West Calgary Election Case (Bennett v. Shaw), (1922) 64 SCR 235

Supreme Court of Canada

West Calgary Election Case (Bennett v. Shaw), (1922) 64 SCR 235

Date: 1922-06-17.

Richard B. Bennett (Petitioner) Appellant.

and

Joseph T. Shaw (Respondent). Respondent.

1922: June. 12, 13; 1922: June. 17.

Present: Idington, Duff, Anglin, Brodeur and Mignault JJ.

CONTROVERTED ELECTION FOR THE ELECTORAL DISTRICT OF WEST CALGARY

Election law—Scrutiny—Ballots—Marking—Provision as to lead pencil and cross—"Dominion Elections Act", 10 & 11 Geo. V, c. 46, s. 62, ss. 3.

The provision of sub-section 3 of section 62 of the "Dominion Elections Act" that "the voter shall * * * mark his ballot by making a cross with a black lead pencil * * * is imperative.

Ballot papers marked in ink or with a coloured pencil, or marked with an upright stroke resembling figure "1", are not valid.

Duff and Mignault JJ. expressed no opinion as to ballots other than those marked with figure "l".

Bothwell Election Case (8 Can. S.C.R. 676) and Jenkins v. Brecken (7 Can. S.C.R. 247) ref. to.

Judgment of the trial judges ([1922] 1 W.W.R. 993) affirmed.

APPEAL from the judgment of Stuart and Ives JJ.,[1] sitting as trial judges under the provisions of the "Dominion Controverted Elections Act," R.S.C. (1906) chapter 7, in the matter of the controverted election of a member for the Electoral District of West Calgary in the House of Commons of Canada, rendered on the 1st of April 1922, dismissing the appellant's petition with costs and declaring that the respondent was the duly elected member of the Dominion Parliament for that district.

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The election was held on the 6th of December, 1921. At the election the candidates were the petitioner, the respondent and one Ryan. On the 14th of December, 1921, the returning officer added up the votes and declared the result of the poll, as follows:

Bennett	7,372
Shaw	7,366
Ryan	1,354

A recount was then applied for by the respondent and held before Winter District Judge. On such recount, the District Judge, on the 23rd of December, 1921, certified the result of poll, as follows:—

Shaw	7,369
Bennett	7,353
Ryan	1,351

The principal grounds, upon which the District Judge held that a certain number of ballots should be rejected, were that some were marked in ink, some with a coloured pencil and some with the figure "1".

To this ruling and certain other rulings on the recount, which were given on grounds of minor importance, the petitioners objected and accordingly filed this petition.

The case was tried before Stuart and Ives JJ., who declared that the respondent was duly elected for West Calgary Electoral District, with a majority of 17 instead of 16 votes, affirming on the main grounds the decision of the District Judge.

Aimé Geoffrion K.C. and A. McL. Sinclair K.C. for the appellant. The provisions of the "Dominion

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Elections Act" are directory and not mandatory; Jenkins v. Brecken[2]; Bothwell Election Case[3]; Haldimand Election Case[4]; Wentworth Election Case[5].

All ballots, marked other than with a cross or with a black lead pencil but so marked as to indicate clearly the intention of the voters, and which the judges are not by statute directed to reject, should be counted. Woodward v. Sarsons[6].

Eug. Lafleur K.C. and Geo. H. Ross, K.C. for the respondent. The ballot must evidence a clear intention on the part of the voter to comply with the provisions of the "Dominion Elections Act," and if it does not the ballot should not be counted. Bothwell Election Case[7]. The voter must make a cross with a black lead pencil; Jenkins v. Brecken2; South Oxford Election Case [8] North Bruce Election Case[9].

Aimé Geoffrion K.C. and A. McL. Sinclair K.C. for the appellant.

Eug. Lafleur K.C. and Geo. H. Ross, K.C. for the respondent.

Idington J.—This appeal arises out of the dismissal by Mr. Justice Stuart and Mr. Justice Ives of an election petition claiming for the appellant the seat for West Calgary in the Dominion Parliament.

The first ground taken is that a recount had before the district judge ought to have been confined to the objections taken before the deputy returning officer and in turn that the trial should have been restricted accordingly.

The like objections having been taken unsuccessfully long ago, and never successful when taken since, tends to arouse a suspicion that counsel feels his other grounds of appeal are not so strong as he would desire.

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I see nothing in the grounds thus taken; and do see some useful purposes which subsection (3) of section 70 of the "Dominion Elections Acts" serves, without making a basis for such objections.

