laid down which can be said to have a preponderating weight of authority in its support. We think evidence of such facts as may be called the circumstances surrounding the election-such as who were the candidates brought forward by the nominating conventions; whether other persons of the same names resided in the district from which the officer was to be chosen, and if so whether they were eligible or had been named for the office; if a ballot was printed imperfectly, how it came to be so printed, and the like is admissible for the purpose of showing that an imperfect ballot was meant for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself; or unless the ballot is so defective that it fails to

show any intention whatever: in which cases it is not [* 612] admissible. And we also think that in any case to allow a voter to testify by way of explanation of a ballot otherwise fatally defective, that he voted the particular ballot, and intended it for a particular candidate, is exceedingly dangerous, invites corruption and fraud, and ought not to be suffered. Nothing is more easy than for reckless parties thus to testify to their intentions, without the possibility of their testimony being disproved if untrue; and if one falsely swears to having deposited a particular ballot, unless the party really depositing it sees fit to disclose his knowledge, the evidence must pass unchallenged, and the temptation to subornation of perjury, when public offices are at stake, and when it may be committed with impunity, is too great to allow such evidence to be sanctioned. While the law should seek to give effect to the intention of the voter, whenever it can be fairly ascertained, yet this intention must be that which is expressed in due form of law, not that which remains hidden in the elector's breast; and where the ballot, in connection with such facts surrounding the election as would be provable if it were a case of contract, does not enable the proper officers to apply it to one of the candidates, policy, coinciding in this particular with the general rule of law as applicable to other transactions, requires that the ballot shall not be counted for such candidate.1

1 This is substantially the New York rule as settled by the later decisions, if we may accept the opinion of Denio, Ch. J., in People v. Pease, 27 N. Y. 84, as taking the correct view

of those decisions. See People v. Cicotte, 16 Mich. 283, for a discussion of this point. Also State v. Griffey, 5 Neb. 161.

The ballot should also sufficiently show on its face for what office the person named upon it is designated: but here again technical accuracy is not essential, and the office is sufficiently named if it be so designated that no reasonable doubt can exist as to what is meant. A great constitutional privilege — the highest under the government is not to be taken away on a mere technicality, but the most liberal intendment should be made in support of the elector's action wherever the application of the common-sense rules which are applied in other cases will enable us to understand and render it effectual.1

* Where more than one office is to be filled at an elec- [* 613] tion, the law may either require all the persons voted for, for the several offices, to be so voted for by each elector on the same ballot, or it may provide a different receptacle for the ballots for some one office or set of offices from that which is to receive the others. In such a case each elector will place upon the ballot to be deposited in each the names of such persons as he desires to vote for, for the different offices to be filled at the election for which that box is provided. If, for instance, State and township

1 In People v. Matteson, 17 Ill. 167, it was held that where "police magistrates" were to be chosen, votes cast for "police justices" should be counted, as they sufficiently showed upon their face the intention of the voters. So where the question was submitted to the people, whether a part of one county should be annexed to another, and the act of submission provided that the electors might express their choice by voting "for detaching Ror "against detaching R—,” it was held that votes cast for "R- attached," and for "R-detached," and "for division," and " against division," were properly counted by the canvassers, as the intention of the voters was clearly ascertainable from the ballots themselves with the aid of the extrinsic facts of a public nature connected with the election. State v. Elwood, 12 Wis. 551. So where trustees of common schools were to be voted for, it was held that votes for trustees of

public schools should be counted; there being no trustees to be voted for at that election except trustees of common schools. People v. McManus, 34 Barb. 620. In Phelps v. Goldthwaite, 16 Wis. 146, where a city and also a county superintendent of schools were to be chosen at the same election, and ballots were cast for "superintendent of schools," without further designation, parol evidence of surrounding circumstances was admitted to enable the proper application to be made of the ballots to the respective candidates. In Peck v. Weddell, 17 Ohio, N. s. 271, an act providing for an election on the question of the removal of a county seat to the "town" of Bowling Green, was held not invalid by reason of Bowling Green being in law not a "town," but an incorporated village. In voting for a county seat it was held proper to count votes cast for a town by its popular, which differed from its legal name. State v. Cavers, 22 Iowa, 343.

