A History of the Australian Ballot System in the United States/Chapter VI

by Eldon Cobb Evans

CHAPTER VI
THE ATTITUDE OF THE COURTS TOWARD THE AUSTRALIAN BALLOT

I. THE CONSTITUTIONALITY OF THE AUSTRALIAN BALLOT

Practically every reform statute has had to run the gantlet of constitutional objections, and the Australian ballot is no exception to this rule; for every important section of this act has been attacked in the courts as being unconstitutional. The state constitutions at the time of the introduction of the Australian ballot commonly had three provisions relating to the conduct of elections: that “elections should be free and equal,” that all votes should be by ballot,^[1] and that a definition be given of the qualifications of electors.

The term “ballot” or “written ballot” as used had been interpreted by the courts to mean secret ballot. This was the view taken in Vermont in 1832 in the case of Temple v. Mead.^[2] Justice Williams in delivering the opinion of the court said:

In this country, and indeed in every country where offices are elective, different modes have been adopted for the electors to signify their choice. The most common modes have been, either by voting viva voce, that is, by the elector openly naming the person he designates for the office, or by ballot, which is depositing in a box provided for that purpose a paper on which is the name of the person he intends for the office. The principal object of this last mode is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote for either of the candidates who may be before the public.^[3]

These constitutional provisions, while laying down these general principles of a free, equal, and secret election, are unworkable without legislative action. This was early pointed out by Justice Baldwin in delivering the opinion of the court in McKune v. Wheeler.^[4] “All the efficacy given to the act of casting a ballot is derived from the law-making power, and through legal enactments; and indeed, the Legislature must provide for and regulate the conduct of elections or there can be none.” The legislature can accordingly enact laws to make the elective franchise effective, but all regulations so made must be reasonable, uniform, and impartial, and must not subvert or injuriously restrain the right. In Capen v. Foster^[5] Chief Justice Shaw said:

And this court is of the opinion, that in all cases, where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is dearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly, and convenient manner. Such a construction would afford no warrant for such an exercise of legislative power, as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.

The enemies of the Australian ballot contended that this statute was not a reasonable regulation of the right to vote, but on the contrary embarrassed, hindered, and impeded the electors in exercising their constitutional right of suffrage, that it established physical and educational qualifications for voting in violation of the Constitution, and prescribed restrictions upon the eligibility to office.^[6] The courts took a very liberal view and held that the Australian-ballot law carried out and made the franchise more effective, and by protecting the voter against bribery or intimidation gave each vote its proper weight and influence. In State v. Dillon^[7] (1893) the court in sustaining the Australian ballot said: “There is no doubt in our minds about the right of the legislature to prescribe an official ballot and to prohibit the use of any other.” The same view was expressed by the Kansas court in Taylor v. Bleakley^[8] (1895): “The legislature, within the terms of the constitution, may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent intimidation, bribery, and fraud, providing the voting be by ballot, and the person casting the ballot may do so in secrecy.” The courts denied that the Australian act hindered or impeded the exercise of the right of suffrage, or added to the constitutional qualifications for voting, but was, on the contrary, a reasonable regulation of the method of voting designed to protect the voter. The secret ballot has been sustained in the following states: Massachusetts,^[9] New Jersey,^[10] New York,^[11] Pennsylvania,^[12] Illinois,^[13] Michigan,^[14] Missouri,^[15] Florida,^[16] Tennessee,^[17] Virginia,^[18] California,^[19] Kansas,^[20] Iowa,^[21] Montana,^[22] and Wyoming.^[23]

Objections to the provisions for nominations.–The Australian ballot was objected to on the ground that by limiting the right to have their names printed on the ballot to the nominees of parties of a certain size, or to candidates petitioned for by a certain number of electors, it destroyed equality and freedom in voting and discriminated against voters who were not members of such political parties. This objection was overruled by the courts. In the pioneer case on the subject, De Walt v. Bartley,^[24] the court dismissed this point with the observation: “It follows, if an official ballot is to be used, nominations must be regulated in some way; otherwise the scheme would be impracticable and the official ballot become the size of a blanket. While so regulating it, the act carefully preserves the right of every citizen to vote for any candidate whose name is not on the official ballot, and this is done in a manner which does not impose any unnecessary inconvenience upon the voter.” In Miner v. Olin^[25] Chief Justice Field said: “It is plainly impractical to permit on an official ballot the names of every candidate for office which caucuses composed of two or more voters may nominate, and the limitation upon the right of nomination by caucus, contained in the statute, cannot be considered unreasonable, if the provisions of the statute generally are such as the Legislature can constitutionally enact.” The same view has been followed in New York, New Jersey, Illinois, Michigan, Florida, Missouri, Colorado, and Montana. Similarly, a political party may be compelled to use only a certain method to nominate candidates to be placed on the official ballot.^[26]

