O'CONNELL v. MATHEWS

The provision of St. 1898, c. 548, § 230, that no ballot without the official indorsement except in a certain case provided for shall be deposited in the ballot box, does not prohibit the counting of such ballots when cast in good faith without objection.

A cross marked on a ballot in the square opposite a blank and next below the square opposite the name of a candidate cannot be counted as a vote for such candidate.

HOLMES, C.J.

If it be assumed that mandamus will lie and that the questions argued are open, the decisions of the board of registrars were right. Apart from evidence the form and appearance of the three ballots at least warranted the board in assuming than the ballots were official within § 1 of the statute. If official ballots, they were not forbidden to be counted by the words of the statute. It is true that § 230 prohibits ballots like these being deposited in the box, but this is not equivalent to prohibiting their being counted in case they are deposited without remark. If not allowed to be deposited, the voter could get a perfect ballot and cast his vote. If allowed to be deposited and not counted, the voter is disfranchised. The latter result is not to be admitted without very clear words, and such words would raise a constitutional question which we do not decide.

As to the seventeen ballots with crosses against blanks, the statute clearly intends that the cross shall be against the space for which it counts, §§ 194, 224. The physical arrangement of the ballots bears an unmistakable meaning and, whatever may be conjectured in cases like this, it is impossible to treat the crosses as if they had been put in a different square.

Petitions dismissed.