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

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.2

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. 45, 84, as taking the correct view of those decisions. See People v. Cicott, 16 Mich. 283, for a discussion of this point. Also State v. Griffey, 5 Neb. 161; Clark v. County Examiners, 126 Mass. 282.

2 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 R," or "against detaching R-," it was held that votes cast for

"R
attached," and for "R-de-
tached," 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 St. 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. Ballots in all such cases should receive such a construction as will make them valid if they are capable of it. Cattell v. Lowry, 45 Iowa, 478; State

Where more than one office is to be filled at an election, 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 box 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 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 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

r. Metzger, 26 Kan. 395. And the election should not be set aside when the will of the people is fairly ascertainable from it. Holland v. Davis, 36 Ark. 416, 450.

An obvious misprint of "2" for "1" before "district" will not avoid counting the votes cast in the first district. Inglis v. Shepherd, 67 Cal. 469, 8 Pac. 5. [Where two or more offices are to be filled, the ballots must show for which offices the candidates named on the ballot are intended. Page v. Kuy kendall, 161 Ill. 319, 43 N. E. 1114, 32 L. R. A. 656.]

1 See People v. Cook, 14 Barb. 259 and 8 N. Y. 67.

2 People v. Bates, 11 Mich. 362. See Lanier v. Gallatas, 13 La. Anu. 175; McKinney v. O'Connor, 26 Tex. 5. But inspectors of election have no authority, on the assertion of a voter that he has voted by mistake in the 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. Cicott, 33 Mich. 241.

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, and 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; that the opposing candidate could not claim to be also elected, as having received the second highest 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

1 People v. Kent County Canvassers, 11 Mich. 111. Where officers, e. g. aldermen, one for a long term and one for a short term, are to be chosen, if there is no designation of the terms upon the ballot, it must be rejected. Milligan's App., 96 Pa. St. 222. [A statute provid. ing for "cumulative" voting, giving the right to an elector of a district in which more than one representative to the State legislature is to be elected, to cast one vote for each, or to cast as many votes as there are representatives to be elected from the district, and distribute them as he chooses, was held void in Maynard v. Board of Canvassers, 84 Mich. 228, 47 N. W. 756, 11 L. R. A. 332. The opinion in this case proceeds upon the theory that without express constitutional authority the legislature cannot authorize an elector to cast more than one ballot for the same person for a single office: that the history and traditions of the elective franchise as interpreted by the courts is opposed

to such method of voting, and the constitution must clearly disclose such authority before such innovation in the exercise of the elective franchise is justified.]

2 For decisions bearing upon the freedom of elections and disorder or intimi dation to control it, see Commonwealth v. Hoxey, 16 Mass. 384; Commonwealth v. McHale, 97 Pa. St. 397; Respublica v. Gibbs, 8 Yeates, 429, 4 Dall. 253; State v Franks, 38 Tex. 640; State v. Mason, 14 La. Ann. 505; United States v. Cruikshank, 92 U. S. 542; Roberts v. Calvert, 98 N. C. 580, 4 S. E. 127; Patton v. Coates, 41 Ark. 111; Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; Brassard v. Langevin, 1 Can. Sup. Ct. 145. [In Indiana the very remarkable device of giv ing the bribed elector the right to sue the briber for a penalty of three hundred dollars and attorney's fees was recently adopted, and was sustained in State v. Schoonover, 135 Ind. 526, 85 N. E. 119, 21 L. R. A. 767.]

office; the treating of an elector, with a view to influence his vote, is in some States made an indictable offence; 2 courts are not allowed to be held, for the two reasons, that the clectors ought to be left free to devote their attention to the exercise of this high trust, and that suits, if allowed on that day, might be used as a means of intimidation; legal process 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; 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.

1 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. 309. 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, 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. [It is frequently provided, in order to make bribery ineffective, that ballots bearing distinguishing marks are void. That imprints appearing upon all ballots and imprinted thereon at time of print ing, even though unlawful, are not distinguishing marks, see State v. Saxon, 30 Fla. 668, 12 So. 218, 18 L. R. A. 721; see other cases in note on Australian Ballot Laws, ante, p. 899, n. a. Inscription "O. K." on back of a ballot is a distinguishing mark. State v. Ellis, 111 N. C. 124, 15 S. E. 938, 17 L. R. A. 382. For cases discussing a variety of distinguishing marks, see State v. Walsh, 62 Conn. 260,

25 Atl. 1, 17 L. R. A. 364; Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 779, 13 L. R. A. 761, and note; State v. Barden, 77 Wis. 601, 46 N. W. 899, 10 L. R. A. 155; Talcott v. Philbrick, 59 Conn. 472, 20 Atl. 436, 10 L. R. A. 150.]

case.

2 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 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. The Constitution of Louisiana [1879] requires the General Assembly to forbid by law the giving away or selling of intoxicating drinks on the day of election within one mile of any election precinct. Art. 190.

8 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. Matter of Election Law, 7 Hill, 194; Redfield v. Florence, 2 E. D. Smith, 339.

4 As to what shall constitute intimidation, see Respublica v. Gibbs, 3 Yeates, 429, 4 Dall. 254, and cases, p. 922, note 2. [And a statute prohibiting electioneering within one hundred feet of any polling place on election day is valid. State v. Black, 54 N. J. L. 446, 24 Atl. 489, 1029, 16 L. R. A. 769.]

Betting upon elections is illegal at the common law, on grounds of public policy;1 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