Objections to the form of the ballot.–The laws of fourteen states prohibit the printing of a candidate’s name in more than one place on the ballot. This ruling has been attacked in the courts as being an unwarranted interference with the freedom of elections, and as debarring one party from indorsing the candidates of another except on condition of surrendering its existence as a party and its right to representation upon the official ballot in the future.^[27] In the cases of Murphy v. Curry^[28] and Commonwealth v. Martin^[29] the provision that a candidate’s name should appear but once upon the ballot was held to be invalid. The courts in a larger number of jurisdictions take the other view and hold that this regulation is within the power of the legislature. If a candidate’s name is printed once on the ballot, the individual has ample opportunity to vote for him, and the right of the individual elector is not interfered with, and this is the only constitutional right guaranteed. Party fealty and sentiment and the continued existence of parties are not subjects of constitutional care, while the confusion and uncertainty arising from double printing is a sufficient reason for prohibiting it.^[30] A recent decision in Illinois, People ex rel. McCormick v. Czarnecki, upholds the same principle.^[31]

The question has also been raised whether the legislature can validly provide for the election of judicial officers on a separate ballot. This right was upheld in an Ohio case in 1912, State v. Miller, 99 N. E. Rep. 1078. The courts have also declared that the legislature is competent to provide for the submission of amendments by their titles or a brief description showing their character and purpose.^[32]

Objections to the procedure of voting.–There have been a number of objections to the manner of voting provided by the Australian-ballot laws of the several states. The most important of these are: Is it within the power of the legislature to grant or deny assistance to electors in marking their ballots? Are the devices for voting a straight ticket by a single mark valid? Can the legislature limit the choice of the electors to the candidates whose names are printed on the ballot?

Among the reasons advanced by Governor Hill, of New York, for vetoing the bill was that the Australian ballot destroyed the secrecy of the ballot for the blind and illiterate, and compelled an avowal of their votes as a condition of exercising the right. This was strongly urged against the ballot, and the claim was set up that such a provision was unconstitutional.^[33] The Virginia Supreme Court in overruling this objection said:

The vote by ballot ex vi termini implies a secret ballot. The secrecy of the ballot is a right which inheres in the voter and of which he cannot be lawfully deprived. It must be, however, in some degree subordinate to the right to vote by ballot, of which it is but a part; and the main object, which is the right to vote, must not be defeated by a too rigid observance of the incidental right, which is that of secrecy. A blind man, or a man unable to read, must, in the nature of things, so far compromise the secrecy of his ballot as to invoke and obtain the aid of others in the preparation of his ballot.^[34]

In Rogers v. Jacob^[35] the question was squarely presented whether illiterate or ignorant electors can be denied assistance in preparing their ballots. The Kentucky Court of Appeals held that the provision of the Kentucky law of 1888 which required an elector to go to a booth and alone and unaided to mark his ballot violated the constitution requiring all elections to be free and equal, because it deprived a person unable to read and write of a free and intelligible choice, and made free suffrage as to them a matter of chance. This is the only case bearing directly on this point, so the law cannot be taken as settled.

As it was shown in discussing the form of the ballot,^[36] a number of states have placed party circles or squares upon the ballot, and an elector can vote for all the candidates of a party by making a single cross (X), while another elector wishing to “split” his ticket may have to mark each candidate separately. Is this an unreasonable discrimination between voters? Upon this point the authorities are equally divided. In Eaton v. Brown^[37] the California court held that the provisions of the law for straight party voting were unconstitutional, as tending to disfranchise voters, and as not being just, equal, and uniform in their operation. The same view was taken by the Court of Appeals of New York in the case of Hopper v. Britt.^[38] On the other hand, the provisions for straight party voting have been upheld in Pennsylvania in the case of Oughton v. Black,^[39] and in Utah in the case of Ritchie v. Richards.^[40]

