and, by accepting such appointment, he ac- paid appellant's brother for services rencepts the responsibilities of his office, which dered prior to appellant's appointment as reinvolves the exercise of his best business ex- ceiver and allowed by him, may be considered perience and influence for the benefit of the in connection with the other claims for wacompany in the same manner as if he were ges presented to the auditor. The act of May the sole owner of the business. For these 12, 1891 (P. L. 54, § 1; 4 Purd. 5039), proservices the law recognizes the justice of vides that money due for labor and services compensation measured by the circumstances for an amount not in excess of $200, and for of the case. Beyond such compensation, the a period not exceeding six months "precedreceiver may not profit by his position to the ing the sale or transfer of the real or perdetriment of the creditors or owners of the sonal property" of any person or company business. The very fact of his ability to "by execution or otherwise, on account of control trade or his familiarity with the the death or insolvency of such employer or business might have been and probably was employers, shall be a lien upon said real or the inducement for appellant's appointment personal property to the extent of by the court as a person most likely to suc- the interest of such employer or employers cessfully wind up the affairs of the corpora- in said property, and shall be preferred and tion, especially where, as here, the purpose first paid out of the proceeds of the sale of was to keep it a going concern. If appellant such real and personal property." This act could not afford to undertake the duties re- by its terms creates a lien on the property quired by the appointment at the compensa- for the benefit of wage claimants, and retion usually allowed under such circumstanc- quires such claims to be first paid "out of es, the time to make this known was when the proceeds of the sale" of such property. the appointment was made by the court. There can, however, be no proceeds until a Not having done so, and having accepted sale takes place. Wilkinson v. Patton, 162 the appointment, his duty to the court re- Pa. 12, 29 Atl. 293; Mettfett v. Mohn, 171 quired of him the exercise of his utmost Pa. 395, 33 Atl. 367. Had the property been ability and influence in closing the business, sold by the receiver appointed by the court for which service he would be entitled to re- of common pleas, undoubtedly the wage ceive the compensation usually allowed re- claimants would have been entitled to prefceivers. In view of the fact that his entire erence upon distribution of the fund. The time was not employed in the performance effect of the bankruptcy proceedings in the of his receivership duties, the compensation | federal court, however, was to suspend the of $15,000 allowed him by the auditor was both ample and reasonable under the circumstances, and the surcharge of the $21,000, which he paid to himself under his contract with the company at the time of his appointment as receiver, was entirely proper.

[2, 3] As to the item of $1,008, paid out of the funds of the company for the wholesale liquor license fee for carrying on appellant's individual business, there can be no justification whatever for this payment. Whatever may be the custom in Northumberland county of brewers with respect to the payment of such fees to the persons or companies who handle their products, it is highly improper for an officer of the court to use trust funds for such purpose. Such practice may well be criticized as contrary to public policy, as indicated in the act of June 9, 1891 (P. L. 257, 4; 2 Purd. 2335), which forbids the holder of a wholesale liquor license from being pecuniarily interested in the profits of the business at any other place in the county where liquors are sold or kept for sale. Without passing on this question, however, the payment by the receiver of his individual liquor license out of the receivership funds was highly improper, and the surcharge is sustained.

state court proceedings, under which appellant was appointed receiver, and, instead of a sale, the property was rightly transferred to the trustees in bankruptcy. No fund having been created by sale, the wage claimants must, therefore, await a sale of the property and distribution of the fund realized in the federal court.

In view of this conclusion, appellant was properly surcharged with the claim of his brother for wages. There appears no good reason why the services of a particular driver of a wagon was of such importance that the successful continuation of the business depended upon his retention in the employ of the receiver, as was argued by appellant's counsel.

[5] Appellant also complains of the refusal to allow an item of $1,700, claimed to be due him on an open account, and which the auditing judge disposed of on the ground that the claim was not presented before the auditor, and not sustained by competent proof. Without passing on the correctness of this conclusion, it is sufficient to say that the matter is not in any way referred to in the statement of questions involved, and is therefore not properly before us.

The decree is affirmed, at the cost of ap

[4] The surcharge of $109.33, for wages pellant.

(114 Me. 35)

CROSBY v. LIBBY.

BIRD, J. This is an appeal from the judgment of a single justice, rendered upon a

(Supreme Judicial Court of Maine. Sept. 7, petition brought under sections 70-74, c. 6,

1915.)

1. ELECTIONS 182-BALLOTS "STICKER."

A "sticker" is a gummed slip or strip, within Rev. St. c. 6, § 24, indicating how strips or

stickers may be used.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 158; Dec. Dig. 182.

For other definitions, see Words and Phrases, First Series, Sticker.]

