
    TOWNSHIP ELECTION CONTESTS.
    [Circuit Court of Columbiana County.]
    State, ex rel Figley, v. George W. Conser.
    Decided, 1902.
    
      Township Election — Contest of — Quo Warranto the Proper Proceeding — Australian Ballot — Writing in of Names — Use of Blue Pencil ■ • — Destruction of Ballots — Character of May Be Proved hy Parol— Bight of Contest — Estoppel—Sections 2966-13 et seq.
    
    1. In tbe absence of any statutory provision for tbe contest of tbe election of township officers quo warranto is the proper remedy for determining the legality of an election of township trustee.
    2. A statute will not be construed as abridging or repealing the right to contest an election for fraud or mistake, unless such intention is clearly expressed.
    3. In a proceeding to contest the election of a township trustee held under the Austrian ballot law, the rejection and destruction of the ballots by the judges of the election is not final or conclusive, but the contents of the ballots thus rejected and destroyed may be shown by parol.
    4. A candidate who is present at the counting of the ballots, and declared himself satisfied with the result, is not thereby estopped from contesting the election.
    5. The provision of the Australian ballot law that “all marks upon the ballot must be made with a black lead pencil, and the further provision that “no ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” does not render invalid a ballot upon which the contestant’s name was written with a blue pencil; nor a ballot upon which a black pencil line is drawn’ through the name of a candidate, and the name of an opposing candidate written near and partly over it, notwithstanding no cross mark appears opposite the latter’s name; nor a ballot containing a ticket upon which no names of candidates appear under the printed designations of the several offices, whereon a name is written beneath the line designating ■the office for which the candidate whose name thus appears is running.
    Laxjbie, J. (orally); Burrows, J., and Cook, J., concur.
    This is a proceeding in quo warranto, brought to contest the election of the defendant, Conser, as township trustee of Hanover township, in this county.
   It seems that at the election in question there were three tickets on the ballot, known as the Australian ballot. There was a republican ticket, a democratic ticket and a citizens’ ticket, each so headed, and each printed in conformity with-the laws of the state in reference to the Australian ballot. Conser was candidate for township trustee on the republican ticket, Figley on the democratic ticket, and their names, in accordance with the statute, were printed thereon as candidates, but on the citizens’ ticket there was no candidate’s name for that office printed on the ticket, or any township office; but in accordance with the statute, sufficient blanks were left under the printed designation of each office, so that the voters might write the name of such candidate as they desired to vote for.

In this case, according to the count as made by the board, Conser received one vote more than Figley, and they declared Conser elected. There were live or six “ballots rejected, and without any dispute between the judges; and these ballots, with the others, were burned in accordance with the provisions of the statute in that regard.

It is claimed upon the part of the defendant that this proceeding in quo warranto can not be maintained; that quo warranto will not lie and is not a proper proceeding to determine the validity of the election of a township officer. Reference is made to the Constitution of the state, and to decisions of the Supreme Court in regard thereto as to the manner of contesting elections. The constitutional provision (Section 21, Article II) is that the Legislature shall provide for the contest of elections; but the Legislature has not done so in regard to the election of township officers. So that there is no statute of the state which provides, or attempts to provide, for a contest of election of township officers. That being the case, we are at a loss to know why this ancient proceeding in quo warranto can not be brought. It is one which is authorized by the Constitution of the state (Sections 2 and 6, Article IV), and may be brought, therefore, in any case where it might have been brought, unless restrained by some other provision of the Constitution. Prior to the adoption of the present Constitution, it was a proper proceeding to contest the election of officers of the state, and the Supreme Court has held that it. is so now, except as modified by the provision of the Constitution that the Legislature shall provide for proceedings to contest the election of officers of the state. But where the Legislature has not done so, does that deprive the courts of jurisdiction in quo warranto in such cases?