The question has also been raised whether the legislature can limit the choice of the elector to the names that are printed upon the ballot, and deny to him the right to write in the name of any other persons for whom he wishes to vote. The courts are almost unanimous in declaring that the elector cannot be so restricted. In State v. Dillon^[41] the court said: “But the legislature cannot, in our judgment, restrict an elector to voting for some one of the candidates whose names have been printed upon the official ballot.” The Supreme Court of Missouri, in Bowers v. Smith^[42] refused to construe the Australian act as prohibiting the writing in of the names of candidates, and expressed the opinion that such a construction would render the law unconstitutional. The Illinois Supreme Court, in Sanner v. Patton^[43] and Schuler v. Hogan,^[44] adopted a similar view. There is one decision in which the court asserted that the elector could be restricted in voting to the names printed on the official ballot.^[45] The court reasoned that if the elector could write in the names of candidates, bribers could agree with the bribed to write in a certain name, as “John Jones,” and thus defeat the secrecy of the act. It was also claimed that to permit the writing in of the names of candidates would defeat the purpose of the law in allowing an opportunity to investigate the character and worth of candidates. The consensus of opinion is decidedly against the South Dakota case.

Three states require all ballots to be numbered before they are deposited in the ballot box and the same number recorded on the poll-book opposite the elector’s name. In Missouri and in Colorado this procedure is required by the state constitution, but in Texas, where there is no such constitutional requirement, this provision has been attacked as unconstitutional. The Supreme Court of Texas, in a case decided in 1893,^[46] held the provision to be valid, the court being of the opinion that it protected the public against fraud. The opposite view has prevailed in Indiana, Minnesota, Utah, and Idaho, where it was held that such a provision enabled the ballots to be identified and so violated the secrecy of the ballot.^[47] The latter view appears the more convincing and is more in harmony with the spirit of the Australian ballot.

In a number of states there is the provision that ballots not indorsed with the initials of the election officers shall not be deposited in the ballot box or counted. In Washington^[48] it was held that this was unconstitutional, since the effect of such a provision would be to debar voters from their constitutional right to vote without fault on their part, but because of the negligence of the election officers. This opinion was denied and clearly refuted by the Nebraska court in the case of Orr v. Bailey,^[49] the court pointing out that the law presumed that the election officers would follow directions. The elector is also charged with a knowledge of the law, and he can see whether the signatures are on the back when he folds the ballot, and that it is or is not an official ballot.

2. THE POLICY OF THE COURTS IN INTERPRETING THE BALLOT LAWS

While it is impossible to reconcile the decisions of the courts in the various states, as a general rule they have liberally construed the election laws in aid of the right of suffrage, and have respected the choice of the electors unless expressed in disregard of mandatory safeguards.^[50] In determining whether a provision should be held to be mandatory or directory, two rules have been followed: First, there is a tendency to regard as mandatory acts demanded of the elector, but to view with greater leniency acts wholly required of the election officers unless they are essential to the purity of election. This rule was stated by the Washington court as follows:

The individual may well be called upon to see that the requirements of the law applying to himself are complied with before casting his ballot, and if he should wilfully or carelessly violate the same, there would be no hardship or injustice in depriving him of his vote; but if, on the other hand, he should in good faith comply with the law on his part, it would be a great hardship were he deprived of his ballot through some fault or mistake of an election officer in failing to comply with a provision of the law over which the voter had no control.^[51]

Secondly:

If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance of the requirement. In the absence of such declaration, judiciary endeavor as best they may to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise it is considered immaterial.^[52]

Nominations.–The courts have been frequently asked to interfere where there is a nomination contest, but they have shown a great reluctance to do so. That is due in part to a feeling that this is a political question and not one that the courts should handle.^[53] Secondly, the right of a candidate to have his name placed upon the ballot is entirely of legislative creation, and if the law subjects that right to the decision of a certain tribunal, that excludes the courts from jurisdiction except in the case of fraud.^[54] The tribunal given jurisdiction may be an administrative body, or the courts, or in the case of party candidates it may be the designated party authorities, as the state committee or state convention.^[55] Where an administrative officer is without authority to decide which of two rival factions rightfully represents the party, the courts have interfered to compel the secretary of state to certify both lists of nominees.^[56]