2. ELECTIONS 182-BALLOTS-PASTERS.

Under Rev. St. c. 6, § 10, providing that every general ballot shall contain the names of the candidates and the office for which they have been severally nominated, a ballot whereon the name of a deceased candidate was replaced by a sticker bearing the name of his successor, but whereon the sticker was so placed as to obliterate the designation of the office, is valid, where from inspection of other parts of the same ballot, and of other ballots cast at the same election, the designation of the office covered appears.

[Ed. Note.-For other cases, see Elections, Cent. Dig. § 158; Dec. Dig. 182.]

3. ELECTIONS 194 BALLOTS DISTINGUISHING MARKS.

name was accidental.

R. S., to determine whether the petitioner, at the state election held on September 14, 1914, was duly elected county commissioner of the county of Kennebec for the term beginning January 1, 1915, or whether the defendant was so elected.

The name of the petitioner was printed upon the official ballots. Arthur W. Leonard was also duly nominated for the office of county commissioner, and his name printed upon the official ballots; but on the 13th day of September, 1914, after distribution of the ballots by the secretary of state as provided by section 16, c. 6, R. S., Mr. Leonard died, and the respondent, Morrison Libby, was duly nominated to supply the vacancy, and the nomination certified to the secretary of state, in accordance with R. S. c. 6, §§ 6

and 8.

The printing of new ballots being, as admitted, impracticable, slips containing the A ballot upon which a sticker is placed by new nomination were printed, under the dithe direction of the secretary of state, substitut-rection of the secretary of state (R. S. c. 6, ing another name for that of a deceased candidate, which partially covers the Christian name § 8), and by him distributed to the clerks of of the candidate in the next column, is not in- the cities, towns, and plantations of Kennevalid, as bearing a distinguishing mark, where bec county, with instructions, addressed to it appears that the obliteration of the candidate's the presiding election officers of the several [Ed. Note. For other cases, see Elections, voting places therein, directing them "to Cent. Dig. §§ 166, 167; Dec. Dig. 194.] place on the official ballots the printed slips 4. ELECTIONS 182-BALLOTS-FORM-ERA- Containing the new nomination aforesaid over the name of the above-mentioned Arthur W. Leonard, such slips to be placed upon every ballot before the same has been given into the hands of the voter." Out of the compliance, or attempted compliance, apparently, of the election officers with these instructions, arise questions affecting by far the larger number of ballots now. in dispute. The difficulty confronting us as to these ballots was occasioned by the careless manner in which some of the slips were "pasted" upon sundry ballots.

SURES.

Where a sticker was placed on a ballot by direction of the secretary of state in substitution for the name of a deceased candidate, the fact that the name of such deceased candidate could be distinguished did not render the ballot invalid.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 158; Dec. Dig. 182.] 5. ELECTIONS 186 BALLOTS GUISHING MARKS.

DISTIN

A ballot bearing a cross in the squares above two columns, and showing an attempt to erase one of such squares, is not invalid.

[Ed. Note. For other cases, see Elections, Cent. Dig. 159; Dec. Dig. 186.] 6. ELECTIONS 186-BALLOTS-FORM.

A ballot in which the last syllable only of the Christian name of a candidate appears, due to a broken sticker in the next column, is not invalid.

[Ed. Note.-For other cases, see Elections, Cent. Dig. § 159; Dec. Dig. 186.]

Cornish and King, JJ., dissenting in part.

Appeal from Supreme Judicial Court, Kennebec County, at Law.

Petition by Howard B. Crosby against Morrison Libby to determine the result of an election. From a judgment of a single justice, petitioner appeals. Petition dismissed. Argued before SAVAGE, C. J., and BIRD, HALEY, HANSON, PHILBROOK, CORNISH, and KING, JJ.

William R. Pattengall, of Waterville, for appellant. Frank L. Dutton, of Augusta, for appellee.

In announcing his conclusions, the sitting justice declared he had been guided by the following rules:

"Rule 1. All ballots were counted wherever the title to the office could be discovered by reading the letters that appear above the sticker.

"Rule 2. All ballots were counted when the designation of the office to be filled, though fully covered by the sticker, could be clearly read through the sticker.

the sticker placed in the corresponding column "Rule 3. All ballots were counted, although at the left of the petitioner's name extended over the line and covered the whole or a part of said petitioner's first name."

As most of the ballots disputed were disposed of pursuant to these rules, and the exhibits are arranged accordingly, we will first consider the ballots allowed or rejected under these rules.

