THE PEOPLE V. CICOTT.

for a ballot wrongfully rejected, because folded in a ballot for the constitutional amendment. Deducting now, from relator's vote eight, and from respondent's seven, for their respective portions of the excess in the Sixth and Seventh Wards, and relator's majority will be reduced to fourteen.

Supposing the jury to have found (as it was competent for them to find) in favor of the inspectors' certificate, instead of the recount in Dearborn, this would take from the relator eight votes, leaving his majority but six. From this deduct the following votes, shown by the testimony of the voters themselves, to have been given for the relator, and who may have been found by the jury to have been disqualified, viz: Chase, who only says he voted "Republican ticket," but who, from the circumstances and the course of examination, would probably have made the exception as to sheriff, if he had voted for the candidate of the opposite party; Burtis, who says directly that he voted for Williams, and Edwards, who only says he voted "Republican ticket," but admits that if he had voted against Williams he would have been likely to remember it. These three votes deducted from relator's majority of six, reduce it to three. These are all the voters claimed to have been unqualified and to have voted for Williams, who are shown by any legal evidence to have voted for him. On the other hand, it appears clearly from the evidence, and is not controverted, that Brennan, who swears he voted for Cicott, was not a voter, not having been a resident of the state for the three months next preceding the election. There was no evidence before the jury from which they could have found him a voter. This was so clear that the respondent's counsel did not contest the point. This, therefore, reduces respondent's vote by one, making relator's majority four.

.

Allowing, therefore, that the jury upon every contested. point in the case, resolved every doubt arising upon all the competent evidence in the case in favor of the respondent and against the relator, the latter was elected by four

THE PEOPLE V. CICOTT.

majority. There was no competent evidence in the case to warrant the verdict given, or upon which it can be sustained.

The verdict should, therefore, be set aside and a re-trial ordered. But as the case has already been once tried in the Wayne Circuit, and its facts may have become matters. of public notoriety there; and since the case was sent there for trial one of the counsel in the case has become the judge of that circuit, and no other judge is required by law to hold a court there for the trial of this case, and it is desirable that an early trial should be had, we have concluded to send the issues to the Circuit Court for the county of Washtenaw for trial.

GRAVES J. concurred.

COOLEY CH. J.

I agree fully with all that is said by my brothers Campbell and Christiancy as to the inadmissibility of evidence to show the nature of an elector's ballot, in any case where it is not first shown that he waived his constitutional privilege of secrecy. And I concur generally in the conclusions of my brother Christiancy upon other points, except as I shall otherwise indicate.

I regret that my brethren are disposed to still follow the case of People v. Tisdale, 1 Doug. Mich. 59, notwithstanding the majority are of opinion that it is unsound in principle. The case has no support, as I think, either in the authorities or in the analogies of the law; and no court outside the state has ever followed it. It is true, as my brethren have remarked, that it lays down a rule easy of application, and one that is no more unfair to one candidate than to another; but it does not seem to me to be sufficient reason for retaining an unsound rule that it is impartial in its infliction of injustice. In every case where it becomes important to apply the rule at all, it has the effect to defeat the clearly expressed will of the electors;

THE PEOPLE V. Сісотт.

and although, if we were to consider voters only as aggregated in two political parties, there might be no reason to complain of it, because it would be likely to defeat one party as often as the other, yet the considerations are very different when we reflect that election contests are between individuals, and that that person is irremediably wronged who, having received a plurality of the suffrages of his fellow citizens, is deprived of his office by the application of some arbitrary and technical rule. It can be little compensation to him that, in the next election, a similar application of the rule deprives a political opponent of an office to which he is fairly chosen, and thereby balances the accounts between the parties by doing equal injustice to an individual member of each. All rules of law which are applied to the expression, in constitutional form, of the popular will, should aim to give effect to the intention of the electors; and any arbitrary rule which is to have any other effect, without corresponding benefit, is a wrong, both to the parties who chance to be affected by it, and to the public at large. The first are deprived of their offices, and the second of their choice of public servants.