Turning to the more arguable grounds taken, relative to the marking of the ballots, I am of the opinion that section 62, subsection (3) in the first sentence thereof, which reads as follows

(3) the voter, on receiving the ballot paper, shall forthwith proceed into one of the polling compartments and there mark his ballot paper by making a cross with a black lead pencil within the white space containing the name of the candidate or of each of the candidates for whom he intends to vote,

means just what is says, in imperative terms, and is mandatory.

If there ever had been a doubt of what Parliament intended it has, I submit, been entirely removed by the successive enactments spread over nearly fifty years, referred to in the judgment of Mr. Justice Stuart speaking on behalf of the trial court, in each amendment using more distinct and imperative terms ending in that which I have just now quoted.

The course of said legislation may be summarized thus:—

It began in 1874 with merely directing a cross to be placed opposite the name of the candidate for whom the vote was intended to be cast; that in 1878 directed the cross to be made by a pencil; that in 1894 directed a cross with a pencil on the white portion of the ballot paper, opposite, or within the division containing, the name of the candidate intended to be voted for; that in 1900 directed the elector to make a cross with a black lead pencil within said white space, and in 1920, as above stated.

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The possible toleration of use of pen and ink only lasted four years and for very obvious reasons ceased to have any semblance of right.

In light of such a course of legislation I cannot see how any English decision, under an Act essentially different in its wording and containing no such restrictions, can help us. And as no Canadian decision binding us upholds the right to use pen and ink in making the cross, I fail to see how any votes so made can be counted. And equally so any made with a red pencil, or anything but a black lead pencil, must be discarded.

The question of cross or no cross comes next to be considered, and in connection with that feature of this appeal we are asked to count ballots marked with the figure 1, which was used instead of a cross on twenty-nine Calgary ballots.

It is urged that this use of the figure 1 arose out of voters having to use it at municipal elections, carried on under the proportional representation system, adopted therefor in Calgary.

As an explanation of a curious development, when no better can be got, it is interesting, as the latest thing to be tried on judges in an election case, but beyond that I do not see in it a good argument especially to induce them to ignore the plain provisions of a statute.

It happens to be a rather inappropriate one in fact, for under proportional representation the figure 1 is only used to express the first choice of the voter, and he is expected to go on and name his second and third choices by using the figures 2 and 3.

Seeing there were three candidates, at the election in question, one would have expected to find some one

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of the many voters using the figure 1, to have gone on, if acting in truth as if on the supposition of the voting being under the proportional representation system, and given the figures 2 and 3 also a chance.

The habit of using 1 in two previous municipal elections does not seem a very satisfactory explanation for refraining from using a cross. I fear the right habit had not been fully formed. It may be better than none in the way of looking at the possible character of the Act, but I doubt if it is.

Long ago many voters who had no choice went to the poll merely as a means of getting rid of the importunities of the canvassers; and possibly that is a better explanation for the peculiar form adopted.

So far as I am concerned I cannot count the figure 1 as a cross, or intended as a cross, and am of the opinion that all such ballots, so marked, ought to be discarded.

I observe Mr. Justice Stuart regrets that Parliament could not have used language that would have settled the matter of marking ballots, without leaving it to judges to cudgel their brains over.

I am rather inclined to regret, with great respect, that some judges in the past, happened occasionally to be dissatisfied with the common sense use and application of plain language, lest some perverse or stupid electors should by its application lose their votes.

Common sense says the loss of such electors' votes is no harm to the country, and it happens generally, though not here, that they are equally distributed between or amongst the candidates.

The conclusion I have reached render it unnecessary for me to pursue the matters in question further, for, in my opinion, the appeal fails and should be dismissed with costs.

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Duff J.—The appeal has been presented on behalf of the appellant in a manner which enables me to proceed at once to the consideration of the ground of appeal which admittedly, in the view I take, is decisive.

A certain number of ballot papers were marked by an unright stroke which it may be assumed was a figure representing the number one. All such ballots were rejected and the point upon which it is necessary to pass is whether or not they were rightly rejected. The argument on behalf of the appellant is two-fold. 1st, it is said that the requirement of sec. 46, of the "Dominion Election Act" that the ballot papers shall be marked with a cross is directory only, and that if the paper is marked in such a way, (that is to say, by some mark placed within the division containing the name of the candidate) as to indicate an intention to vote for that candidate and is not of such a character as to fall within the description of s.s. 2 (c) of sec. 66 of the "Elections Act" of 1920

upon which there is any writing or mark by which the voter could be identified,

then the ballot ought to be counted. 2nd, it is said that the procedure in the counting of votes is exhaustively laid down by s.s. 2 and s.s. 4 of sec. 66 and that by those two subsections it is the duty of the deputy returning officer to count all ballot papers not rejected by him as falling within one of the classes a, b or c, enumerated in s.s. 2, which classes include only ballots not supplied by the deputy returning officer. ballots by which votes have been given for more candidates than are to be elected and ballots upon which there is some writing or mark by which the voter could be identified, and it is contended that ballots marked as those which are now under consideration do not fall within any one of these categories.