The ballots allowed by the sitting justice, 23 in number under rule 1, and those admitted by him under rule 2, 195 in number,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

involve the obliteration in part, or in whole, I voted for by the voter as candidate or candiof the designation of the office. Premising dates for such office or offices." that we do not consider the word "For," preceding the title of the office, as essential or within the requirement of the statute, we will consider the ballots admitted under rules 1 and 2 of the sitting justice together.

by establishing a method so intricate or compliest voter. That intention must, of course, be cated as to circumvent the intention of the honexpressed in compliance with statutory requirements; but those requirements are to be interpreted broadly and reasonably. Section 27 provides that, if for any reason it is impossible to determine the voter's choice for an office to be filled, his ballot shall not be counted for that office. If the converse of this be thereby implied, is possible to determine the voter's choice, a wide namely, that all ballots shall be counted where it latitude would be given to the canvasser. However, it must be a legally expressed choice, with presumptions in favor of the voter rather than against him." Bartlett v. McIntire, 108 Me. 161, 166, 79 Atl. 525.

honest minds to the same conclusion? All The intent of the Australian ballot law such must know from other ballots, or, in- was notdeed, from the same ballot, what the desig-"to limit or defeat the sacred right of franchise nation partly covered was, for the like space in each column is devoted to the same office and its candidate or candidates. Will not knowledge of this fact subconsciously lead one to count, while another fully conscious of the fact refrains? It seems a rule of doubtful reasonableness when honest minds may so differ, and the right of franchise of the voter made to depend upon the number on the one hand of letters exposed, and on the other of letters concealed or erased, and the degree to which the former are apparent, varying in many cases by the merest fraction of an inch. As already stated, it must be as absolutely known from other ballots, and like parts of the same ballot, as any fact may be known, that the place in or upon which a strip or slip is applied is devoted to the candidacy of a certain office, whether the

investigator is a primary counting officer, or the court, or any unofficial person of ordinary intelligence. Is not the intention of the voter clear who accidentally covers the designation of the office in whole or in part by a strip, when the designation of office covered must be perfectly well known?

And in the same case it is said (108 Me. on page 171, 79 Atl. 525) that, in order that a distinguishing mark be effective to cause the rejection of a ballot, it must be established from an inspection of the ballot "that it was made intentionally, and not accidentally." See Libby v. English, 110 Me. 449, 454, 86 Atl. 975; Pub. Laws 1911, c. 71.

date for the office of county commissioner The name of Howard B. Crosby as candicolumn or group from the left by the secrewas printed upon the ballot in the second tary of state. The act, whether of the voter [2] Given, then, a ballot properly prepar- or of the election officer, while applying the ed by the secretary of state, with the desig- strip or slip over the name of the deceased nation of the office and the name of the can- candidate, in the first or left-hand column, didate, the vote should be counted when, from by which it was placed over the whole or inspection of other parts of the same ballot part of the Christian name of Howard B. and of other ballots cast at the same elec- Crosby, was casual and accidental so far as tion, it is apparent what the designation of inspection of the ballot reveals. It is equaloffice covered is. When the designation of ly as idle to assume that the voter or an the office has been placed upon the ballot by election officer, in applying a strip or slip in the secretary of state in conformity with one column, intended to cover part of the law, and it has been covered by the voter in name in the next column, as it is to assume applying the strip or sticker, it cannot be that the voter or election officer purposely contended that such voter applying the stick-covered with a sticker the designation of ofer intended by the same act to render his vote void. Is the presence of the designation of the office upon the ballot less certain and known when wholly covered than when part of its letters are disclosed, or less certain when the parts exposed cannot be read than when they can be read?

The ballots in question under the first two rules of the sitting justice, 23 and 195 in number, respectively, are allowed and counted for respondent.

[3] The ballots of the third class, considered by the sitting justice under rule 3, to the number of 337, are those whereon, as claimed, the slips bearing the name of Morrison Libby extended over into the next group or column to the right, in which the name of petitioner appeared, and covered in part, and in one instance the whole, of his Christian name, "Howard."

It is admitted that Howard B. Crosby and Morrison Libby are the only men of those names in the county of Kennebec, and that there are no men in the county by the name

fice. Such an act on the part of the election officer would have been fraud, which is not to be presumed, and which should be ineffectual to affect the rights of the voter.

Assume a voter, intending to vote for the candidates in the first or left-hand column, places a sticker over the name of the candidate in that column, covering as well the Christian name of the candidate in the column next to the right, or second column, and that he then changes his purpose, and, deciding to vote for the candidates in the second column, makes the appropriate mark in the square at the head of that column. Can it be held an intentional erasure of the Christian name in question? Does an inspection of the ballot reveal such intent? The name of the candidate in the second column was printed there by the proper official, and remains, except that part of the name is casually covered. There can be no question of the voter's intent.

A uniform rule, applicable in all cases, whether a sticker is applied by an official