Patterson v. Hanley

McFARLAND, J., concurring.

I concur in the judgment of reversal, and in all the conclusions as to the points involved. I also concur in the opinion of the chief justice, except as hereinafter indicated.

I would not wish to be understood as concurring in that part of said opinion which might be construed as a commendation of or an apology for our present complex imported election law.

I agree that the crosses stamped after both “Yes” and “No” upon proposed constitutional amendments did not invalidate the whole ticket; because, under the provisions of the law, the only effect was that the vote on the amendment could not be counted. But I do not think that either the court below or this court can say that the crosses were “not intended” as distinguishing marks. The question as to a distinguishing mark always is whether or not the mark is, in fact and law, one which distinguishes the ballot from other ballots; not whether the voter so intended. It is usually impossible to tell what the voter actually intended.

No doubt there might be an appeal in an election case in which it would be proper for this court to order final judg

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ment without doing injustice to either party; but it is apparent that, under the record in the case at bar, such judgment would be entirely unwarranted.

HARRISON, J., concurring.

I concur in the opinion of the chief justice upon the validity of the ballots therein discussed by him. It would without question be proper for this court to make a final determination of an election contest when the record before it is such that the rights of the respective parties can be properly preserved, but it clearly appears from the record herein that the rights of the respondent cannot be determined upon this appeal, and, consequently, that he should be permitted to present a record from which his rights can be ascertained. For this reason I concur in remanding the cause as directed at the close of the opinion of the chief justice.