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In support of these contentions the appellant appeals to the course of decision under the English Act of 1872 and the schedules thereto. If we were free to consider the question without reference to previous decisions and pronouncements of judges of this court I should be disposed to attach a good deal of weight to the argument that it is not easy to distinguish in substance and effect the statutory provisions now before us from those upon which the English and Scotch judges have from time to time been called upon to pass; and it is really not suceptible of dispute that the English and Scotch judges have arrived at a view of the statute they are accustomed to administer under which the ballot papers now under consideration would be held to be sufficiently marked and would be counted as votes.

But we are, I think, relieved from the duty of approaching the question from that point of view. In the Bothwell Case [10] the Chief Justice of this court formulated a rule that where a voter had placed upon his ballot a mark indicating

a clear intent not to mark with a cross as the law directs, as for instance, by making a straight line or a round 0, then such non-compliance with the law, in my opinion, renders the ballot null.

This is only one branch of the rule enunciated there by the Chief Justice with the object of providing a formula capable of practical application in determining the sufficiency or insufficiency of the marking of a disputed ballot. It is implied in what the learned Chief Justice says that it is essential that the mark shall be something capable of being described as a cross; he finds it impossible, he says, to lay down

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a hard and fast rule by which it can be determined whether a mark is a good or a bad cross and the test is, he thinks, to be found in the answer to the inquiry whether

the mark evidences an attempt or an intention to make a cross.

That is the inquiry the result of which determines whether or not the mark is a sufficiently good cross. If there is evidence of such an attempt then the ballot is to be counted unless the mark or marks on the paper are of such a character as to exhibit an intention to provide means for identification, in which case the ballot should be rejected. But a mark made with the intention of making a cross is essential, and a straight line is therefore insufficient as clearly shewing an intention not to do what the law requires, to make a cross. This pronouncement of the learned Chief Justice was formally concurred in by Mr. Justice Fournier and by Mr. Justice Gwynne. Mr. Justice Fournier's judgment is interesting as shewing that these three members of the court explicitly adopted the rule enunciated by the Chief Justice as furnishing at least one test which deputy returning officers might apply in deciding whether disputed ballots should be counted or not counted. I emphasize this for reasons which will appear presently.

The decision in the Bothwell Case [11] followed a decision in the previous year, Jenkins v. Brecken [12] and on that appeal it had been decided by a court including all the judges who sat in the Bothwell Case  [13]11 with the addition of Mr. Justice Taschereau, that an upright stroke placed in the compartment containing the candidate's name was not a sufficient mark;

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and indeed was considered to be of so little importance or significance that where two candidates were to be elected and a cross was placed in each of two compartments containing the names of candidates and an upright stroke opposite the name of a third candidate in another compartment it was held that the upright stroke might be ignored and that the crosses should be counted as valid votes; and it was also held that an /?/ as distinguished from a cross, a mark in which apparently there was no intersection of the lines, was not a sufficient mark.

There is in the report of this case no reasoned discussion of the questions raised touching the marking of the ballots. But in the Bothwell Case[14] we find the key, I think, to the decision; the marks referred to did not evidence an attempt to make a cross and were therefore treated as inoperative.

Mr. Geoffrion argued that the last sentence of the passage in the judgment of the Chief Justice in which he expounds his rule shews that the Chief Justice was not enunciating a rule of law but drawing an inference of fact and that the substance of his judgment upon this point is that the proper inference from the circumstance that a voter who has used an upright stroke, for example, to mark his ballot instead of attempting to make a cross, is that he is attempting to provide some means by which his ballot paper can be identified. It is undeniable that one sentence of the judgment is a little perplexing. After stating that noncompliance with the direction to make a cross in the sense above indicated evinces a wilful departure from the direction which nullifies the ballot paper, he proceeds,

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the irresistible presumption from such a plain and wilful departure from the terms of the statute being that it was so marked for a sinister purpose.