In the case of State v. McLain, 58 Ohio St., 313, 322, this is said by the eminent judge delivering the opinion:

“It is argued, however, in behalf of the state, that quo warranto is the appropriate action for the trial of title to an office; and that by Section 2, Article IY of the Constitution, original jurisdiction in such actions is conferred on this court, of which it can not be deprived, in any degree, by legislation. But that provision of the Constitution should be construed with others in pari materia, and each so restrained as to give harmonious effect to them all; And hence, the jurisdiction conferred by that section is subject to such legislative control as is authorized by other provisions of the same instrument; and legislation enacted in obedience to such provisions has the same effect as if contained in the Constitution itself. In instance of this, by Section 21, Article II, power is conferred on the General Assembly to provide by law ‘before what authority, and in what manner the trial of contested elections shall be conducted;? and a statute enacted in the exercise .of that power was held, in State v. Marlow, 15 Ohio St., 114, to afford the exclusive remedy in such eases, and withdraw them from the jurisdiction of this court in quo warranto, notwithstanding the latter mode of in-, quiry, in the absence of such a statute, was the appropriate one in such eases.”

That is, reference is made to the case of State v. Marlow, 15 Ohio St., 114, upon the question, as establishing the rule that in the absence of such a statute quo warranto is the appropriate remedy in such cases.

So we pass this matter by with the conclusion that this proceeding is properly brought, as there is no statute providing for contest of election of a township officer or township trustee.

As I have stated, the board in this instance declared the vote in favor of Conser, the republican candidate, by a majority of-one; and as 'to the ballots that were rejected, as there was no-dispute about them, or difference in the minds of the judges, they were burned.

' It is claimed on the part of the defendant, Conser, that the action of the judges was final and conclusive, and made so by the provision of the Australian ballot law itself. If this were so, it would be a singular election law; not only a singular one, but an outrageous one, to undertake in such a manner to defraud, substantially, the electors of a township by the fraud, mistake or misapprehension of the judges of the election. One of the inherent and invaluable rights of a citizen of this country is the elective franchise, and the Australian ballot law (Section 2966-13, Revised Statutes, et seq.) was passed especially to protect him in it, so that by no fraud or mistake on the part of the judges of the election, or of politicians and partisans running it, could his privilege be destroyed by taking away from him his vote, or not counting it after it was voted. If. the ballot of one citizen may be rejected by fraud or mistake, and beyond his power to question it, it may be done as to all. And in this ease the proposition is well stated, that if a candidate was declared elected by a majority of one vote, while there were four or five votes uncounted that should have been counted for his opponent, then the majority of the electors in that township were defrauded of their rights, and the judges of the election usurped their power and their right of the elective franchise and took it away from them, and conferred the office upon the man whom the majority voted against. And it is claimed that by inference — not by any direct language in the Australian ballot law, but by a mere inference — that this precious right may be invaded, and the majority of the elector's of a township, county or state (because if it applies to one it applies to all) may thus be defeated of their intention and of their rights in an election of officers of such township, county or state by the . judges through fraud or mistake.

The English language is not so devoid of words that if the Legislature intended to destroy the right of contesting an election in such a case, it could not have expressed it, and the Legislature has not expressed it in direct language. Such result is claimed only by inference from the language used; that, as there was no dispute over the rejected ballots, or differences in the minds of the judges as to them, the burning of such ballots ended the matter; that the Legislature having directed that such ballots should be burned, the inference must be that the Legislature intended that the action of the judges in their rejection should be final and conclusive. If the Legislature so intended, it had the words at command to express that intention, and would have done so, and not left such new and important provisions to mere inference.

The right to contest an election gained by fraud or mistake is one that has been always held in this state as an invaluable one as a matter of public policy, and if the Legislature intended to repeal that inestimable privilege and to establish another and a different rule, the English language is broad enough to have enabled it to express that intention beyond any question or dispute. The Legislature has not done so, and its failure to do so in express terms has convinced us that the Legislature did not have any such intention.

Another proposition of defendant’s counsel is that parol evidence is not competent in this case to prove the contents of these rejected and destroyed ballots. In eases of this kind, it has always been held that where the ballots are destroyed, or where it is impossible to produce them in court, the next best evidence is competent; following the general rule that where the best evidence is unattainable, the next best may be resorted to. The. ballots were destroyed, and admitted to be so, and hence could not be produced, and the universal rule must prevail, that parol evidence may be admitted of their contents.

