Thomas M. Gunter.

In this case, however, the committee found that the original ballots were correct, and the error was in the returns.

§ 397a. The accidental loss or destruction of the ballots cast at an election in a particular precinct affords no ground for rejecting the return. Even if the ballots and returns were all destroyed by fire it would still be proper to prove by the testimony of the voters themselves the true vote, and thus to give it effect. But the unsworn declarations of voters at such an election as to how they voted are not admissible. (Beardstown vs. Virginia, 76 Ill., 34.) As to the admissibility of such declarations there is some conflict, but the better opinion is as above stated. (See 27 N. Y., 45. 23 Wis., 311. 10 Mich, 296. 9 Kansas, 569.)

§ 398. In Commonwealth vs. Ely, (4 Wis., 420, Brightley's Election Cases, 258,) it was held that if a ballot contains the names of two persons for the same office, when but one is to be chosen, it is bad as to both, but this does not vitiate it as to candidates for other offices, upon the same ticket. It often happens that an elector, without any evil intent, casts a ballot, through inadvertence or mistake, which contains the names of two persons for one and the same office. Tickets are often printed in this way, with a view to giving the voter a choice, which can be indicated by striking off one of the names. It would be a very rigorous and unjust rule to say such a ballot is bad as to all other names on it, because bad as to the two names indicated for the same office.

§ 399. It is well settled that where a limited number of persons are to be chosen to fill a given office -as, for instance, where the law provides for the election by the same constituency of two Represen

tatives in the State Legislature-a ballot containing the names of a greater number for that office is void. It was accordingly held in People vs. Loomis, (8th Wendell, 396,) that where the number of constables to be chosen was limited to four, ballots containing the names of five persons designated as voted for that office, cannot be canvassed, but must be rejected. "If," says Nelson J., "one elector can cast a ballot containing five names, he may one of eight, and thus vote, (if he chooses to insert the names) for both tickets. It would be impossible for the presiding officers to select the four according to the intention of the voter, and four only should be counted." And see State vs. Griffey, 5 Neb., 161.

§ 400. In many of the States there are statutory provisions prohibiting the marking of ballots, or the placing upon the exterior thereof any character or figure. The purpose of these statutes is, of course, to protect the secrecy of the ballot, and public policy demands their enforcement. Cases will arise, however, in which it will be found very difficult, if not impossible, to carry out strictly all provisions of this character. We have shown in another connection, that, although the law forbids the numbering of ballots, yet, if under a misapprehension of their duty, the judges of election number all the ballots to correspond with a number opposite to the name of the voter on the poll list, and if no one is injured thereby, the ballots thus marked should not be rejected. [McKenzie vs. Braxton, 42d Congress.]

§ 401. And it has also been held that where the statute provided that all ballots should be written or printed upon white paper without any marks or figures thereon, to distinguish one from another, ballots upon paper tinged with blue, and which had ruled

lines, were legal ballots within the meaning of the act. [People vs. Kilduff, 15 Ill., 492.] This ruling, however, went upon the ground that the ruled paper was not used with any intent to violate the statute, and it is quite clear that where the statute distinctly declares that ballots having distinguishing marks upon them shall not be received, or shall be rejected, it should be construed as mandatory and not simply directory. And so it was held by the Supreme Court of Pennsylvania, under a statute of this character, that ballots having an eagle printed thereon were in violation of the law and should be rejected. [Commonwealth vs. Wallper, 3 S. & R., 29. Luzerne Co. Election, 3 Penn., L. 7. 155. Clinton Co. Election, ibid, 160]

§ 402. Where a statute prohibits the marking of ballots so that they may be distinguished by others than the voter, and declares such ballots void, there is good reason for construing such statute as mandatory. Such marks destroy the secrecy of the ballot, and it is well known that the plan of voting by ballot, instead of viva voce, was adopted for the very purpose of securing to every voter absolute secrecy if he desires it, and protecting him therein, and this was thought necessary in order to place the poor and dependent voter in a situation where he may act according to his own judgment, and without intimidation from the rich or powerful. In Commonwealth vs. Wallper, [supra,] the Supreme Court of Pennsylvania said:

per

"The engraving [on the ticket] might have several ill effects. In the first place it might be ceived by the inspectors, even when the ticket was folded. This knowledge might possibly influence them in receiving or rejecting the vote. But in the next place it deprived those persons who did not vote the German tickets, [which had an eagle on

them] of that secrecy which the election by ballot was intended to secure. A man who gave in a ticket without an eagle was set down as anti-German and exposed to the animosity of that party. Another objection is that these symbols of party increase that heat which it is desirable to assuage."

§ 403. The Supreme Court of California has very recently had occasion to consider the force and effect of a statute regulating the size and form of ballots, the kind of paper to be used, the kind of type to be used in printing them, &c. The Court held, and we think upon the soundest reason, that as to those things over which the voter has control, the law is mandatory, and that as to such things as are not under his control, it should be held to be directory only. [Kirk vs. Rhoades, 46 Cal., 398.] The conclusion of the Court was that the purpose and object of the statute was 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, and that it should have such a reasonable construction as would tend to secure these important results. And so construing the statute the Court concluded that a ballot cast by an elector in good faith, should not be rejected for failure to comply with the law in matters over which the elector had no control; such as the exact size of the ticket, the precise kind of paper, or the particular character of type or heading used. But if the elector wilfully neglects to comply with requirements over which he has control, such as seeing that the ballot, when delivered to the election officers, is not so marked that it may be identified, the ballot should be rejected.

§ 404. A statute of Indiana provided that all ballots should "be printed on plain white paper, with

out any distinguishing marks or other embellishment thereon, except the names of candidates and the offices to be voted for," and that "inspectors of election shall refuse all ballots offered of any other description." Under this statute it has been repeatedly held by the Supreme Court of that State that a ballot may be headed with the words "Republican ticket," or "Democratic ticket," printed on the same side with the names of the candidates. These are not "distinguishing marks or embellishments," within the meaning of the statute. The law was framed to forbid any marks or characters on the exterior of the ballot to distinguish it, and thus destroy its secrecy. [Druliner vs. State, 29 Ind., 308. Napier vs. Mayhew, 35 Ind., 275.] And this ruling was followed by the lower House of the forty-third Congress, in the case of Neff vs. Shanks. And see Wyman vs. Lemon, 51 Cal., 273.

§405. There are also in some of the States laws requiring that the voter shall endorse on the outside of his ballot the name of the office voted for. These statutes are generally held to be directory only. Thus in People vs. McManus, 34 Barb., 620, it was held that a ballot endorsed "for trustees of public schools," instead of common schools, was sufficient. The intention of the voter must control, and therefore, if that intention is clearly manifested, it is enough. [People vs Matteson, 17 Ill., 167.] Andit was held in Wisconsin, that where the description or designation of the office on a ballot is applicable to two or more offices, parole evidence is admissible to show which of them was intended by the voter. [State vs. Goldthwait, 16 Wis., 146, and see State vs. Elwood, 12 Wis., 552.] If a ballot contains the names of more persons than are to be voted for, for a specified office,