Duvall v. Miller

■Page, J., delivered the opinion of the Court. The questions in this case arise upon the rulings of the Cir ⁷⁰⁷ cuit Court for Prince George’s County, on demurrer to the petition filed by the appellants. After stating the qualifications of each of the appellants to be a County Commissioner, and that at the general election held on the 5th of November last they were candidates for the said office against the appellees, the appellants allege in their petition that the appellees were certified as elected by the election officers but that notwithstanding said certificate and return, the petitioners in fact received a plurality of all lawful ballots cast at said election for the legally qualified candidates for said office, and were duly elected over all competitors to said office of County Commissioner ; and each of the petitioners charged “ that the result certified as aforesaid, was owing to the following irregularities, errrors and wrongful acts of the Judges of Election at said election, in not receiving and counting legalb&Wots offered and cast thereat for each of your petitioners.” Then follow three specifications of error, which to avoid repetition will be fully stated hereafter. The petition then proceeds to allege that such “errors, irregularities and wrongful acts,” occurred in every election district and precinct in the county, so that between 500 and 1,000 “ legal ballots ” cast for the appellants were rejected and not counted, and that the same were sufficient in number to elect the appellants ; that a count of said ballots was necessary to ascertain the true result of the election, and that notice of intention to contest the election was served on each of the appellees by the appellants within ten days after the announcement of the result of the election.

The prayer of the petition is, 1st: That the Court assume jurisdiction of their contest. 2nd: That the appellees be required to answer. 3rd: That the said rejected and uncounted ballots be inspected and counted; and 4th, such other and general relief as the case may require. The appellees demurred, and assigned as reasons therefor. 1st. That the allegations of the petition are too vague, uncertain and indefinite, and 2nd. That the case made by the petition is insufficient in law.

The Court sustained the demurrer and the appellants appealed. ⁷⁰⁸ As to the first ground of demurrer. In Leonard v. Woolford, 91 Md. 626 , this Court has laid down the degree of certainty required in a petition of this kind. It was held in that case that it was not the same as in “pleadings between parties to a suit at law,” but that the averments would be “sufficiently definite and precise if they put in issue the fairness and accuracy of the return of the board of canvassers.” And in Mann v. Cassidy, 1 Brewster, 27, cited in Leonard v. Woolford, supra, it was further said that “all that the Court can require is, that it shall state in an intelligent manner, and with due precision, such facts as, if sustained by proof, would show that there has been an undue election and false return.” Now it is set forth in this petition that between five hundred and one thousand legal ballots cast for the petitioners, were not counted for them; and if they had been, the result of the election would have been changed. It is contended that it was error to have denominated them as “legal ballots,” because that was to aver what was only matter of law.

But conceding this, it does not follow that the element of fact contained in the averment would be in consequence eliminated. There would still remain the statement, the allegation of fact, that so many ballots were not counted. The demurrer would concede this fact, but not that they were “legal” ballots. On demurrer only such matters of fact as are well pleaded will be taken to be true.

The naked allegation, (that so many ballots were not counted), would not be sufficient to support the petition ; because if it stood alone, there would be no statement of fact from which it might appear that the ballots were legal ballots. It is only on account of the rejection of legal ballots that the appellants could have the right to complain. There are other averments however in the petition which must be considered in this connection. The reasons why these ballots were rejected are also set forth.

It is charged that it was because of the several matters of" fact, contained in and particularly set forth in Clauses A, B and C of paragraph four of the petition. If the facts set forth in these clauses are true, and are ⁷⁰⁹ not sufficient in law to justify the action of the judges in rejecting the ballots, then the appellants have made out a case, upon which they would be entitled to the relief prayed for in the petition. The averments of the petition are therefore, in our opinion sufficiently definite and precise, to put in issue the fairness and accuracy of the returns of the Judges of Election. i. The next question presented by the demurrer is, do the facts alleged in Clauses A, B and C of paragraph 4, show that the judges committed an error in rejecting the ballots.

Clause A, is, in effect, that between two hundred and four hundred ballots were wrongfully rejected, “because a portion of the cross-mark of the voter in one or more of the spaces provided on the official ballot for the same, slightly extended beyond the lines bounding said space or spaces, without, however in any manner furnishing a clue to the identity of the voter voting the same or any» doubt as to his intentton.” It was contended at the argument on one side, and denied on the other, that, by a proper interpretation of the statute, to constitute a legal ballot, the whole of the cross-mark must be within the space provided for the same on the official ballot; and that the ballot will be invalid and should not be counted if any portion of the cross extended beyond the lines of that space. The statutes applicable are found among the several sections of Art. 33, of the Code of Public General Laws, as amended by the Act of 1896, chap. 202, and by the Act of 1901, chap. 2. Sec. 49 makes it the duty of the supervisors to prepare the ballot, directs what each shall contain, and makes all other ballots void and not to be cast or counted. Sec. 50 provides what the form and arrangement of the ballot shall be, and among other things prescribes, that, “ballots shall be so printed as to give to each voter a clear opportunity to designate by a cross (X) in a square at the right of the name of each candidate.” Sec. 61 provides how it shall be voted; the voter “shall prepare his ballot by marking with an indelible pencil after the name of every person or persons for whom he intends to vote, and to the right thereof, in the ⁷¹⁰ blank space provided therefor, a cross—for example, (X).” The “blank space” referred to in this section, is therefore the “square” mentioned in sec. 50.

