
    JAMES MATTOON vs. E. W. BARNARD, Inspector of Election. ALBERT HORNER vs. E.W. BARNARD, Inspector of Election.
    Mandamus.
    Before Judd, C.J.
    Decision Rendered February 23, 1892.
    Not hitherto reported.
    Mandamus lies to compel Inspectors of Election to count ballots erroneously rejected, and to reject ballots erroneously counted, and then to deliver a certificate of election to the successful candidate.
    A ballot should be rejected if the cross mark upon it is enclosed in a parenthesis.
    
      Whore inspectors of election had withdrawn a ballot because the number of ballots exceeded by one the number of names checked off on the list of voters, they should, upon discovering that they had by an oversight omitted to check off the name of one person who had voted, recount the ballots, including the one they had withdrawn.
   Decision of

Judd, C.J.,

delivered orally.

Although there is nothing in the statute excepting the right of the person whose interests are affected to apply for a writ of mandamus, yet I think it is a writ which will always lie against a ministerial officer to require him to do any ministerial duty; so I think that both the writs are properly brought. Certainly if this was not the case, there might a great many frauds arise, and, if the position is a good one, to-wit, that the opinion of the majority of the inspectors is final and binding in all cases, whenever made (and they must make their decisions immediately) unless there be a contested election, strictly in accordance with this statute, I say these frauds never could be righted.

I suppose that if I should find these two votes in the first precinct, that were not counted by the inspectors, to be legal and entitled to be counted, the mandamus would have to be sustained in that way; that is, I should direct the inspectors to count those two ballots for Mattoon, as improperly rejected, and thereupon to deliver him a certificate of election.

It is a very nice question and entirely new to me, because I have not read the law carefully as regards the marking of ballots. I regret very much indeed that these parentheses were used in the statute. We know what parentheses are, and they are called brackets very often. They are published both round and in the square form. They are used to separate words typographically where quotation marks are not used. I suppose the context of the law requiring a cross mark — -requiring a voter to mark a cross on the ballot, as the language of the statute is, should control. I regret very much that this misleading character has been printed so many times in this Act. It is very unfortunate with our constituency of illiterate voters, whom I suppose do not know what a parenthesis is, and do not know what its signifiicance is. But I am unable to come to the conclusion that Mr. Neumann urges upon me, that that is the correct method of marking a ballot. If I did, I should have to come to the other conclusion, that all the votes that did not contain that mark should be rejected; that is a contention that I would not sustain. If it -had been printed by the officials who prepared the printed ballot — that is, if the parentheses had appeared on the printed ballot and the cross had been inserted between them, that‘would perhaps be a different question than if made by the voter. But, as has been well said, the object of this law is to prevent marks being made by which a ballot thereafter could be identified and a bribe secured on the shown fulfillment of the agreement.

I think the people who voted that way thought they were voting correctly, and it is unfortunate that the sample cross has been given in this way in the printed instructions to voters. But I have got to meet it, and I think that the law intends that a cross on the right hand side of the ballot be made by the voter, and nothing else; and for that reason I decline to make the writ peremptory on the application of Mr. Mattoon.

And, having come to this conclusion, I feel bound to say that in the second case, the application by Mr. Horner, that there is enough on the return made to the Minister of the Interior to indicate to my mind that the inspectors did then and there, wherever they signed that paper, make a new count, and they found that they had drawn out a ballot so as to make the number correspond with the number of persons voting, by mistake, and it was proper to count in the withdrawn ballot. Conscientious men should make a recount to see if they had made a mistake. The answer of Mr. Barnard shows that they had conscientiously thought they had made a mistake, through error in not checking off the name of the Portuguese who had voted in this case. The withdrawn ballot was for Mattoon, and I think it is proper to count that vote for him, and I think it is proper in that case not to order a certificate to issue, for the ballots for Mr. Mattoon and Mr. Horner would each be 79, making a tie. If a new election is requisite the Legislature will order it, I cannot.

Both petitions are dismissed, petitioners in each case to pay-costs.  