Form of the ballot.–While the use of the official ballot is mandatory, mistakes in the form or dimensions of the ballot will be considered directory, such provisions not being considered essential to the purity of elections. An elector will not be disfranchised by using an official ballot which through the fault of the election officers does not conform to the statute prescribing the size of the ballot, quality and color of paper, character of the type, or color of the ink.^[57] Neither will he be disranchised if the county clerk included unauthorized names on the ballot;^[58] nor because the ballot does not state the political affiliations of the candidates;^[59] nor because the names of all independent candidates are not printed in one column as required by statute;^[60] nor because of the failure of the county clerk to publish the names of candidates in the manner required by law;^[61] nor because the names of certain candidates are printed under the wrong party device.^[62] But if objections to the form of the ballot are made before the election, the statutory requirements will be held mandatory.^[63]

The statutory provisions relating to the indorsement of the ballot are considered by the courts to be essential to the purity of elections, and are held to be mandatory. Justice Phillips in delivering the opinion of the court in Kelly v. Adams said:

The evidence shows that this ballot had no indorsement to show that it was an official ballot provided in accordance with the law. To ignore this provision and allow ballots to be counted which do not contain the official indorsement would authorize the voting of ballots that might have been surreptitiously obtained or copied, and one of the purposes of the Ballot law be entirely frittered away and the door opened for fraud. The absence of the official indorsement would have been sufficient cause for the rejection of this ballot.^[64]

Although the indorsement of the initials of the judges or poll clerks is mandatory, the requirement that the initials be indorsed in a particular place is directory.^[65] It has also been held that the provision requiring the initials of two judges of opposite parties is directory only, and in the absence of fraud a ballot may be counted although the initials indorsed thereon were those of two judges of the same party.^[66] The indorsement must be made by the judge’s own hand. He can neither authorize others to sign his name, nor can he use a rubber stamp.^[67] If the statute requires the initials of two judges, ballots bearing only one judge’s signature must be rejected.^[68] Where the law provides that all ballots shall be numbered, such a provision is mandatory and ballots not so numbered cannot be counted.^[69]

Marking the ballot.–The provisions of the law relating to the marking of the ballot are generally held to be mandatory, because to permit any other mark than the one provided by law would make possible the use of distinguishing marks, and thus rob the ballot of its secrecy. Under this rule the question “whether a ballot should be counted does not depend solely upon the power to ascertain and declare the choice of the voter, but also upon the expression of that choice in the manner provided by statute.”^[70] Ballots have been declared void in whole or part if the cross was placed on the wrong side of the name of a candidate;^[71] or if the cross was placed above or below the candidate’s name instead of in the appropriate square; or where the cross did not touch the circle or square.^[72]

In some jurisdictions the courts feel that this rule should be relaxed in order not to disfranchise innocent voters. In Mauck v. Brown^[73] the Nebraska court held that it was not essential to a valid ballot that the cross be in the circle or square. If the cross is either to the right or left of, and opposite to, the name of a candidate, it may indicate the choice of the elector. In a straight party ticket, if the cross is within the space containing the circle, although not touching the latter, it is sufficient to indicate the choice of the voter. The same view has been followed in Colorado^[74] and Washington.^[75]

The question of what constitutes a valid cross has been the occasion of much litigation. Almost every mark which a voter could make or neglect to make has been discussed in the state courts. Although the statutes regulating the manner in which a voter shall indicate his choice are held mandatory, yet through all the decisions is the theory that a voter should not be disfranchised if he has made an honest effort to comply with the requisites of the law.^[76] It is fully realized that many electors through carelessness, nervousness, or physical disability do not make the conventional cross mark (X) in anything like perfect form. So it has been held that any mark which apparently was honestly intended for a cross mark and nothing else must be given effect as such.^[77] Thus cross marks in the form T or >< were held to be valid in Illinois.^[78] In Rhode Island a hook and a Y-shaped mark were held legal within the statute. Marks consisting of two downward strokes and one horizontal have been allowed.^[79] But it is not a valid cross where two lines do not cross one another;^[80] nor where there is a straight line at the left of a candidate’s name; nor where there are one or more circles within the circle at the head of the ticket.^[81] Wisconsin has gone farther than any of the other states in defining what constitutes a valid cross mark. The law declares that the voter may indicate his intention by an X or any other mark as ʃ, \, V, O, –, |, +.^[82] Apparently any mark would be valid in Wisconsin.

