, and two hundred and twenty-two (222) ballots had been marked to vote for the defendant; and that of thirty-seven of said ballots marked by the voter to vote for the plaintiff and twenty-one of said ballots marked by the voter to vote for the defendant, not one of the same had marked thereon, upon the back, or any other part thereof, the name or initials of anyone of said judges of election, or clerks, in ink or in any other manner. In addition to said fifty-eight ballots not initialed as aforesaid, there was one ballot marked to vote for the plaintiff, which had written on the back thereof, in ink, in the proper place, the letter A, thus: A. and no other letter or name; and that one other of said ballots, in addition to said fifty-eight, marked to vote for plaintiff, had written on the back thereof, in the proper place, in ink, the following: A. Schr: And that one other of said ballots in addition to said fifty-eight marked to vote for plaintiff had written, in the proper place, on the back thereof, in ink, the letters A.S.; followed by the figures fourteen (14), with a mark across the same, thus: 14; and that all other ballots in said box, except
said sixty-one, were properly initialed, on the back thereof, in the proper place, in ink, by Anthony Schriver, one of the judges of election in said ward, in his genuine handwriting; and that the writing on the back of the aforesaid three ballots, just above set out, was in the genuine handwriting of said Anthony Schriver, except as to the one upon which the figures fourteen (14) were marked, but who wrote said figures, or the mark across them, or in whose handwriting said figures are, is not known.
It is further agreed that in said ward number six Anthony Schriver, John D. Bopst, Louis Spindler and H.L. Snyder were the judges of election, and John Craddock and T.E. McLaughlin were the election clerks; that said Snyder and McLaughlin alone signed the election returns in said ward, which were properly returned therefrom duly sealed, directed and addressed, and that said Schriver, Bopst, Spindler and Craddock declined to sign said election returns from said ward number six, and stated their reasons therefor in writing, signed by themselves and by each of them, in words following: We do not sign the returns from ward No. 6 for the election held May 19th because we are in doubt whether certain ballots should be counted, and enclosed a copy thereof with each return from said ward number six. And it is further agreed that said Schriver, Bopst, Spindler and Craddock never did sign or ratify said returns from said ward number six, except as stated.
It is further agreed that in ward number six, the defendant objects to the counting of any one and all of the ballots in said ward because the returns therefrom have only been signed by one judge and one clerk, but the plaintiff claims that said ballots, if otherwise properly marked by the voter, should be counted notwithstanding said returns were only signed by one judge and one clerk; and further claims, in case the Court should overrule said objection of the defendant made on account of the manner of said returns, that then all the ballots cast in said ward for the plaintiff and defendant, properly marked by the voter, should be counted accordingly.
It is further agreed and admitted that the way and manner in which each and all of said ballots were marked in each of said wards, can be classified and have been classified by the parties hereto, so as to show the Court how each and every one of said ballots is marked, and that a true and accurate description of the way and manner each and everyone of said ballots is marked is set out in the following table of classes; and it is admitted that each of said ballots is marked in one or more of the ways particularly described in said classes; said classes of marks so agreed upon as correctly describing the manner in which all said ballots are marked, being as follows:
Class No. 1. Where part of the cross-mark extends to, but not beyond the inside of the line of the square.
Class No. 2. Where a line of the cross-mark extends beyond the inside of the line of the square and into the line but not to its outside edge.
Class No. 3. Where a line of the cross-mark extends across and to the outside edge of the line of the square.
Class No. 4. Where one or more lines of the cross-mark extend beyond a line of one or more of the squares an infinitesimal distance, visible in ordinary light, but scarcely measurable. A sample of this class is presented to this Court and to the Court of Appeals, by leave of Court and consent of counsel, by one hundred and three (103) original ballots of this class in ward No. three, forty-eight (48) of the same marked for the plaintiff and fifty-five (55) of the same marked for the defendant, which said one hundred and three (103) original ballots are presented as pictorial illustrations, in aid of the foregoing description of the marking of all ballots in said class four.
Class No. 5. Where one or more lines of the cross-mark extend beyond a line of one or more of the squares to a greater extent than the greatest extension included in class No. four.