The chief argument in favor of the rule of People v. Tisdale is, that ballots cast for parties by their initials only are so uncertain that they cannot be applied without resort to extrinsic and doubtful evidence, to ascertain the voter's intention, and therefore should be rejected. But nothing can be more fallacious. It frequently happens that a man is better known by the initials of his baptismal name, than by the name fully expressed; simply because he is not in the habit of writing his name in full, or of being thus addressed in business transactions. I think it highly probable that that is the case with each of the parties before us. In political conventions, or legislative bodies, no one deems it important to write the full name of a candidate for whom he is voting, and no one ever thinks of challenging the vote for uncertainty. Under the application of this rule to the

THE PEOPLE V. CICOTT.

present case, the curious spectacle will be exhibited, of votes cast for E. V. Cicott and G. O. Williams being rejected because the courts cannot determine for whom they were intended, while not a single person in the county of Wayne has the slightest doubt that they were cast for Edward V. Cicott and Gurdon O. Williams, the opposing candidates at this election. Thus the courts are required to close their eyes to what everybody else can see distinctly.

The fallacy of the rule consists in its assuming that a certain form of ballot clearly expresses the voter's intention, while another form is so uncertain that it is dangerous to attempt to arrive at the meaning by evidence. But in fact no ballot can identify with positive certainty the persons for whom it is cast; and notice must be taken of extrinsic circumstances in order to apply it. It is always possible that other persons may reside in the election district having the same names with some of the candidates; but neither the canvassers nor the courts ever assume that there is any difficulty in these cases, but they count the votes for the persons who have been put forward for the respective offices. And in some cases where an element of uncertainty is introduced into the ballot unnecessarily, as by the addition of an erroneous designation, the courts resolve the difficulty by rejecting the erroneous addition, and counting the ballot for the person for whom it was evidently designed.

If the rule were one which the canvassers could apply in every case, and which left nothing open for controversy in the courts afterwards, it would be less open to objection; but it is not of that character. No one doubts that if votes had been cast in this case for Edward Cicott, or Edward B. Cicott, or Edward Cicott, junior, or Edward Cicott with any other mistaken addition, they must have been counted for the respondent on the facts appearing in this case. People v. Cook, 14 Barb. 259, and 8 N. Y. 67; Milk v. Christie, 1 Hill, 102; Bratton v. Seymour, 4 Watts, 329. Such ballots would be allowed because the error of

THE PEOPLE V. Сісотт.

the voter is not so great, when the facts surrounding the election are considered, as to leave his intent in real doubt; yet no one can fail to see that in every one of these cases the room for doubt is greater than in the case of ballots for E. V. Cicott, and that whatever doubt exists is referred to courts and juries for solution in the one case as it would be in the other. The rule therefore rejects a certain class of ballots on reasons which apply with at least equal force to others which are admitted. And its indefensible character is still more apparent when we consider that abbreviated ballots are received, as well as those which are mis-spelled; so that a vote for Ed. Sekut would be counted, though the Ed. is an abbreviation for several other names besides Edward, and no one would suppose that by this name the person intended was as distinctly pointed out as if the name had been written as it commonly is in business transactions.

The true rule upon this subject I conceive to be this: 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 name resided in the district from which the office was to be filled, and if so, whether they were eligible to the office and were publicly named for it, and the like-is always admissible for the purpose of aiding in the application of any ballot which has been cast: and where the intent of the voter as expressed by his ballot, when considered in the light of such surrounding circumstances, is not doubtful, the ballot should be counted and allowed for the person intended. This rule is just and easy of application; and it has the merit of harmonizing with the rules applied to other written instruments, which I think is no slight recommendation. It is always objectionable and mischievous to lay down different rules for classes of cases which all come within the same reasons.

On the question whether it is competent in this proceeding to inquire into the qualifications of those who voted, I