
    Brandenburg v. Hurst.
    Jan. 20, 1942.
    Leebern Allen for appellant.
    Hunter -Shumate for appellee.
   Opinion op the Court by

Stanley, Commissioner

Reversing.

This is a contest of the election of sheriff of Lee County. On the face of the returns Robert Brandenburg, Democrat, received 1508 votes and Zach T. Hnrst, Republican, received 1503. Hurst filed tbe contest upon tbe ground that a number of illegal votes bad been cast for bis opponent. He asked a recount of tbe ballots by tbe court. Tbe contestee filed a counter-contest upon tbe same ground, and in addition charged tbe violation of tbe Corrupt Practice Act by bis opponent. Upon a recount tbe circuit court found that Brandenburg was entitled to 1400 votes and Hurst 1426, thus giving a majority of 26 for tbe Republican candidate. Tbe trial of tbe other issues was continued, apparently until after tbe disposition of this appeal.

One of tbe judges of tbe election in Beattyville Precinct No. 1 testified:

“I was Judge of tbe election in Beattyville, Precinct No. 1, and afflicted somewhat with rheumatism. I signed part of tbe ballots on tbe back on tbe line followed by tbe word 'Judge’ but not all. I do not know bow many I signed, nor bow many tbe Clerk signed. I told him to sign them for me.”

It was established that tbe name of tbe judge bad been signed by tbe clerk on 216 ballots. Tbe question is therefore presented whether these ballots were invalidated by tbe failure of a judge of tbe election to sign bis name in person on them. Section 1460 of tbe Statutes provides, “before tbe ballot is delivered to tbe voter to be voted one of tbe judges shall sign bis name on such blank line and no ballot not so signed by one of tbe judges shall be counted by tbe canvassing board whose duty it is to certify tbe results of tbe election. ’ ’ Tbe trial court construed tbe applicable opinions of this court not to be harmonious. He was of opinion that a strict construction of tbe law which requires that tbe judge of tbe election shall himself write bis own signature would result in greater security against fraud by substituting another ballot — which is tbe manifest purpose of the provision— should prevail over a liberal construction even though it results in tbe disfranchisement of many citizens and possibly hampers tbe speed and ease in which elections should be held. Therefore, tbe court ruled that tbe ballots were invalid. This reduced Brandenburg’s vote by 110 and Hurst’s by 82. We consider this ruling. .

Our interpretation of tbe quoted provision of Section 1460 of tbe Statutes is that it is mandatory and tbe full name or the initials and surname of one of the judges of the election must be signed; that the mere initials or the given name without the surname or the surname without the initials or given name is not sufficient. Johnson v. Caddell, 250 Ky. 640, 63 S. W. (2d) 810; Campbell v. Little, 251 Ky. 812, 66 S. W. (2d) 67; Wurts v. Newsome, 253 Ky. 38, 68 S. W. (2d) 448; Hogg v. Caudill, 254 Ky. 409, 71 S. W. (2d) 1020; Petry v. Hatcher, 260 Ky. 426, 86 S. W. (2d) 142. Those decisions may be said to involve the element of quantity of the signature or what shall be done. It is true that in some of the opinions [250 Ky. 640, 63 S. W. (2d) 813] it is written that the statute requires the “writing of his name” by the election officer. The statement is subject to the construction that he must himself write or sign his own name; but the expression as used in the first of those opinions (Johnson v. Caddell, supra) is followed by the parenthetical clause “rather than only his initials.” This indicates that the mind of the writer was on the character or extent of the signature rather than upon the method to be used. In the consideration of that aspect of quality or hoiv the signing shall be done, we have held that the use of a facsimile rubber stamp is sufficient. Wurts v. Newsome, supra. The same ruling has been given as to the signing of the ballot by the clerk of the election under Section 1471 of the Statutes. Hogg v. Caudill, supra. We have held specifically that since the statute does not expressly require that the judge of the election shall personally sign the ballot, under the general law he has the right to delegate to another officer of the election the signing of his name in his presence. Pardue v. Webb, 253 Ky. 838, 70 S. W. (2d) 665. The validity of this manner of signing was recognized in Petry v. Hatcher, supra, and Wright v. Crase, 273 Ky. 76, 115 S. W. (2d) 318. The opinion in the Pardue case fully considers the subject and further comment would be superfluous. Perhaps it would be a better safeguard of the ballot to require that one of the judges shall personally sign his name, but the legislature has not so expressly provided. We adhere to the interpretation of the statute heretofore given. .