Class No. 6. Where the cross-marks are made at right angles to each other and to the sides of the square and not
from the direction of the corners of the square, but are made wholly within the square, thus:
----- | + | -----
Class No. 7. Where the marks are made wholly within the square, but some of them are made by lines at right angles to the sides of the squares and some of them are made by lines pointing to the corners of the same, thus:
----- | + | ----- ----- | X | -----
Class No. 8. Where the lines of the mark are made wholly within the square, not touching it, but the lines of the mark are not straight lines but curved or crooked lines, thus:
-------- | | --------
Class No. 9. Where the lines of the mark are made wholly within the square, not touching it, but some of the lines are double lines, thus:
----- | X | -----
Class No. 10. Where the mark although wholly within the square, is made with more lines than are necessary for a cross in the form of a star, thus:
-------- | | --------
Class No. 11. Where the lines of the mark although wholly within the square present only three sides of a cross complete, the fourth side being shorter or incomplete, the mark only having three legs, thus:
-------- | | --------
Class No. 12. Where the lines of the mark although
wholly within the square have slight curls or points at the end of the lines, thus:
-------- | | --------
Class No. 13. Where the marks, although wholly within the square, are somewhat in the form of a check-mark, thus:
------- | | -------
Class No. 17. Where the voter has voted for six councilmen and then rubbed out the cross for one of the councilmen leaving five the proper number to be voted for.
Class No. 18. Where there is ink on the back of the ballot.
Class No. 19. Where there is a wet pencil mark on the face of the ballot, made in folding the ballot.
Class No. 20. Where there is a dot in the square with the cross-mark, dot apparently made with pencil, thus:
-------- | | --------
Class No. 21. Where the mark has a vertical line at the end of one arm but within the square, thus:
-------- | | --------
Class No. 22. Ballots marked correctly in every particular, but challenged by mistake.
Class No. 23. A long pale pencil mark running about two inches across page, apparently a slip of pencil.
Class No. 24. Where the cross is marked wholly in the square and made with blue pencil, but whether indelible pencil or not is not known.
Class No. 25. Blurred lines in square as if cross was rubbed and made over, or wet pencil mark rubbed with hand and cross made over it.
Class No. 26. Unchallenged and uncontested ballots conceded to be good when the examination was made.
Class No. 27. Where mark made with three lines somewhat in the shape of an H, thus:
-------- | | --------
It is agreed that all of the ballots in said boxes were marked in one or more of the ways set out in the above classes of description and that any ruling upon said ballots by the Court below and the Court of Appeals should consider and treat all said ballots as so marked.
The following opinion in the Circuit Court was delivered by BOYD, C.J. and concurred in by STAKE, J., on October 20th, 1902.
In order that it may be more clearly understood what ballots the Court counted or rejected in this case, we will refer to the classes named in the agreed statement of fuct.
We counted those mentioned in classes 1, 2 and 3. We are satisfied that the case of Duvall v. Miller, 94 Md. (51 At. Rep. 570), does not require them to be rejected, as no portion of the cross-marks extends beyond the lines of the squares.
We rejected those in class 4 by reason of the decision in the above mentioned case. On many of those ballots the cross-marks extended so little beyond the lines that it would have been difficult for the voters to have observed it and the Judges of Election could not well have detected this defect under the conditions surrounding them when the ballots were counted. It was impossible for a voter to have his ballot identified by this mode of marking it, and we would have counted those in this class did we not believe that the above decision precludes us from doing so.
We rejected those in class 5 as they are clearly within the rulings in Duvall v. Miller .
We counted those in classes 6, 7 and 8, as we do not understand the statute to prohibit those so marked. It requires the voter to mark his ballot with a cross — for example, and then follows the twenty-fourth letter of the alphabet,
but we do not understand the Legislature to have intended that no other kind of cross can be used, or that it must be of that exact shape.
We counted those in class 9, as it is manifest the voters were simply undertaking to make the cross more distinct.
We rejected those in class 10, as the marks so used might readily be adopted for the purposes of identification.
We counted those in class 11, as we are satisfied those voters meant to make a cross, but it was simply incomplete by reason of one leg not being as long as the other.
We counted those in 12, because we think the benefit of the doubt should be given to voters, and are not satisfied that the curls or points at end were likely to be used as a means of identification.
We rejected those in 13 as that mark might be used for identification.
