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(Form of tickets.) by the supreme court of New Jersey, that if the usual place of meeting of a religious society have been changed by them, an election of trustees at the old place of meeting, is invalid. Miller v. English, 1 Zabr. 317. Ånd see Juker v. Commonwealth, 20 Penn. St. R. 493 ; Commonwealth 0. County Commissioners, 5 Rawle 75; Marshall 0. Kerns, 2 Swan 68; Foster v. Scarff, 15 Ohio St. R. 535.
CARPENTER v. ELY.
In the Supreme Court of Wisconsin.
DECEMBER TERM 1855.
(REPORTED 4 Wisconsin 420.)
[Form of tickets.]
If a ballot contain the names of two persons for the same office, it is bad as to both; but this does not vitiate it as to candidates for other offices upon the same ticket.
Where there is a doubt as to the person intended to be voted for, by reason of a misspelling of the surname, or of the addition of a different or erroneous Christian name, facts and circumstances of public notoriety, dehors the ballot, connected with the election and the different candidates, are competent evidence to ascertain for whom the ballots were intended to be cast.
It is competent for the court and jury to go behind the certificate of the canvassers, for the purpose of determining who was legally elected to a contested office.
This was an information in the nature of a quo war. ranto, exhibited by the attorney-general, at the relation of Matthew H. Carpenter, against George B. Ely, to inquire by what authority the defendant claimed to exercise the office of district-attorney of the county of Rock.
There was a special verdict finding that the general election held in the county of Rock, on the Tuesday next succeeding the first Monday of November 1854 (aside from the town of Turtle), was in all things duly held and conducted; that at said election, there were cast, for the office of district-attorney, ballots as follows: for George (Form of tickets.) B. Ely, 1098; for George B. Ela, 8; for Ely, 3; for Ely Ely, 1; for Matthew H. Carpenter, 1081; for D. M. Carpenter, 4; for M. D. Carpenter, 2; for M. T. Carpenter, 1; for Carpenter, 1; and for S. J. Todd, 676. That in the town of Turtle, the election was regularly held according to law, and that the following ballots were there given for district-attorney: for S. J. Todd, 106; for Matthew H. Carpenter, 28; and for George B. Ely, 3. That a certificate of election was given to the defendant, who gave bond and took the oath of office, but performed no official duty prior to the 8th January 1855. That the ballots above mentioned, containing the name of Carpenter, were all intended for Matthew H. Carpenter, but were not abbreviations of his name; that those cast for George B. Ela were intended for the defendant; and that the relator was duly and legally elected to the said office of districtattorney. The questions arising upon the evidence and upon the rulings of the court below, are fully stated in the opinion.
Smith, attorney-general, for the relator.
Ely, defendant, in propriâ personâ.
COLE, J., delivered the opinion of the court. This was an information in the nature of a quo warranto, filed against the respondent for an alleged intrusion into the office of district-attorney for Rock county. The respondent, in his plea, in substance, sets up an election to the office, at the general election in November 1854; that he had received a certificate of election from the clerk of the county-board of supervisors of said county, had filed his bond and taken the oath of office, and therefore might lawfully enjoy and exercise the same. Issue was taken upon the allegation of the plea, that the respondent was duly and legally chosen and elected to the office of district-attorney, and that he received a greater number of (Form of tickets.) votes for that office, at said election, than any other candidate; this issue was sent to the circuit court of Rock county for trial; the jury found a special verdict, upon which the relator now moves for judgment. The questions raised upon the argument can be conveniently considered in the order they are presented to us in the finding of the jury.
The ballot cast in Magnolia, which was rejected by the town-canvassers, because it contained the names of two persons for the office of senator, should have been counted for the respondent. That ballot was undoubtedly bad, so far as the office of senator was concerned; there was but one senator to be elected, at that election, in the Magnolia senatorial district, while the ballot contained the names of two persons designated for the office, and as a matter of course, it was impossible to tell who was intended to be voted for. R. S., ch. 6, § 28. But the fact that the ballot was not good as to the office of senator, did not necessarily vitiate the whole ballot; it was, with the exception of this circumstance, entirely regular as to the office of district-attorney, and other officers upon the ticket, and we can see no valid objection to counting it as to them. It frequently happens that an elector, through inadvertence or mistake, casts a ballot which contains the names of more than one person for the same office, while there are a dozen other names upon it, for as many different offices, all regular and proper; and it seems rather a rigorous rule, to declare that he shall lose his vote as to all, because the ballot is bad in one particular. If he lose his vote as to the office for which his ballot is double, it would seem to be all that public policy, the security of the ballot-box, or a sound construction of the statute, requires.
