The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1892-11-22

the room of the board Of commissioners
yesterday TO watch the commencement
OF the rerounts. ItreQuired nearly half
the day to get ready to begin. Prose-
cutting Attorney Howard presented his
answer to tho questions put to him on
Friday by the board. This was volu.
minous document, reading as follows:
Tohe Board of Caneasays OF Ohio County.
GENTLEMEN: - In compliance with
your request l present my opinion on
the several questions submitted to me.
It must be understood that while you
may call upon me to advise, you must
eventually decide all OF these questions
for yoursel YES, only considering my
opinion among other matters, and not
regarding it az binding upon you.
The questions submitted demanded
more thorough examination Of the
authorities than l have had time to
give, but give you the result OF such
investigation OF the law as have made.
NAMES on BALLOTS.
The first question is, "shall ballots be
counted on which the voter has written
his name"
Section 70, chapter SO, Acts of 1901,
provides that "No voter shall place any
mark upon his ballot nor suffer or per-
nit any other person to do so by which
it may be afterward identified as the
ballot voted by him" The penalty for
violating this provision is imprison-
ment in the penitentiary for one or two
years, but the statute does not say such
ballot shall not be counted, while it
does provide in express terms that other
ballots shall not be counted. See Sec.
&C, Oh. SO. Acts '9l.
have not had time TO make thor
ough examination of the authorities on
this question, but looked far enough to
find great difficulty in determining the
weight OF authority. The statute being
intended to preserve the secrecy of the
ballot and to prevent fraud, intimida-
ton and bribery, is, l think, mandatory,
but in the absence of an express proVis.
ion against counting such ballot, |
would advise the board 10 countit.
The second question Is: "Shall ballots
be counted that have numbers or other
distinguishing marks on the outside,
put there by the commissioners OF cleo
ton or poll clerks?"
"The law is made to protect the voter,
and not to disfranchise him." as was
said in the case of Wigginton VS.. Pache-
CO, 8 Cong. FL. cases, /, where the cleo
ton judges had written some memo
randa on six Of the ballots. have no
hesitation in advising the board to
count such ballots, providing they are
legal ballots in other respects.
coLoRED OR SAMPLE BALLOTS.
AS to the third question, "shall col.
ored or sample ballots DO counted?'
Section "a, chapter SO, Acts Of '9l,
provides that "all ballots prepared un-
der the provisions of this chapter shall
be printed on white paper OF uniform
size, of the same quantity, and sufi-
GENTLY thick that the printing cannot
be distinguished from the back" etc.
In Kirk vs.. Rhoades, 40 Cal, 1893, it
was held that those things over which
the individual voter had no control,
such as the exact size OF the ticket, the
precise kind OF paper, and the peculiar
kind OF type or leads used in printing,
the statute should be considered as di.
rectory, and that a ballot cast in good
faith should not be rejected for lack OF
exact compliance with the provision OF
the statute in such respect.
The same rule was adhered to in Hi
nois, where the statute required "plain
white paper" but ballots on paper
slightly tinged with blue, with ruled
lines, cast in good faith, were not re-
jected. People vs.. Kilduff, 10 Ill, 492. ]
In Ohio, where the statute required
tickets TO be not more than two and a
half inches wide, tickets two and seven
eights inches wide were counted, in the
case OF Campbell vs.. Morey, contested
in the XLVIlI Congress.
In an Indiana case, the supreme court
Of Indiana held that when ballot
coniormed to the letter of the law, the
ballot is not to be rejected because the
quality or grade Of the paper upon
which it is printed differed from that OF
others which also come within the
letter of the statute, even though tile
difference be so perceptible as to par.
tally destroy the secrecy Of tho ballot"
Estate Vs. Wa-son so Ind, 26l.
There are number Of cases holding
the reverse OF the cases above cited, but
1t seems to me that the provision Of
our statute requiring white paper is
merely directory. There is no provi-
sion in our statute against counting
such ballots, and the weight OF author
ity seems to be in favor Of counting
them. a man who has cast his ballot
in good faith should not be disfran-
chised on account OF mistake OF the
election officials, and therefore adj
wise the board TO count any yellow tick
ct that is found to be in compliance
with the law in all other respects.
POLL CLERKS NAMES.
Your fourth question is, shall bal
lots on which the name of only one poll
clerk is endorsed DO counted"
Section &C, chapter 80, acts OF '9l,
provides that: "Any ballot which is
not endorsed with the names of the poll
clerks, as provided in this chapter.
shall be void, aud shall not be counted"
Section SO provides that each poll
clerk aha write hisname on the ballot.
1t might seem that the same reason.
Ing applied to the irregularities above
considered would justify tho counting
oil ballot on which'one poll clerk has,
perhaps inadvertently, neglected to
write his name, but here is an express
provision OF the statute prohibiting tine
counting OF any ballot on which the
names OF both clerks are not endorsed.
Theretore advise the rejection Of any