We rejected those in 17 because the marks appear on the ballots where the voters voted for six councilmen, and then rubbed one out. That might be done for purposes of identification.
We counted the one in 18 as the ink probably got on the back of the ballot during the count of the ballots. It was simply a blot and manifestly an accident.
We counted the one in 19 as the mark was manifestly made in folding the ballot.
We rejected those in class 20 as the mark is so placed on the ballots as to be a ready means of identification.
We counted those in class 21 for the same reason we did those in 12. The difference between the two classes being that those in 21 are more marked than those in 12, but both are apparently marked without design and simply as a result of nervousness or inexperience in the use of pencils. See Standard Dictionary for forms of crosses given by those authors.
Those in class 22 were conceded to be valid.
We rejected those in class 23 because the marks could be used as means of identification, and we cannot say they were not.
We counted those in 24 as the statute does not name the color of pencil and there is nothing to show that those used were not indelible pencils, as they probably were.
We rejected those in class 25 because they were so marked as to be readily used for the purposes of identification.
We also counted one vote for White, which had been rejected by the judges of election, and belongs to class 9, and one for Coulehan which was endorsed A. Schr. being intended by Anthony Schriver, the judge holding the ballots, for his name or initials. The only doubt we have about the latter is that the sanction of such marking might enable a dishonest judge of election to identify ballots, but as there is no suggestion of that in this instance, we counted it.
There were no ballots under the other classes, except in No. 27, and as there was one for each candidate, we have not acted on it.
We rejected the uninitialed ballots in ward 6, including the one marked a and the one having the number 14 on it. The uninitialed ballots being within the decision in Duvall v. Miller, supra, and Leonard v. Wolford, 91 Md. 626 , and the latter two being so marked as they might be identified.
We accepted the ballots in ward 6, subject to the classification in the other wards, as we did not feel justified in rejecting them by reason of the defective returns.
This brings us to the third ward, about which we have had the most difficulty. The testimony of Mr. Haller is that he put his initials on every ballot and it would seem to be equally clear that he wrote them on the back of the coupon, instead of on the ballot proper. Neither he nor any of the other judges detected the mistake, and not one of the ballots found in the box, when the polls were closed, had the initials on, as contemplated by the statute. As the coupons were torn off and destroyed, of course the initials did not appear on the ballots when taken out of the box. The question therefore is whether all of those 464 votes must be rejected by reason of this mistake of the election officers. Sec. 61 of Art. 33, provides that the judge holding the ballots having first written
in ink the voter's name and number upon the coupon attached to one of them, shall deliver said ballot to the voter after having likewise written in ink his own name or initials upon the back thereof. It requires the voter to so fold it that the signature or initials of the judge from whom he received it, and the name and number written on the coupon thereon, but nothing else thereon may be seen. It might be remarked in passing that if this be construed literally, it is a provision that cannot be complied with, as section 52 requires that there be printed on the back and outside the words official ballot for, and a fac-simile of the president of the Board of Supervisors. The place where the initials are to be written is upon the back thereof. We do not doubt that the Legislature intended it to be written on the body of the ballot, as the provision for the destruction of the coupons, and other provisions, show, but anywhere upon the back thereof is a compliance with the language of the law. The judge of the election holding the ballots thought the back of the coupon was sufficient, and put his initials there — doubtless forgetting that it would be torn off and destroyed, although under the language of the law it was perhaps easy for an inexperienced person to be so misled. The judge receiving the ballots does not seem to have observed the mistake, but it is perfectly manifest that he could identify the ballots thus marked as well as he could have done if initialed on the back of the ballots themselves. The voter after marking and folding his ballot hands it to the judge at the ballot-box, who, after the voter is identified, as the person who received the ballot, deposits it in the box, having first detached therefrom its coupon. That judge could see the initials on the coupon, as it is still on it when the voter hands him the ballot, and there could therefore be no question about identifying the ballot, as the official one handed to the voter by the other judge, to say nothing of the fact that the coupon and fac-simile of the signature of the President of the Board of Supervisors are on it.