While the statutes provide that certain instruments shall be used in marking the ballot, these provisions are held to be merely directory. But the law can be worded in such a way that the courts must regard it as mandatory, in which case the elector must mark his ballot in the manner pointed out by the act.^[83] The voter may not use a paster containing the names of his candidates unless the statute so provides.^[84]

Connected with the question of what constitutes a valid indication of an elector’s intention is the question of what is a distinguishing mark, which is everywhere prohibited by statute. It is impossible to state any rule applicable to all cases. “The intent of the voter must be determined by an inspection of the ballot, and upon whether there is any mark thereon by which it may be identified, irrespective of any conjectures as to the purpose or circumstances under which the mark was made.”^[85] What constitutes an identifying mark is a question of fact rather than of law, and the decisions of the courts differ. The following marks have been held to be distinguishing marks and to invalidate the ballot: names or initials on the ballot;^[86] a mark resembling an imperfect circle, or a small circle, within the circle at the head of the ticket;^[87] ballots marked with a star instead of a cross;^[88] a number of ballots folded alike in a striking and unusual manner;^[89] a cross in a vacant space not opposite the name of a candidate, or before or after the words “no nomination”;^[90] a diagonal black line in one of the spaces for writing in the name of candidates;^[91] a stamp in the blank space which contained no names;^[92] expressions written on the ballot, as “rats” and “don’t want no king”;^[93] mark resembling a figure 4, or any mark other than a cross;^[94] writing in the blank column the names of candidates already printed on the ballot;^[95] marks made by the voter in attempting to correct his own errors by endeavoring to erase with a rubber or by striking the pencil through the mark;^[96] ballots marked with the word “yes” in the party square;^[97] ballots with a cross in the Republican circle and irregular marks across the face of four of the tickets;^[98] ballots with a cross in the Democratic circle and horizontal lines through the other five circles.^[99]

On the other hand, marks like the following have been held not to be fatal: a straight diagonal line which was apparently part of a cross which the voter forgot to complete;^[100] a dotlike mark made close to the end of a cross;^[101] a ballot with a cross unusually heavy;^[102] two crosses in the party circle;^[103] a cross mark in each column in which a candidate’s name appears;^[104] or a number of crosses in the voting space opposite the candidate’s name;^[105] writing by a voter on his ballot of the party affiliation of a candidate whose name he had also written in.^[106]

