Opinion
January 13, 1908.
William N. Dykman [ John M. Digney with him on the brief], for the appellant.
Henry R. Barrett [ Charles H. Young with him on the brief], for the respondent.
Mr. Hopkins and Mr. Moran were opposing candidates for the office of trustee of the village, the former on the Republican and the latter on the Democratic ticket. Fifteen ballots, marked from 1 to 15, were passed upon by the learned justice below. Nos. 1 and 4 were held to be void without dispute, and there is no appeal in respect of them. Nos. 5 to 11, inclusive, were decided to have been properly counted for Mr. Hopkins, and Nos. 12 to 15, inclusive, were decided to have been properly counted for Mr. Moran. This we affirm. The claim as to each that the cross in the circle at the head of the column is not made as prescribed by the statute, but a mark by the voter to enable his ballot to be identified, is not tenable. Each presents a case of clumsy fingers, poorly guided, very likely, by poor eyesight, making the cross as well as they could.
There remain only ballots Nos. 2 and 3. They were both returned as void by the inspectors. No. 2 was decided to be void by the learned justice below, on the ground that the intention of the voter in respect of the office in question could not be determined from it, and No. 3 he counted for Mr. Hopkins. The latter has a cross in the circle at the head of the Independent column and a cross in front of Mr. Hopkins' name in the Republican column. The decision that it be counted for Mr. Hopkins is correct. The decision that ballot No. 2 is void was erroneous. It has a cross in the circle at the head of the Democratic column and also in the circle at the head of the Republican column, and also a cross in front of the name of Mr. Moran in the Democratic column. This latter mark does away with the lack of intention which resulted from the cross in both circles at the head of the columns, and shows the intention of the voter to vote for Mr. Moran. There were two other offices to be filled, viz., that of two water commissioners. There is a cross in front of the name of each of the Republican candidates therefor in the Republican column, and also a cross in front of the name of one of the Democratic candidates therefor in the Democratic column. Taking all these things into consideration, the ballot was not void as marked by the voter to enable his ballot to be identified. Such blunders cannot be construed to that effect.
The order appealed from is affirmed, except that it is reversed in respect of the ballot marked No. 2, and it is ordered that that ballot be counted as giving one vote to Mr. Moran.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Order modified so that ballot No. 2 is counted as one vote for Mr. Moran, and as thus modified affirmed, without costs.