The object of such provision is to prevent a voter from casting
a ballot, which is not an official one, so as to guard against bribery. No one can doubt that the purpose of the law was fully accomplished by what was done in this ward, and it only remains to determine whether the voters must be deprived of their votes by reason of a mistake of the election officers, although the plan pursued by them was in fact as well calculated to prevent what the statute aims at, as a strict compliance of the statute would have done. It may be argued that some unofficial ballots may in this way have been put in the box, but the uncontradicted evidence is that Mr. Haller marked every ballot and Mr. Martz, who knew that the initials of the judge were required, accepted them. It is therefore a fair and reasonable presumption that every one put in the box was an official ballot which had been handed to the voter. It is unlike the case where some of a number of ballots found in the box of a ward or precinct do not have the initials of the judge, and there is no evidence to explain their action. There is then a presumption against such ballots — the presumption being that as they were not initialed as the others were, and the judges of election being presumed to have done their duty, they were not the official ballots given out by the judge. But there can be no such presumption in reference to those in this ward in view of the uncontradicted testimony explaining how it was done. When the Legislature said that any ballots which do not have endorsed thereon the name or initials of the judge shall be rejected, it evidently did not contemplate or refer to a case such as this, where none of those found in the box were so endorsed and the absence of the initials was not only accounted for, but shown to be by reason of the fact that they were by mistake of the judge marked on the stub instead of on the body of the ballots. There is no suggestion of fraud or any intentional failure on the part of the judges to follow the requirements of law, and it is not intimated that any fraud was attempted to be committed by the voters themselves.
The Court of Appeals in Duvall v. Miller and Leonard v. Wolford were dealing with cases in which some of a number
of ballots were uninitialed without any explanation of the absence of the initials, and it has not construed these provisions of the statute where the facts were such as we have before us. It seems to us that there is a distinction and we will give the defendant the benefit of any doubt that exists, although by our conclusion on other points he was elected if the vote of this ward be rejected, notwithstanding the fact that we have given the petitioner the benefit of any doubt that might exist in reference to the vote of ward No. 6. The decisions elsewhere are by no means uniform. In the report of the cases of Hope v. Flentge, 47 L.R.A. 806, and Slaymaker v. Phillips, ibid
842, there are many cases on the subject, but we have not found any exactly similar to this where the testimony so clearly explains how the mistake was made. The dissenting opinion in Slaymaker v. Phillips, contains much that we approve of, although we cannot agree to all that learned Judge said. In Caldwell v. McElvain, 184 Ill. 559 , the distinction we have suggested is intimated. It is there said that the presumption is that the judges discharged their duty and if the voter cannot be deprived of his right to vote by the fraud or mistake of the election officers there should be something tending to show the existence of such fraud or mistake. In this case there was no evidence tending to show that the judges failed to put their initials on any ballots; and the Court was right in rejecting the ballots without such initials. The clear intimation of that Court was that the ballots would not have been properly rejected if the evidence had shown fraud or mistake on the part of the election officers. See also Horning v. Burgees, 77 N.W. Rep. 446; (Michigan case), where a number of authorities are collected.
As a summary on the above we have the following result for the respective candidates:
FOR MR. WHITE.
Admittedly valid ballots in wards 1, 2, 4 and 5 388
ward 6 63
Counted under class 1, including ward 6 38
2 85
3 122
Counted under class 6 including ward 6 2
7 12
8 3
9 57
11 20
12 19
18 1
19 1
21 9
22 3
24 8
One ballot rejected by judges of election in ward 6 1
___
832
To which add votes for White in ward 3, according
to foregoing classification, shown in agreed statement:
153
___
Total for White 985
FOR MR. COULEHAN.
Admittedly valid ballots in wards 1, 2, 4 and 5 276
ward 6 82
Counted under class 1, including ward 6 55
2 93
3 191
6 4
7 6
8 10
9 44
11 17
12 31
21 6
22 5
24 6
One in ward 6 not included above 1
___
827
To which add votes for Coulehan in ward 3, according
to above classifications 117
___
Total for Coulehan 944
Thus giving the defendant 41 majority. It is perhaps proper to say that in speaking of admittedly valid ballots in ward 6, it was understood that all in that ward were objected to on account of the returns, but those referred to above were admitted to be valid in other respects. We will pass an order declaring Warren C. White elected. Subsequent history <p>Appeal from an order of the Circuit Court for Allegany County (Boyd, C. J., and Stake, J.)</p> Source: CourtListener
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