The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-01-11
size OF the mark evidently had some
what to do with the application of the
theory, because this ballot
4J.W.E:Huqhesm

was found to be without fault.
"A correct intention on the part of the
voter was occasionally so clearly dis
cerned from the face of the ballot that
a cross mark specifically required by the
statute was not found to be necessary
to express 1t, as is evidenced by this
ballot. Albert Parker CX) and this j.
w. F. Hughes 90 which were counted.
However, it is not permitted that this
departure shall go too far for this bal
lot j. w. F. Hughes (O) was rejected.
Again perhaps the size of the mark had
something to do with the ability to de-
termine the intention.
Had the court in this case after hav-
ing admitted to the count all of the bal
lots double marked for Mr.. Parker with
two good crosses, and then applied
what seems to us to be the rational
rule in the counting of the balance, the
result would have been different
THE original opinion contains photo
graph copies of these illustration
We think. however, that these double
tinguished by such marking. so as to
require their rejection. but that they
also should have been rejected because
they are expressly excluded from the
count by the language of the statute.
" If the voter marks more names than
there are persons to be elected to an
Office his ballot may not be counted.
This language does not mean the same
as if it read If the voter marks the
names of more persons than are to be
elected to an office 1t reads More
names Print the name of the sam e
candidate as many times as you may
choose on the ticket, that is advantage
enough, you may not mark it but once.
In not a few instances in this count did
Mr.. Parker gain a vote because good
cross mark in one square helped out a
poor one in the other.
"On the question of the SO ballots re-
turned from the second precinct of the
First ward under cover marked This
package contains defective or objected
to ballots not voted we are of the
opinion that none of the ballots should
have been counted, it not appearing
which of them had been voted. And we
do not now know but that at least some
portion of the ascertained majority for
Mr.. Parker is made up of ballots never
put into the ballot box 1t may be true
that if the entire SO ballots be thrown
out that % legal votes will be ignored,
but it is also true that if all are con-
office by votes never put into the ballot
box and which represent no voter. In
the case of State of Kansas. eX rel. v.
Stevens, % Kan. 456, where substan-
this court on page ASS used this lang
uage: While legal and honest votes
were cast, yet no court is under obliga-
ton to sift the grain of truth from the
mass of falsehood-
Finally we deem it our duty to call
attention to the fact that but one sin
gle legal proposition is settled in this
case. All of the justices, except the
holding that ballots which are obnoxi-
Gus to the penalties denounced upon
those who mark their ballots as indica-
ted in section q, should not be counted.
Further, that the apparent abandoning
of the rule for determining the validity
of ballot as laid down by this court
in Blea kley VS.. Taylor, supra, is more
apparent than real The two justices
last named repudiating the proposition
that a ballot can be rejected at all on
account of distinguishing mark. While
Justices Smith and Ellis only stand for
the rule that only such marks are dis
tinguishing ones requiring the rejection
of the ballot as the judge who is count
ing it shall conclude from all of the
circumstances indicate that the voter
intended the ballot to be thus distin-
guished.
Again we say that in our cNiGion
the statute requires the rejection of all
ballots on which the voter has purpose
ly made such marks so that it can be
distinguished and as the application of
this rule would result in a judgment
for the defendant in this case, we dis
sent from the judgment rendered in IA
vor of the plaintiff"
Johnston and Greene, J., concur in
dissenting opinion