It is submitted there is no evidence that the judge of the election was present when his name was signed by the clerk or that each ballot was signed at his direction ; hence, under the Pardue case, the court was required to hold the act not a legal signature. The judge of the election is required by tbe law to be present at all times during tbe conduct of the election, and it is presumed tbat be did bis duty and was present when bis name was signed. His statement is enough to cover all ballots.

Therefore, we are constrained to bold tbe ruling of tbe trial court on this point was erroneous and tbat tbe 216 votes involved should have been counted.

In listing tbe candidates to be voted for tbe office of State Senator was at tbe top. There was no Republican candidate for tbat office in Lee County so tbat there were only blank lines, followed by tbe usual squares for stamping should a voter desire to write in a name and vote for tbat person. There was a Democratic candidate for State Senator whose name was printed at tbe "top in tbe adjacent column. Nine voters stamped their ballots in tbe squares opposite tbe blank line in tbe list of tbe Republican candidates without filling in any name for senator and without voting in any other race. Tbe question is presented whether those nine ballots should be counted for tbe Republican candidate for sheriff, which, of course, would be to regard tbe ballots as having been voted for all other candidates in tbe Republican list. Tbe identical question was presented in Baker v. Dinsmore, 138 Ky. 277, 127 S. W. 997, and we held tbat such stamping of tbe ballot was no vote at all. Tbe reasoning-in Thompson v. Boling, 240 Ky. 340, 42 S. W. (2d) 321, would seem to militate against or weaken our conclusion in tbe Baker case, and we pointed out tbat tbe authorities on tbe proposition are not uniform. But tbat case involved the question of whether tbe stamping in tbe box opposite tbe blank line which is provided in each race for the writing- in of a name should be counted for tbe candidate for that office whose name was printed last or nearest tbe stencil mark. We held tbat such candidate was entitled to tbe vote and distinguished tbe Baker case. Where one simply votes in a race where there is no candidate ’s name printed and be does not write in tbe name of anyone else, be does not vote for anyone. Tbe trial ■court so ruled and we concur in tbat ruling.

There were 76 other ballots disputed on account of the manner in which they were marked. In most instances tbe trial court found tbat an ink mark in or near tbe square opposite tbe name of either tbe contestant or tbe contestee, which would have bad tbe effect of nullifying tbe clear stencil mark for bis opponent, was a blot caused in the folding- of the ballot from too much ink being used in stamping it for one or the other candidate for county judge. There were some ballots questioned upon other grounds. The special judge, Honorable John L. Vest, in a well-considered opinion, gave his reasons for counting- or rejecting- every one of these ballots. We have gone over every one of them for ourselves and have come to the same conclusion in respect to each of them excepting two; but the result is the same. A voter had stamped under the Democratic device, the familiar proud game cock, and then rubbed or smeared out the imprint. There is a clear stencil cross mark under the Republican device, the lowly log cabin; also in the square opposite the Democratic nominee for county clerk. Another ballot had a rubbed out imprint under the Republican device and a clear one under the Democratic emblem, but none for any separate candidate. The circuit court threw out both ballots. It is the prevailing- rule that where an erasure is apparently made to correct an error and the intention of the voter is manifest the vote should be counted. It is otherwise if the attempted erasure was apparently intended as a distinguishing mark or is of such a nature as easily to identify the voter. 18 Am. Jur., Elections, Section 193. We think both ballots should have been counted; but one offsets the other.

The counting of the 216 ballots in the Beattyville precinct thrown out by the trial court and the two just referred to results in the ascertainment that the appellant Brandenburg- received 1511 votes and the appellee Hurst 1509, thus giving- the appellant a majority of two votes.

The judgment is reversed and the case remanded for consistent proceedings.  