#### The State, ex rel. Lust et al., *v.*Board of Deputy State Supervisors of Elections of Crawford County et al.

*Elections*— Parol *evidence to explain tally sheets*— Method *of tabulating ballots*— Mandamus—Certificates *of election of members of cou/nty board of education.*

(No. 18298

Decided April 29, 1924.)

Error to the Court of Appeals of Crawford county.

This is an action in mandamus, begun in the Court of Appeals of Crawford county to require the board of deputy state supervisors of elections of Crawford county to issue certificates of election to the relators, Milo E. Lust and Otto F. Mollencopf, candidates for members of the county board of education at the election held November 6, 1923.

The petition alleges that the relators and Jesse R. Brinkman and William E. Krauter were the candidates voted for by the electors of the county school district for members of the county board of education at that election. The petition further alleges that at said election the relator Mollencopf received 2,234 votes; that Lust received 2,210 votes; that William E. Krauter received 2,'203 votes, and no more, and Jesse R. Brinkman 2,200 votes, and no more, as shown by the poll books and tally sheets transmitted to the deputy state supervisors of elections of Crawford county by the judges and clerks of the various voting precincts of the Crawford county school district; and that hence the relators were elected as members of the county board *241of education of Crawford county for *the term*of four years, beginning the third Saturday of January, 1924.

The petition alleges in substance that the defendants have refused to tabulate the votes correctly and did erroneously purport to tabulate votes by counting and crediting to said Krauter 97 votes and to said Brinkman 92 votes, and to relator Mollencopf 46 votes and to relator Lust 44 votes, as the total votes received by said respective candidates in Polk township precinct of the said county school district, when the poll book and tally sheet of said Polk township precinct shows upon its face that said Krauter received but 57 votes, and no more, and. that said Brinkman received but 52 votes, and no more, and that the relator Lust received 28 votes, and the relator Otto F. Mollencopf received 46 votes.

The petition further alleged that demand had been made upon the defendants to make a true and correct canvass of the votes cast at the said election, and to issue to the relators certificates of election as members of the county board of education of Crawford county, Ohio, for the terms aforesaid, which the defendants had refused to do.

The petition prayed that a writ of mandamus issue, commanding the defendants to make a true and correct canvass and abstract of the votes cast at the said election for members of the Crawford county board of education, and to carry into the said tabulation from the said Polk township election returns the following votes: To William F. Krauter 57 votes and no more, to Jesse B. Brink-man 52 votes and no more, to Otto F. Mollencopf *24246 votes; and to Milo E. Lust 28 votes, and upon the completion of the said tabulation to issue to the relators certificates of election as members of the Crawford county board .of education for the term commencing the third Saturday of January, 1924.

Defendants in their answer, after admitting the formal facts alleged, denied that the relators received the highest number of votes, and denied that the relators were elected as members of the said county board of education. The answer further alleged that the returns and tally sheets of the Polk township precinct of the said school district, transmitted to the said defendants, show that William E. Krauter received 97 votes in the said precinct, Jesse it. Brinkman received 92 votes in the said precinct, Otto F. Mollenoopf received 46 votes in the said precinct, and Milo E. Lust received 44 votes in the said precinct, and that the total vote received by William E. Krauter in the said county school district was 2,'243, that the total vote received by Jesse B. Brinkman in the said county school district was 2,240, that the total vote received by Milo E. Lust in the said county school district was 2,226, and that the total vote received by Otto F. ,Mollenoopf in the said county school district was 2,234.

Defendants further admitted that they refused to issue the certificates to the relators as demanded, and alleged that their reason for the said refusal was that the relators did not receive the highest number of votes and were not elected to the said office at the election held in the said school district on November 6, 1923.

Judgment in the Court of Appeals was given for *243the defendants. The ease comes to this court upon petition in error filed as matter of right.

*Messrs. Sears & Sears*and *Mr. Charles F. Schaber,*for plaintiffs in error.

*Mr. Clarence U. Ahl,*for defendants in error.

By the Court.

The controlling question in this case is whether parol evidence is admissible to explain the meaning of marks on the poll books in the form of an “X.”

The record shows in the exhibit upon the tally sheet after the name of William E. Krauter five “X” marks in the five columns under the figures “10,” “20,” “30,” “40,” “50,” and the same number of “X” marks in the same position after the name of Jesse R. Brinkman. The “10,” “20,” “30,” “40,” “50,” at the head of these particular columns, evidently signifies the number of votes tallied. Following the five “XV ’ after the name of Krauter are nine groups of five tallies each, and two single tallies, and after the five “XV’ following the name of Brinkman are eight groups of five single tallies each, and two single tallies. Under the total in figures following the name of Krauter are the figures “97,” and under the column headed “Total Votes for Each Person,” fully written out in words, are the words “ninety seven.” Under the total in figures following the name of Brinkman are the figures “92,” and under the column headed “Total Votes for Each Person,” fully written out in words, are the words “ninety two.”

*244Evidence was given in the Court of Appeals, over objection, by the clerk of the board of elections of Polk township, Crawford county, Ohio, at the election of November 6, 1923, that he made the marks in question when he was counting the votes in the precinct of Polk township, and that when the judges counted out ten votes he, the clerk, marked an “X” for 10 votes; that one of the judges called out “ten” whenever 10 ballots had been counted for a candidate, and following this announcement by the judge the clerk made a cross mark, an “X,” upon the tally sheet; that the single tallies represented single votes marked from the mixed tickets. The clerk testified that, counting the “X” marks as 10, Krauter and Brink-man were tallied as receiving 97 and 92 votes, respectively.

Plaintiff in error claims that this testimony was inadmissible, upon the ground that it contradicted the face of the tally sheet; but is this contention based upon a sound premise? Does not the face of the tally sheet in fact show, apart from any oral testimony, that Krauter and Brinkman were accorded exactly the same number of votes, namely, 97 and 92, as was shown in the testimony of the clerk? In other words, does not the tally sheet itself, without explanation, show that the “X” mark is counted as ten?

The use of Roman numerals, particularly the “•V” and the “X,” is extremely common in this country, and is taught in the schools. The placing of the letter “X” under the figures “10,” “20,” “30,” “40,” “50” in succession in the places set for counting up the tallies — the letter “X” being *245commonly used to correspond to “ten” — gives'rise to a reasonable inference of fact that the “X” is a mark for 10 ballots.

Passing over to the totals placed upon the tally sheets, we find that each of the five “X’s” in case of each of the candidates, Krauter and Brinkman, evidently is counted as 10, for otherwise the-total of 97 and 92, written both in figures and in script, is erroneous. If the “X” is counted as 10, the total is correct in both instances. What contradictory matter appears on the face of this tally sheet, if “X” is counted as representing 10 votes? If we count the “X” as 10, the tally carries nothing to explain; the parol evidence received was purely cumulative, and in no way contradicted the face of the tally sheet, and hence its admission was not erroneous.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur.

Wanamaker,-J., not participating.