1. Kentucky until 1890 required viva voce voting at state elections.
2. Temple v. Mead, 4. Vt. 535.
3. Accord: People v. Pease, 27 New York 45 (decision in 1863); Williams v. Stein, 10 American Rep. 97 (decision in 1871, Indiana case). “The common understanding in this country certainly is, that the term ‘ballot’ implies secrecy. I have nowhere found a dictum to the contrary,” 10 American Rep. 99.
4. McKune v. Wheeler, 11 California 49.
5. Capen v. Foster, 12 Pickering 485.
6. Veto message of Governor Hill, 1889; Pearson v. Supervisors of Brunswick County, 91 Va. 322; State ex rel. Brown v. McMillan, 108 Mo. 153.
7. State v. Dillon, 32 Fla. 545 (1893).
8. Taylor v. Bleakley, 55 Kan. 1 (1895).
9. Miner v. Olin, 159 Mass. (1893).
10. Ranson v. Black, 54 N. J. L. 446 (1893).
11. People v. Shaw, 133 N. Y. 493; People v. Wappinger Falls, 144 N. Y. 616.
12. De Walt v. Bartley, 146 Pa. St. 529 (1892).
13. Sanner v. Patton, 155 Ill. 553 (1895).
14. Attorney-General v. May, 99 Mich. 568; Detroit v. Rush, 82 Mich. 532.
15. State v. McMillan, 108 Mo. 153; Bowers v. Smith, 111 Mo. 45.
16. State v. Dillon, 32 Fla. 545.
17. Cook v. State, 90 Tenn. 407.
18. Pearson v. Brunswick County, 91 Va. 322.
19. Eaton v. Brown, 96 Cal. 371.
20. Taylor v. Bleaklet, 55 Kan. 1.
21. Whittam v. Zahorik, 91 Iowa 23.
22. Price v. Lusk, 10 Mont. 61.
23. Slaymaker v. Phillips, 5. Wyo. 453. In many jurisdictions the law has been declared to be constitutional in an obiter dictum of the highest court.
24. De Walt v. Bartley, 146 Pa. St. 529.
25. Miner v. Olin, 159 Mass. 487.
26. Hager v. Robinson, 157 S. W. Rep. 1138.
27. Dissenting opinion of Justice Winslow in State ex rel. Runge v. Anderson, 100 Wis. 523.
28. 137 Cal. 479.
29. 20 Pa. Co. Ct. 117.
30. State ex rel. Runge v. Anderson, 100 Wis. 523; Todd v. Election Commissioners, 104 Mich. 474; State v. Burdick, 46 Pac. 854; Hayes v. Ross, 127 Pac. 340; State ex rel. v. Bode, 55 Ohio St. 224.
31. People ex rel. McCormick v. Czarnecki, 107 N. E. 625.
32. State v. Winnett, 110 N. W. 1113; Lovett v. Ferguson, 10 S. D. 44.
33. Pearson v. Brunswick County, 91 Va. 322.
34. Ibid.; see also Attorney-General v. May, 99 Mich. 568.
35. 88 Ky. 502.
36. See pp. 50–51.
37. 96 Cal. 371.
38. 96 N. E. Rep. 371.
39. 61 Atl. Rep. 346.
40. 14 Utah 345.
41. State v. Dillon, 32 Fla. 545.
42. 111 Mo. 45.
43. Sanner v. Patton, 155 Ill. 553.
44. 168 Ill. 369; see also Bradley v. Shaw, 133 N. Y. 493; Taylor v. Bleakley, 55 Kan. 1; De Walt v. Bartley, 146 Pa. St. 529; Cook v. State, 90 Tenn. 407; State v. Anderson, 100 Wis. 573; Cole v. Tucker, 164 Mass. 486. In most of these cases the court’s opinion is obiter dictum.
45. Chamberlin v. Wood, 56 L. R. A. 187 (South Dakota, 1901).
46. State v. Connor, 86 Tex. 133.
47. Williams v. Stein, 38 Ind. 89; Brisbin v. Cleary, 26 Minn. 107; Ritchie v. Richards, 14 Utah 345; McGrane v. County of Nez Perces, 18 Idaho 714.
48. Moyer v. Van De Vanter, 12 Wash. 377.
49. Orr v. Bailey, 80 N. W. 495; Lorin v. Seitz, 8 N. D. 404; Miller v. Schallern, 8 N. D. 395; Kirkpatrick v. Deegan, 53 W. Va. 275.
50. Nance v. Kearbey, 251 Mo. 374.
51. Moyer v. Van De Vanter, 12 Wash. 377, at 383.
52. Bowers v. Smith, 11 Mo. 45: at 61; accord: Parvin v. Wimberg, 130 Ind. 561; Barnes v. Board, etc., 51 Miss. 305; Ledbetter v. Hall, 62 Mo. 422; Slaymaker v. Phillips, 5. Wyo. 453; Gilleland v. Schuler, 9 Kan. 569.
53. Phelps v. Peper, 48 Neb. 724.
54. Miller v. Clark, 62 Pac. 664; People v. Rose, 211 Ill. 249.
55. State v. Houser, 100 N. W. Rep. 964; People v. Dist. Ct., 74 Pac. 896; Moody v. Trimble, 58 S. W. 504; Burke v. Foster, 36 So. 32; Fernbacker v. Roosevelt, 90 Hun. 441; In re Fairchild, 151 N. Y. 359.
