Daily Kennebec journal., 1895-03-09
LEGALLY ELECTED.
Decision in the WaterviIIe
Ward One Ballot Case.
Judge Whitehouse Decides "Defec-
tive" Ballots Honestly Cast.
Both Parties Accept Decision and Certificates
Will Be Given Republicans.

lHC WdicTNllle contested clecblOn cases
came up, Friday, before Judge Whitehouse
in the supreme court. The first case was
the petition of M. f. Bartlett, who claims
that he was elected member of the board
of education from Ward /, asking for a
mandamus to compel Vim. L. Bushey, the
ward clerk, to issue to him a certificate of
election. +. f. Webb appeared for the
petitioner and +. A. Waldron for Mr..
Bushcy. The petition was also served on
J. J. Reed, the opposing candidate, who
appeared by counsel, S. S. Brown and G.
F. johnson. The petition sets out that
Is ballots were illegally rejected as defec-
tive, and that they should have been re-
ceivcd and declared for the petitioner.
The petitions of Frank Williams and
Albert Wade, candidates for councilmen
in the same ward, for the same purpose,
were also considered, the opposing candi-
dates being Geo. v. Fitzgerald and Rich
ard Dunn.
The rs ballots thrown out as defective
were produced by City Clerk Foster for
the inspection of the court. Eight of the
ballots were conceded by both sides to be
defective. Six were disputed by tho de-
PENDANTS, on the ground that the cross at
the head of the ticket was in the dark
square instead of the white, and four be-
cause of alleged distinguishing marks
Counsel made elaborate arguments in
support of their several contentious.
In rendering his decision, Judge White
house said:
"The distinguishing feature of the act
of 1891 known as the Australian Ballot
Law, was it's careful provision for secret
ballot. The leading purpose of it was to
give the elector an opportunity to cast his
vote in such manner that no other per
son would know for what candidate he
voted, and thus to protect him against all
improper influences and enable him to
enjoy absolute freedom from restraints
and entire independence in the expression
of his choice.
"In the decision of the Bangor case,
(Curran VS.. Clayton) the court endeav-
ored to give such a construction to that
enactment as would cffectuate and not
destroy the purpose of it; and 1t was ac-
cordingly held that distinguishing marks
serving to identify a ballot, might be
fatal objection it.
but the amendment of 1888, authorlZ-
ing the voter to erase any name or names
which are printed on the group or party
ticket, without specifying the method by
which the erasurc shall be elected
renders it entirely feasible for parties to
agree upon the use of small crosses Tor
that purpose which could at the same
time be available for Distinguishing
marks. The so-callcd Australian ballot
in this State can no longer be secret
ballot, whenever Identification is desired
and the distinguishing mark agreed
upon.
II therefore hold that under the law OF
1898. cross marks at the right or leu Oh
the names of the several candidates on
ballot do not yitiate ballot, which Is
otherwise properly marked by cross In
square above the party name. ouch
marks are superiluous and harmless
at appears however, that On the
ballots furnished in this instance there
was a white square, in a central position,
above the name of the political party,
with shaded square of exactly the same
size on each side of it, but also above the
name of the political party On some
of the ballots now before us the
voter has placed his cross on the
shaded square instead of the white square.
The respondents clam that this is not
comnlinncc with the statute and that the
ballots thus marked should not be
counted Tho rclators on the other hand
contend that n cross mark in the shaded
square above the party name, not ohIy uis-
closes the clear intention Of the voter, but
also complics with the literal require
mcnts of the law.
"Tbe statute simply requires the group
of candidates and party name To pc uh
der square 1t does not designate tho
nrccise location of the square, or state
whether it shall be directly over the center
of the party name o. otherwise; nor ooes
If specify whether the square Shaii pe
shaded or remain white. While the White
square in the center was douotiesS IL"
tended as the appropriate margin or place
for the cross mark, l am OF the opihioi
that a cross mark in the shadeu squa,c'
clearly indicating the Intention Oh tne
voter. is not such departure from tne iio
eral requirements of the statute that III
can he held to disfranehiSc the voter
Such ballots should be counted.
Both parties signiGed their willing
ness to acquiesce in the decision OF the
eoprt. and certificates are to be lssuco
without the formality Of issuing writs OF
mandamus. Accordingly certihcates Oh
election will be issued TO Bartlett as
member of the board of education ana
Williams and Fitzgerald as councilmen.
This will make the council tie, but the
Democrats, having a majority OF one IN
the hoard of aldermen, claim majority
Of one on joint ballet.
But, the Republicans claim that the
mavor. under their charter, IS memper
ot the city council. and there wouid sun
10 ; tie and consequently the old board
of CITY officers would hold over until
others are elected.