Frantz v. Hansen

140 P.2d 631, 104 Utah 412, 1943 Utah LEXIS 77

• Court: Utah Supreme Court
• Decided: August 9, 1943
• Docket: No. 6500.
• Status: Published

Opinions

MOFFAT, Justice.

Appeal from a decree of the District Court for Summit County adjudging the parties herein named to have received a tie vote at the Park City election, November 4, 1941, and holding as void and of no effect the certificate of election under which appellant Hansen had assumed the duties of the office of four-year councilman of Park City, Utah, and ordering the parties to appear before the Mayor and City Recorder on a date to be fixed, “then and there to decide by lot which of the parties hereto shall be elected to the office of four year councilman of Park City.”

Appellant Hansen was the Republican candidate and respondent Frantz the Democratic candidate named on the official ballot for the office of four-year councilman of Park City, Utah. There were no other names on the ballot for this office. It is alleged by respondent contestant that after the regular city election in Park City on November 4, 1941, the Board of Canvassers “erroneously, illegally and exceeding its jurisdiction, certified that said Clements P. Hansen had a plurality of one (1) vote over said Albert Frantz,” that the City Recorder thereupon issued to Hansen a certificate of election to said office, and Hansen took oath and assumed the duties thereof. Frantz then alleged errors by the Board of Canvassers and judges of election in tallying the ballots cast, and prayed for a hearing to determine the contest. Issue was joined and a hearing had. The following stipulation was entered into:

“That there are six (6) election districts within Park City, Summit County, Utah, and that an inspection and recount of all the ballots cast and used in all of the said districts in said city is necessary and desirable for the proper determination of the election herein contested, and that the court may order all of the ballots cast and used in the city election held at Park City, Summit County, Utah, on the 4th day of November, 1941, inspected and recounted by the court and upon such inspection and recount the court to determine which of the parties is the duly elected Pour-year Councilman of Park City.”

Upon the hearing, the court found that 579 unquestioned votes were cast for appellant Hansen and 575 unquestioned ballots cast for respondent Frantz, with fourteen ballots questioned by either candidate. These questioned ballots were marked and received in evidence as Exhibits A to N, inclusive. The trial court found that four of these ballots had been so marked as to render them invalid as votes for either candidate (Exs. A, C, J, and K), counted seven of them as valid votes cast for Frantz (Exs. B, D, E, F, G, M and N), and three as valid votes cast for Hansen (Exs. H, I and L), resulting in a final count and finding of 582 votes cast for each candidate and the judgment cancelling the certificate of election theretofore issued to Hansen and ordering the candidates to appear before the Mayor and City Recorder to draw lots, pursuant to the provisions of Sec. 25-11-4, U. C. A. 1943, to determine which of the two should be certified as elected to the office in question. Hansen appeals from this judgment.

The question submitted must be determined by our examination of and judgment on the fourteen questioned ballots. After the decision by this court in Evans v. Reiser, 78 Utah 253, 2 P. 2d 615, handed down in August, 1931, the following language was stricken from what is now Sec. 25-6-21, U. C. A. 1943,

“any ballot marked by the voter in any other manner than as authorized in this chapter shall be rejected,”

and the law was amended so that more liberal interpretation may be given a ballot in order to preserve the full intent of the voter as evidenced thereon. The pertinent provisions of the law governing the question in hand are here quoted:

Sec. 25-6-19, U. C. A. 1943. Manner of Marking Ballot.

“* * * The voting mark shall be a cross in the circle or square and the cross required to be used in this chapter shall consist of two straight lines as nearly equal in length, and crossing each other as near the center of each line as practicable.”

Sec. 25-6-20.

“Any voter desiring to vote for all the candidates upon any ticket may mark in the circle above that ticket, or in the squares opposite the names of all candidates thereon, or may make both such markings. If the voter does not desire to vote for a candidate on a ticket under the circle in which he has marked, he may draw a line through the name of such candidate, and the cross in the circle shall count as a vote for all the other candidates on the ticket. To vote for candidates on two or more tickets he may mark in the squares opposite the names of such candidates without marking in any circle, or he may indicate his choice by marking in the circle above one ticket, drawing a line through the names of such candidates on that ticket for whom he does not desire to vote and marking in the squares opposite the names of the candidates of his choice upon other tickets. * * * The unnecessary marking of a cross in a square on the ticket below the marked circle shall not affect the validity of the vote. * * *”

Sec. 26-6-21.

“Ballots, How Counted — Defects Disregarded. Ballots thus marked shall be counted for the candidates designated by the marks in the squares, and for the candidates upon the ticket beneath a marked circle excluding the candidates through whose names the voter may have drawn a line. When a circle is marked and no lines are drawn through the name of any candidate thereunder the ballot shall be counted for all the names upon the ticket beneath such circle. When more than one circle is marked, the ballot shall be rejected. When only one officer for any office is to be elected, if the voter marks in squares opposite the names of more than one candidate therefor, or if having marked the circle on one ticket, he shall mark the name of a candidate on another ticket without drawing a line through the name of the corresponding candidate upon the ticket beneath the marked circle, such vote shall not be counted for such office. * * * No ballot marked by the voter shall be rejected because of marks on the ballot other than •prescribed in this section, except when said marks on said ballot show an attempt on the part of one or more persons to so mark their ballots that it can be determined that the intent of said person or persons is to show concerted action on the part of a group in designating their ballots so that the action of said group or voter can be determined by any person. The intent of the voter should be given full consideration and mechanical and technical defects in voting and failure on the part of the voter to follow strictly the rules for balloting as laid down in sections 25-6-19 and 25-6-20 of the Revised Statutes of Utah, 1933, shall not invalidate a ballot. * * * ” (Italics added.)