56. Shields v. Jacobs, 88 Mich. 164; People v. Dist. Ct., 18 Colo. 26.
57. Short v. Gouger, 130 S. W. 267.
58. Bowers v. Smith, 111 Mo. 45; accord: Lindstrom v. Manistee County, 94 Mich. 467; State v. Walsh, 62 Conn. 260; Fields v. Osborne, 60 Conn. 544; contra: Price v. Lush, 10 Mont. 61.
59. State v. Norris, 37 Neb. 299.
60. Murphy v. Battle, 155 Ill. 182.
61. Atkinson v. Lay, 115 Mo. 538; Allen v. Glynn, 17 Colo. 338; People v. Avery, 102 Mich. 572.
62. Allen v. Glynn, 17 Colo. 338.
63. Baker v. Board, etc., 68 N. W. 752.
64. Kelly v. Adams, 183 Ill. 193; accord: Kirkpatrick v. Board of Canvassers, 44 S. E. 465; Slaymaker v. Phillips, 5 Wyo. 453; McKay v. Minner, 154 Mo. 608; Perkins v. Bertrand, 192 Ill. 58; Kelso v. Wright, 110 Iowa 560; Grubb v. Turner, 259 Ill. 436; Hanscom v. State, 31 S. W. 547; Miller v. Schallern, 79 N. W. 865; Orr v. Bailey, 59 Neb. 128; contra: King v. State, 70 S. W. 1019; Truelsen v. Hugo, 91 N. W. 434.
65. Horning v. Burgess, 77 N. W. 446; Jones v. State, 55 N. E. 229; Parvin v. Wimberg, 130 Ind. 561.
66. State v. Gay, 59 Minn. 6.
67. Rhodes v. Driver, 64 S. W. 272; Arnold v. Anderson, 93 S. W. 692; Berryman v. Megginson, 82 N. E. 256.
68. McKay v. Minner, 154 Mo. 608; Orr v. Bailey, 59 Neb. 128.
69. Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo., 350; State v. Connor, v. 86 Tex. 133.
70. Whittam v. Zahorik, 91 Iowa 23.
71. Apple v. Barcroft, 158 Ill. 649; Patterson v. People, 65 Ill. Ap. 651; Curran v. Clayton, 29 Atl. 930; State v. Sadler, 25 Nev. 131; Howser v. Pepper, 8 N. D. 484; McKittrick v. Pardee, 8 S. D. 39; Vallier v. Brakke, 7 S. D. 343.
72. Hennessy v. Porch, 247 Ill. 388; Curran v. Clayton, 29 Atl. 930; Sego v. Stoddard, 136 Ind. 207; McKittrick v. Pardee, 8 S. D. 484; Parvin v. Wimberg, 130 Ind. 561.
73. Mauck v. Brown, 59 Neb. 382.
74. Young v. Simspon, 42 Pac. 666.
75. State ex rel. Orr v. Fawcett, 17 Wash. 188.
76. See Cyclopedia of Law and Procedure, XV, 353.
77. Pennington v. Hare, 60 Minn. 146; In re Middendorf, 4. Pa. Dist. R. 78; Parker v. Orr, 158 Ill. 609; Ogg v. Glover, 83 Pac. 1039.
78. Parker v. Orr, 158 Ill. 609.
79. Houston v. Steele, 98 Ky. 596.
80. Apple v. Barcroft, 158 Ill. 649.
81. Valier v. Brakke, 7 S. D. 343.
82. Wisconsin Laws, 1891, ch. 379, as amended by the laws of 1899, ch. 349.
83. Cyclopedia of Law and Procedure, XV, 356.
84. People v. Shaw, 64 Hun. 356; De Walt v. Bartley, 146 Pa. St. 529; Roberts v. Quest, 173 Ill. 427.
85. People v. Campbell, 138 Cal. 11, at 20.
86. Bloedel v. Cromwell, 104 Minn. 487; Pennington v. Hare, 60 Minn. 146; Tandy v. Lavery, 194 Ill. 372.
87. Grubb v. Turner, 102 N. E. 810; People v. Bourke, 63 N. Y. Suppl. 906.
88. Coulehan v. White, 95 Md. 703; Sweeney v. Hjul, 23 Nev. 409.
89. State v. Walsh, 62 Conn. 260.
90. People ex rel. Feeny v. Board, etc., 156 N. Y. 36; People v. Campbell, 138 Cal. 11.
91. People v. Parkhurst, 53 N. Y. Suppl. 598.
92. Sego v. Stoddard, 136 Ind. 297.
93. State v. Fawcett, 17 Wash. 188.
94. Durgin v. Curran, 77 Atl. 689.
95. People ex rel. Feeny v. Board, 156 N. Y. 36.
96. Ibid.; People v. Campbell, 138 Cal. 11; Vorhees v. Arnold, 108 Iowa 77; State v. Sadler, 25 Nev. 131.
97. Grubb v. Turner, 102, N. E. 810.
98. Ibid.
99. Ibid.
100. People v. Parkhurst, 53 N. Y. Suppl. 598.
101. Ibid.
102. State v. Peter, 21 Wash. 243.
103. Tandy v. Lavery, 194 Ill. 372; Houston v. Steele, 98 Ky. 596.
104. Parker v. Hughes, 64 Kan. 216; People v. Richmond Co., 50 N. E. 425.
105. State v. Fawcett, 17 Wash. 188; People v. Parkhurst, 53 N. Y. Suppl. 598.
106. Jennings v. Brown, 114 Cal. 307.