officers are to be chosen at the same election, and the ballots are to be kept separate, the elector must have different ballots for each; and if he should designate persons for a township office on the State ballot, such ballot would, to that extent, be void, though the improper addition would not defeat the ballot altogether, but would be treated as surplusage, and the ballot be held good as a vote for the State officers designated upon it. But an accidental error in depositing the ballot should not defeat it. If an elector should deliver the State and township ballots to the inspector of election, who by mistake should deposit them in the wrong boxes respectively, this mistake is capable of being corrected without confusion when the boxes are opened, and should not prevent the ballots being counted as intended. And it would seem that, in any case, the honest mistake, either of the officer or the elector, should not defeat the intention of the latter, where it was not left in doubt by his action.2

*

The elector is not under obligation to vote for every office to be filled at that election; nor where several persons are to be chosen to the same office is he required to vote for as many as [* 614] are to be elected. He may vote for one or any greater number, not to exceed the whole number to be chosen. In most of the States a plurality of the votes cast determines the election. In others, as to some elections, a majority; but in determining upon a majority or plurality, the blank votes, if any, are not to be counted; and a candidate may therefore be chosen without receiving a plurality or majority of voices of those who actually participated in the election. Where, however, two offices of the same name were to be filled at the same election, but the notice of election specified one only, the political parties each nominated one candidate, and, assuming that but one was to be chosen, no elector voted for more than one, it was held that the one having a majority was alone chosen; the opposing candidate could not claim to be also elected, as having received the second highest

1 See People v. Cook, 14 Barb. that he has voted by mistake in the 259, and 8 N. Y. 67. wrong precinct, to withdraw from the ballot box and destroy a ballot which he professes to identify as the one cast by him. Harbaugh v. Cicotte, 33 Mich. 241.

2 People v. Bates, 11 Mich. 362. See Lanier v. Gallatas, 13 La. Ann. 175; McKinney v. O'Connor, 26 Tex. 5. But inspectors of election have no authority, on the assertion of a voter

number of votes, but as to the other office there had been a failure to hold an election.1

The Freedom of Elections.

To keep every election free of all the influences and surroundings which might bear improperly upon it, or might impel the electors to cast their suffrages otherwise than as their judgments would dictate, has always been a prominent object in American legislation. We have referred to fundamental principles which protect the secrecy of the ballot, but in addition to these there are express constitutional and statutory provisions looking to the accomplishment of the same general purpose. It is provided by the constitutions of several of the States that bribery of an elector shall constitute a disqualification of the right to vote or to hold office; the treating of an elector, with a view to influence his vote, is in some States made an indictable offence ;3 courts are not allowed to be held, for the two reasons, that the electors ought to be left free to devote their attention to the exercise of

*

this high trust, and that suits if allowed on that day [* 615] might be used as a means of intimidation; legal process

1 People v. Kent County Canvassers, 11 Mich. 111.

2 See the Constitutions of Maryland, Missouri, New Jersey, West Virginia, Oregon, California, Kansas, Texas, Arkansas, Rhode Island, Alabama, Florida, New York, Massachusetts, New Hampshire, Vermont, Nevada, Tennessee, Connecticut, Louisiana, Mississippi, Ohio, Wisconsin. And it has been held on general principles that if an elector is induced to vote in a particular way by the payment or promise of any money or other valuable consideration for such vote, his vote should be rejected as illegal. State v. Olin, 23 Wis. 327. The power to reject for such a reason, however, is not in the inspectors, but in the court in which the right to try the title to the office is vested. State v. Purdy, 36 Wis. 213; s. c. 17 Am. Rep. 485. In this case it was held to be a sufficient reason

for the court to reject votes, that they were obtained by means of the candidate's promise to perform the duties of the office for less than the official salary.

8 State v. Rutledge, 8 Humph 32. And see the provision in the Constitution of Vermont on this subject. A resort to this species of influence would generally, at the present time, prejudice the candidate's interests instead of advancing them, but such has not always been the case. Mr. Madison, after performing valuable service for the State in its legislature, was defeated when offering himself for re-election, in the very crisis of the Revolution, by the treating of his opponent. See his Life by Rives, Vol. I. p. 179.

4 But it was held in New York that the statute of that State forbidding the holding of courts on election days did not apply to the local elections.

in some States, and for the same reasons, is not permitted to be served on that day; intimidation of voters by threats or otherwise is made punishable; 1 and generally all such precautions as the people in framing their organic law, or the legislature afterwards, have thought might be made available for the purpose, have been provided with a view to secure the most completely free and unbiassed expression of opinion that shall be possible.

Betting upon elections is illegal at the common law, on grounds of public policy; 2 and all contracts entered into with a view improperly to influence an election would be void for the same reason. And with a just sense of the danger of military inter