By sec. 66, the judges must reject, all ballots “deceitfully folded together,” all which do not have endorsed thereon the name or initials of the judge who held the ballots; and “if the voter has marked more names than there are persons to be elected to an office, or if there shall be any mark on the ballot, other than the cross-mark in a square opposite to the name or names of any candidate written by the voter on the ballot as provided in sec. 49, his ballot shall not be counted.” From this statement of the law, it must appear, and we do not understand that it was controverted in the argument, that if effect is to be given to the words of the statute according to their plain import, all ballots must have the cross-mark wholly in the square. Every provision of the Act touching the matter seems to keep this requirement in view. The ballot must be prepared with a square, printed to the right of each candidate or question to be voted for, so that each voter shall have “a clear opportunity” to designate his choice, by “a cross in a square;” when the voter prepares his ballot he shall mark it “in the blank space provided]' and when the count is made, no ballot shall be counted that contains any other mark other than the cross in the proper square. It would seem to be clear, that if the cross be not wholly within the square, it is then not “in” it, but only partly in and partly outside.

There are no words in the Article, other than those quoted, that either directly or by construction can be held to import that the presence of part only of the cross in the square would meet'the requirements of the statute. Unless by a forced construction, or by reading something into the statute that is not now there, can it be held that if the voter’s choice be capable of ascertainment from what he has actually done, his ballot shall be counted if he has acted honestly and made a bona fide attempt to follow the provisions of the law. That rule has been adopted in some cases elsewhere, as will be noticed hereafter, but in all such cases there was some positive provision of the ⁷¹¹ law, to warrant its adoption. Here there is nothing to qualify the words used in the provisions we have cited.

These words are precise, clear and unambiguous, and unless, as we have said, something else can be read into the statute that does not now appear in it, it is difficult to determine that the Legislature meant anything but what it has plainly expressed. If we are correct in this, there is no room left for construction. Courts cannot even to give effect “to what they may suppose to be the intention of the Legislatuare, put upon a provision of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the Act.” Maxwell, &c., v. State, 40 Md. 293 . But it is contended on the part of the appellants that, if the provisions in respect to marking the ballot be interpreted in connection with other provisions of the Article, at the same time keeping in view the objects and spirit of the legislation, and observing well recognized rules of interpretation applicable in such cases, it will not be necessary nor improper to hold that they require no more than that the cross shall be substantially in the square.

Or in other words that though it may appear that the cross is only partly in the square, yet if it does not appear that the voter has been actuated by improper motives, but has used an honest effort to comply with the provisions of the law, and has performed the act of marking irregularly only by reason of his blundering or ignorance or innocent error, and the voters choice can be fairly ascertained, then the ballot should be counted if the cross is substantially within the square. This contention involves an inquiry into the objects and purposes of the legislation and the general scheme that pervades the system, which the Legislature has provided for the regulation of the elective franchise. It seems to be clear that the fundamental principles that differentiate the present system from that which preceded it is the establishment and maintenance of the secrecy of the ballot; whereby the voter shall be compelled to express his choice in such a manner that it is impossible for it to be known for whom he has voted. The objects underlying the Act are ⁷¹² to preserve the purity of the ballot, and to protect the voter in the free and untrammelled exercise of his right to vote according to the suggestions of his preferences or his reason, ■without interference by bribery or intimidation or other improper means.

To these ends the statute provides that the ballot shall be prepared by the public authorities, in a form particularly prescribed; it requires that the voter shall cast it in the manner also particularly described and that his choice shall be determined by certain markings upon the ballot. But little if anything is left for the decision of the judges in respect of determining the voter’s intention. It is apparent we think that the statute contemplates that the marking of the ballot itself shall be the index of the voter’s intention. There are no provisions like those to be found in the statutes of some of the other States of the Union.

While the statutes in some of the States require the voter to express his choice in the manner designated by the law, yet they also permit the Judges of Election to examine the ballot and count it, whenever by any means it can be determined what the intention of the voter is ; and in such States.the provisions as to the marking the ballot have very properly been regarded as directory only. In Parker v. Orr, 158 Ind. 614 , the Indiana statute required that the voter should mark his ballot with a cross in the appropriate space or margin; but there was also another provision which plainly meant, the Court said, “ that if the voter’s choice could be ascertained from his ballot, it shall be counted if it could be done consistently with other provisions of the object of the Act.” It .was therefore held in that case that “ the voter’s intention must be manifested by a cross, substantially in the place designated, which the Judges of Election can see was an honest attempt to follow the directions of the law.” We have cited this case among many others of the same class to illustrate more clearly our meaning in the case at bar. We do not mean to express any approval or disapproval of what was there said, except that the decision of the Indiana Court was probably a fair construction of a statute which, although it required that the voter shall prepare and ⁷¹³ cast his ballot in the mode particularly described, yet contained provisions that permitted the Election Judges to count an irregularly marked ballot whenever the choice of the voter could be fairly ascertained. Our statute however does not contain any provision that authorizes the election