The vote in the town of Turtle was rejected by the county-canvassers, because no poll-list, with the oath of inspectors of election of said town, accompanied the statement of votes made and sent by such inspectors to the clerk of the county-board of supervisors, in conformity to
(Form of tickets.) the provisions of ch. 6, § 29; otherwise, the statement was regular and unexceptionable, and was delivered by the chairman of the town-board of supervisors to the clerk, within seven days after the election. Upon the trial of the cause, the town-clerk of Turtle was produced and sworn to records of that town, on file in his office, to show that the election was regularly notified and conducted, and that the votes were ascertained and canvassed according to law; and also to show the number of votes cast for the different candidates for the office of district-attorney in that town. The chairman of the town-board of supervisors of the town of Turtle was also sworn and testified, that he acted as one of the inspectors of election, at that election, that such inspectors were duly sworn, before the polls were opened, and that the election was conducted in strict conformity to the statute. All the testimony was admitted subject to objection as to its competency, but we are of opinion, that it was legal and competent. The jury, in their special verdict, also find that the election in that town was regularly notified and held according to law.
Under these circumstances, the twenty-eight votes given for the relator in that town, for the office of district-attorney, and the three given for the respondent, without all doubt, should be counted for them respectively. It is true, ch. 6, $ 25, requires that the oath taken by the inspectors shall be annexed to and returned with the pollbook, to the clerk of the board of supervisors; while $ 49 makes it the duty of the inspectors to enclose one of the poll-lists with the statement of votes made by them. Whether these provisions of the statute must be strictly complied with, before the county-canvassers are authorized to receive and act upon the statements thus made to them, it is not necessary, in the attitude of this case, to inquire; but we do feel it our duty to say, that they are certainly safe and salutary provisions of law, and ought not to be disregarded by inspectors of elections. The duties of these canvassing boards are, in the main, ministerial. Attorney
(Form of tickets.) General v. Barstow, 4 Wis. 567; People v. Van Slyck, 4 Cow. 322; Ex parte Heath, 3 Hill 42; People v. Stevens, 5 Hill 616, Nelson, C. J. But perhaps, the board of countycanvassers might, under the provisions of $ 95, have canvassed the Turtle vote, notwithstanding the informality in the return. Conceding, however, that the county-board decided correctly upon the facts before them, in this proceeding we are bound to go back and rectify this mistake or omission, and count the vote; for it is the election by a plurality of votes which constitutes the right to an office, and that right cannot be defeated by the mistake, negligence or misconduct of the canvassing boards. AttorneyGeneral v. Barstow, 4 Wis. 567; People v. Vail, 20 Wend. 12; Ex parte Heath, 3 Hill 42.
It further appears, from a stipulation filed in the cause, and the jury so find in their verdict, that there was given at that election for the office of district-attorney for said county, not including the vote in dispute in Magnolia, or the votes given in the town of Turtle: for George B. Ely, the respondent, 1098 votes; for George B. Ela, 8 votes ; for Ely Ely, 1 vote; for Ely, 3 votes; for Matthew H. Carpenter, the relator, 1081 votes; for D. M. Carpenter, 4 votes; for M. D. Carpenter, 2 votes; for M. T. Carpenter, 1 vote; for Carpenter, 1 vote; for S. J. Todd, 676 votes. The relator claims that all the votes which were cast for Carpenter, with the different initials, were intended by the persons who cast them, to be cast for him, the relator; and the respondent claims that the eight votes cast for George B. Ela, being idem sonans with his name, should be counted for him, the respondent. The following facts, which were stipulated or agreed upon by the parties, were admitted in evidence, subject to the respondent's objection as to their competency. That before the election in November 1854, it was announced to the electors of Rock county, in all the newspapers printed in the county, that George B. Ely and Matthew H. Carpenter would be, and were candidates for the office