Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1911-05-27

and ascertain the result OF 1t, compar-
ing the poll lists and correcting err
rors therein" It could hardly be con.
tended. that here the term poll lists
could mean anything but the list OF
voters in the poll books, where the
clerks of election have entered their
names. The registration lists are, Of
course, not prepared by the election
officials, and it was certainly not con-
templated that they should make cor
rections in them. But there are other
instances equally, significant. In sec
ton 1140 1t is provided: III the
ballots for any officer exceed
the number of voters in the poll lists,
such fact shall be certified with the
number of the excess. ETC." In section
1117 there is the following provision:
"Any voter who after receiving an Of
fetal ballot, decides not to vote, shall,
before retiring from. within the guard
rail- surrender to the election officers
the official ballot which has been given
him, and such fact shall be noted on
each Of the poll lists" and section
Ills, in reference to the manner in
which voter may be assisted In
marking his ballot, contains this pro-
vision: "The clerks Of election shall
enter upon the poll lists, after the
name of any elector who receives such
assistance in marking his, ballot, a
memorandum of the fact" The clerks
of election, as has been seen, are each
required to enter the names Of the
voters in the poll book kept by him.
Section 1116, Supra. They have moth
ing to do with the registry lists.
But, aside from the manner Of It's
use by the legislature and the courts,
the term poll list is of plain and GER
tain meaning. A poll is an election, a
voting literally counting Of heads,
A poll list is list of those who vote
and, as used in our statutes, the term
clearly means the list Of voters as
made by the clerks of election in the
poll books.
In view of this obvious meaning OF
the term, It's use by the legislature in
the same sense and as synonymous
with poll book. and the repeated de-
claratiOns of the supreme court that
it is to the poll books alone the court
must look to ascertain who voted at
the election. there is, in my judgment,
no support for the contention that the
term poll list in section 2448 of the
code includes the registry list, or tina.
it means anything other or different
than it does when used elsewhere in
the code, namely, the list of voters re-
corded by the clerks of election in the
poll books.
The law provides for two poll pooks
in each precinct, one of which is re-
quired to be deposited with the county
auditor and the other with the city
clerk It is contemplated that they
shall correspond, the law requiring, as
previously noted, that they shall be
compared and corrected by the judges
of election. In few instances in the
present case it is found that the
names appearing at the same voting
number on the two books are not
identical. There are not enough OF
these instances to affect the result,
and 1t is unnecessary to determine
which book controls All names iden-
teal with name on either poll book
are counted.
Contestants, in the second place, in
sist that names appearing to be signed
to the statement of consent by mark
should not be counted unless such sig
natures are witnessed. On the other
hand, proponents claim these sigma
lures are valid without their being wit
messed, or, If not, that they are suf-
flciently witnessed, as established by
the averments of the affidavit accom-
panying the statement, to the effect
that the affiant personally witnessed
the signing Of each name appearing
thereon.
The statement cannot, in my opin-
ion, be aided by the parol evidence Of
fered, and received subject to objec-
ton, on this branch of the case. It
must appear to be sufficient on it's
face.
There is, however, no statutory re-
quirement that where signature is by
mark the mark shall be witnessed 1t
may be conceded that, generally, sig
nature by mark Is good without its be-
Ing witnessed, and that any mark
which person makes as and for his
signature is good signature, no mat
ter what the character or form of the
mark may be. The question of the
of an unwitnessed signature
by mark on statement of this charac-
ter has, however, been directly deter
mined by the supreme court in the
case of Scott vs.. Naacke, Supra. 1t |
is there said, speaking Of such a |
statement of consent: Where the
signature is by mark we think it
should be Witnessed, and unless 50
witnessed should not be counted"
This holding is vigorously assailed
as being mere dictum, as not having
been we'll considered, and as being op-
posed to the weight of authority. The |
charge that 1t is dictum is not sus-
tanned NY an examination of the opin-
ion itself, and is clearly disproved !!
by a reference to the abstract on the |
appeal The very question was square
ly presented to the court by the rec
ord, the assignment of errors, and the !!
argument. The statements of con-
sent containing the rnwitnessed sigma !
lures by mark, apparently, bore affida- !.
Wits similar to those in the case at bar. |
Indeed, If they had not been accom-
panied by such an affidavit they would
have been clearly invalid under the
statute for that reason alone, no mat
ter how signed. Code, section 2452.
It is, therefore, plain the statements in
the affidavit were not considered a |
sufficient witnessing of signature by