The Indiana State sentinel. [volume] (Indianapolis) 1868-1895, 1892-03-23

decision relative to questions that arose in the
operation of the election law in Nanderburgh
county. At the November election in 1890
Parvin and Stoekieth were candidates for
county auditor, and by the canvessing board
Parvin was declared elected, the vote being
4,745 for him and 4, 735 for Stockfeth. The
latter, however, claimed that twenty-seven
votes for Parvin aud siKty-one for
himself were illegally rejected. Had
this not been done Stockheth
would have been elected, the vote with the re-
jee.ed ballots being 4772 for Parvin and 4796
for his opponent. The rejection of these votes
was on the ground that some Of the ballots
were defective as to stamping. and that ell in
two precincts had not been Endorsed by the
polling clerks according to law. their initials
appearing in the lower right hand corner in
stead of the left. Other votes were questioned
by the canvassng board because they had been
placed in the wrong box.
1t was these questions the supreme court
considered the case having come from the
Gibson circuit court on appeal of Parvin. the
trial occurring in that county on a change of
venue. By the judgment Of the lower court
Parvin was deprived of the Office he sought
and his appeal was that the court erred in ad-
nllttlnE Us 6NiutEcd CEtkAlH UdllOto OucICu ~
the appellee. 1t was the squares of these
ballots that had not been touched by the
stamp. Judge ofey wrote the opinion Of the
supreme court and in it all the other judges
concurre d. He quoted sec. IS of the election
law, prescribing the manner OF voting. 1t was
contended by the appellant Parvin that tine
provision requiring the voter 10 indicate his
choice of candidates by stamping the square
opposite the name OF the candidate was man
datory. The appellee maintained that the
provision was directory only and that
the voter may indicate his choice without
touching the square with the stamp.
Judge Cohey referred to the instructions as
to the manner OF voting under the law Of 1889,
prepared by six practicing attorneys collected
by the state central committees of the two
leading great parties and held that the con-
clusion reached by these attorneys Gs to the
meaning of the law as 10 the manner
of voting was correct This was
the squares on the ballots must be
touched with the stamp He held that
| If the provision was directory only, there
could be no fixed rule for officers of election to
follow in counting ballots. II ballots are to be
| counted where the squares are not touched there
is nothing to show at what distance from the
square the stamp shall be placed before the
ballots can be rejected. One board of election
| officers could reach one conclusion and another
could adopt a rule directly opposite.
The amendment OF March o, 1891, to
sec. 10 was considered. 1t pro-
vides that stamp not touching
| q square on a ballot shall be disting gushing
mark aud that the ballot shall not De counted.
| This. Judge Coffey said, makes certain that
which was intended by the legislature when it
| passed the original section. Each ballot, he
| continued, constitutes a separate and distinct
written instrument, and, like all other written
| instruments its construction is for the courts.
| OF the l54 ballots appearing on the record be-
| fore us not to exceSd nineteen could by any
possibility be counted for either the appellant
| or Slockfeth. In order that On elector may
have his ballot counted at all he must touch
some one of the squares with the stamp. He
| can indicate his choice in no other manner, for
| this is the only mode presented by law. lie
| cannot stamp his ballot elsewhere and leave
the election board TO guess at his intention
Ii was therefore held that the lower court
erred in admitting as evidence In support OF
| the appelee's claim ballots not so stamped. 1t
| could not be accepted through such testimony
| that the electors intended to vote for either OF
] the candidates for county auditor.
As 10 the initials OF the polling clerks being
In the lower right hand corner of the ballots in
stead of the left the courts showed that this
! Endorsement was prescribed by sec. "a. But
the mistake was not one OF fraud or Intentional
| violation oflaw The appellant, Parvin. though
contended that they should not be counted
| and that the provision as to the place where
| the initials should appear was mandatory.
| 1t was the poinOn OF the court
| that a study of tie statute left no doubt
| that il was the purpose of the law TO secure q
fair expression Of the will OF the people By
| secret ballot uninfuenced by bribery, corrup-
| ton or fraud. A Acknowledgement, therefore.
| of whole precincts by reason of honest
mistake on the part of election officers would
| be inconsistent with that purpose. The imme-
| date purpose of sec. "a is to prevent the
| counting OF fraudulent votes by requiring
clerks TO indorse their initials on official
| ballots so they can be identified. They can
| therefore be Endorsed in one place well as
| another on back Of the ballot. So much Ofthe
provision that requires the Endorsement to be
| made with the initials of the polling clerks was
| held 70 be mandatory. but the place where the
| initials shall appear 10 directory only. The
| purpose of the law is accomplished when the
| endorsements is made. The lower court there
fore did not err in refusing TO reject the ballots
| cast in the two precincts in question.
The ballots properly stamped and Endorsed
| but placed in the wrong box by .he election
| officers the supreme court hcl0 should be
| counted. II was next TO impossible under the
| safeguards of the election law that the ballots
| could have been deposited by persons other
/ than election officers. To have placed them in
the box when not received from
| qualified voters would have been
| a crime and the presumption of law is
| always against crime. IL was a mistake OF the
| election officers for which the voters were not
responsible. Numerous authorities were cited
| to support the position OF the court and judg'
| ment was reversed with directions TO tho lower
/ court to grant u new triel.