The question, therefore, is, should these ballots be counted to ascertain whether or not the board of elections had arrived at a correct result in the determination of the poll? I have already said that there were two candidates for this office — two party candidates — Conser on the republican ticket, Figley on the democratic ticket.

’ The Australian ballot law, Section 2966-19, Revised Statutes, provides that the name of any candidate can not go upon the ballot twice. If there are two parties that wish to nominate the same individual for the same office, they may do so, but his name ean not go upon the ballot on the ticket of each. It ean only go upon the ballot under the head of one ticket. And so on this citizens’ ticket neither Conser’s name nor Figley’s name could be printed, and was not. But on the citizens’ ticket there was a blank space under the printed words, ‘ ‘ township trustee, ’ * so that the citizens of the village of Hanover might write the name of Conser or Figley upon the ticket if they wished 'to vote for either for township trustee.

It is admitted on the part of the state that there was one ballot rejected by the board of elections that should have been counted for Conser. His name was written on the ballot in blue pencil, contrary to the provision of the statute that it should be in black, but it is conceded on the part of the state that that vote ought to have been, and may be counted for Conser.

On the other hand, there were two ballots that were cast on the republican ticket which, it is claimed upon the part of the state, should have been counted for Figley, and were not. The evidence shows conclusively that whoever voted those tickets intended to vote for Figley for township trustee. It shows conclusively that the voter first erased Conser’s name by drawing a black pencil line through it, and then wrote the name George Figley below it. The judges concede that they rejected it because the upper part of the capital letters G and F in Figley’s name ran up above the blank over the printed name of Conser. And partly from the whole evidence it appears it was only because of that fact that they rejected those two ballots. It is almost impossible to believe that a voter ran pencil lines across the name of the printed candidate, and beneath his name, or over it, if you please, wrote the name of the opposing candidate, did not intend to vote for that opposing candidate. And we think that those two tickets should be counted for Figley irrespective, too, of the question whether there was a cross-mark made in front of Figley’s name on the tickets or not.

The statute provides that the elector may write in the name of any candidate he favors, and he may write it either in a blank space, where there is no candidate’s name, or over the name of the ticket’s candidate. And the latter part of Section 2966-35, Revised Statutes, declares that no elector’s vote shall be rejected unless it is impossible to determine who he intended to vote for. So that where he writes the name of his candidate in its proper place, who would say that the elector did not intend to vote for the individual whose name he wrote in under the proper designation of the office, whether he put the cross-mark to the left of it or not. Would it be impossible, in such a case, to determine who he intended to vote for?

W. G. Wells and W. 8. Potts, for plaintiff.

J. A. Martin, for defendant.

In regard to the citizens’ tickets, it is claimed that there were three of those where Figley’s name was written in under the appropriate printed head of township trustee, indicating that the voter intended to vote for him. While there is some conflict as to the number, there is no dispute that there were two at least of these where Figley’s name was written in its proper place,' showing that the electors intended to vote for George Figley. for township trustee. And the judges of the election honestly made a mistake in rejecting these ballots. In fact, the majority of them come here as witnesses and admit that they did make a mistake. .They were honest in their action, but that does not affect the right of the elector to have his vote properly counted; and we think, therefore, that these four votes for Figley were erroneously rejected, which would give Mr. Figley a majority of two votes.

It is claimed further that Figley can not take advantage of this error; that he is estopped because he was present and made no objection to the rejection of these votes, and declared that he was satisfied with the result, and had run better than he expected. That he made no such objection and was honestly mistaken, as we think the judges were, as to the legality of the rejection of those ballots, then the mistake of the judges would no more bar this proceeding when he discovers the true state of affairs. When he finds out the true state of affairs, what rule of law is there that would estop him from attempting to secure his rights. Certainly this is not a ease of estoppel. In this proceeding there was a mistake on the part of the judges, and Figley must be declared elected, and the relief is granted as prayed for by this relator.

A decree may be taken accordingly.  