Examining the questioned ballots in the light of the amended statutes, we conclude that Exs. A, B, C, D, E, F, G, K, M and N must be counted as valid votes for contestant Frantz; Exs. H, I and L must be counted for contestee Hansen; and Ex. J must be rejected as being neither a vote for Frantz nor for Hansen. This results in a final recount of 585 votes for Frantz and 582 votes for Hansen.

The questioned votes which we conclude must be counted for Frantz are here described: Ex. A is marked with crosses in the squares following the names of all candidates on the Democratic ticket. The circle is unmarked. After the name of Wm. Addy, candidate for two-year councilman, the voter wrote in the words, “this one.” This ballot was rejected by the lower court. The statute provides,

“No ballot marked by the voter shall be rejected because of marks on the ballot other than prescribed in this section, except when said marks on said ballot show an attempt on the part of one or more persons to so mark their ballots that it can be determined that the intent of said person or persons is to show concerted action on the part of a group in designating their ballots so that the action of said group or voter can be determined by any person.”

We cannot say that the words, “this one,” are any more than an expression of emphasis by the voter as to Wm. Addy. The ballot clearly shows a definite vote for Frantz.

Ex. B bears a cross in the circle under the Democratic party emblem. The bottom of the ballot was mutilated at the time it was removed by the judges from an absentee voter’s envelope. A strip across the bottom containing the name of the last candidate on each ticket is missing. This ballot, however, was mutilated at the time of its removal from the envelope and observed first-hand by the judges, so that there is no question or room for speculation as to how or why it became mutilated. The ballot shows a clear intention to vote for Frantz.

Ex. C was rejected by the trial court. It bears a cross in the circle under the Democratic emblem, and no other crosses. However, it shows a faint straight line drawn through the names of the three last candidates on the Republican ticket, with half an arrow head at the bottom name. It may be an inverted, long check mark. At least, we fail to see any significance in the mark and do not regard it as fatal to the ballot. This exhibit also shows clearly a vote for Frantz.

Exs. D, E and F bear a cross in the circle on the Democratic ticket and each bears a perpendicular pen line drawn through the names of the Republican candidates. We view these lines as negative in character and conveying no other significance, which is also the view taken by the trial court.

Ex. G bears check marks in five of the seven squares following the names of the Democratic candidates. A check mark was placed in the square after the name of Vern L. Peterson, candidate for two-year councilman, but obliterated. The square after the name of the candidate for treasurer is left blank. There is no mark in the circle at the top of the ticket. While the voter did not use the cross mark described in the statute, the check marks are a common method of checking off or indicating the intention of a person using them, and cannot be said to be distinctive. The check marks are consistent and to make more clear his intention, the voter repeated the marks in the blank third column of the ballot opposite the names of the candidates on the Democratic ticket for whom he cast his vote. This must clearly be counted as a vote for Frantz.

Ex. K was rejected by the trial court. It bears a cross in pen and ink in the upper right hand corner of the enclosed space allotted to the Democratic ticket and just to the right of the head of the party emblem. The ballot bears no other markings. While the cross is some two inches from the circle, we view it as a well intended vote for the candidates named under the party emblem near to which the cross was placed. This is clearly a straight vote for the Democratic ticket, and must be so counted as a vote for Frantz.

Ex. M is marked with a cross in the circle under the Democratic emblem. Crosses are also placed after the names of three Democratic candidates, not including Frantz, and the other squares left blank. On the Republican ticket, a cross was placed in the square after the name of the candidate for Mayor, and then obliterated, and a cross placed in the square after the name of the candidate for two-year councilman but no line drawn through the name of the opposing candidate on the Democratic ticket. Under the law as it stands, this ballot must be counted as a vote for Frantz, the unnecessary crosses in the squares having no significance.

There has been some difficulty in the discussion and consideration of Ex. N. The ballot bears a cross in the Democratic circle and no other mark thereunder. However, on the Republican side, a cross was placed in the square after the name of appellant Hansen, but a pen line drawn through his name. A faint line is drawn through the name of the candidate for two-year councilman, and a cross after the name of the candidate for recorder but no line drawn through the name of the opposing Democratic candidate. By the same reasoning applying to Ex. M, this ballot must also be counted as a vote for Frantz. *

Exs. H, I and L must be counted as votes for appellant Hansen, and were so found by the trial court. Ex. H bears no cross in either circle, but the vote for Hansen is plainly indicated by a cross in the square following his name. On Ex. I, a cross was placed in the square after Frantz’s name* but obliterated, and a line drawn through his name, with a cross in the square after Hansen’s name. No cross appears in either circle on this ballot. Ex. L bears a cross in the Democratic circle. Frantz’s name is stricken out by perpendicular pen marks and a cross placed in the square opposite Hansen’s name.

Ex. J must be rejected as being neither a vote for Hansen nor for Frantz, as so found by the trial court. A cross was placed in the Democratic circle, a definite line stricken through the name of Frantz and the square following but no mark made in the square following Hansen’s name; thus, the ballot cannot be counted as a vote for either candidate.

That part of the decree of the lower court ordering the cancellation of the election certificate issued to Hansen referred to is affirmed; and the cause is otherwise reversed and remanded with instructions to recast the findings and decree in the particulars indicated by our views expressed herein; each party to bear his own costs.

WADE, J., concurs.