This sentence is, I agree at first sight a little puzzling; but reflection has confirmed the view I intimated upon the argument that the learned Chief Justice was not laying down what he conceived to be a just inference of fact in every particular case from the circumstance that a ballot is found to be marked with a single stroke or a round 0, an inference which I am quite sure the Chief Justice would not have considered justified, but is stating what he conceived to be the theory upon which the statute, on his construction of it, might have been rested, namely, that the requirement of the cross in the sense explained might reasonably be made imperative because speaking generally people marking their ballots with an honest intention to vote and no desire to provide a means of identification would follow the direction of the law and attempt to make a cross.

I think the learned Chief Justice while impressed on the one hand with the danger of excluding ballots marked only with an honest intention of giving a vote was at the same time fearful of opening a wide door to the employment of corrupt devices if the direction of requiring a cross should be wholly disregarded.

But I do not think the method by which the Chief Justice arrived at his result is important. The rule itself is stated in a manner leaving no room for doubt. If it is clear that the voter has not attempted to make a cross the ballot is not to be counted; if the mark by its character sufficiently evidences an attempt to make one the ballot is to be counted unless there is

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adequate evidence of an intention to provide means of identification; and the exposition of the formula by his colleagues who concurred with him is equally clear. At p. 706 Fournier J. says:—

Dans le cours de la discussion de cette cause l'honorable juge en chef ayant soumis à l'examen de ses collègues une règle formulée de manière à couvrier à peu près toutes les difficultés qui peuvent être soulevées à propos de la marque des bulletins, tous les membres de la cour y ont donné leur adhésion. Cette règle n'est toutefois pas susceptible d'une application aussi générale que celle énoncée dans la cause de Woodward et Sarsons[15] car on ne pourrait pas l'invoquer pour valider un bulletin, comme dans les cas ci-dessus cités, ne portant par exemple qu'une seule ligne perpendiculaire ou horizontale. Dans ce cas, suivant notre règle, on ne peut pas considérer qu'il y eut de bonne foi une tentative de faire une croix, et les bulletins marqués de cette manière seraient rejetés. Je n'ai pas besoin de répéter ici la formule de cette règle que l'honorable juge en chef a déjà lue tout au long dans ses notes sur cette cause.

And at p. 717 Mr. Justice Gwynne says:—

To avoid therefore, as far as possible running the risk of avoiding an honest vote, I concur in adopting as the rule by which the court shall be governed in all questions to arise as to the sufficiency of a mark upon ballot papers in order to constitute a good vote, the rule as laid down in the judgment of his lordship the Chief Justice in this case.

Mr. Justice Henry seems to have concurred with the judgment of the Chief Justice. Mr. Justice Strong declined to express any opinion upon the point now under discussion.

It is quite true that for the purpose of deciding the Bothwell Case[16]  it was unnecessary to express any opinion upon the question now discussed although I am inclined to think that the two decisions referred to when read together constitute a binding authority upon it.

I do not, however, rest my decision upon that. The rule laid down by the Chief Justice and by at least two of his colleagues in the most explicit terms gives a concrete formula "by which" to quote

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Mr. Justice Gwynne again,

the Court shall be governed in all questions to arise as to the sufficiency of a mark upon ballot papers to constitute a good vote;

and that rule must have passed into and governed election practice and have been the decisive factor in numerous cases depending upon the validity or invalidity of disputed ballots. In that sense it is impossible to suppose that the rule has not become part of the election law of Canada. It was formally declared to be the rule of this court in 1884 by three judges of the court and it should be noted in passing that the appeal to this court is given upon such questions with the object of providing a standard and attaining uniformity in decision. Meanwhile, the "Elections Act" has been consolidated and re-enacted many times; and it is a legitimate presumption of fact that the pronouncements of this court on such a point are not unknown to members of Parliament and others responsible for the form of such legislation; and no amendment of the relevant enactments justifies a suggestion that Parliament did not accept the rule in the Bothwell Case[17] as a rule conforming to the spirit and intention of the law.

The force of these considerations is not, in my opinion, affected by the fact that circumstances are disclosed in this record which might have affected the minds of Ritchie C. J. and his colleagues and led them to another view had they been before this court in the Bothwell Case17. Whatever one may think of the reasoning upon which the rule is based the rule itself is, I think, too firmly established to yield to anything less cogent than a statutory amendment.

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My conclusion therefore is that the requirement of the statute providing for the marking of the ballot with a cross is obligatory in the sense indicated by the judgments in the Bothwell Case[18], in the sense, namely, that the mark made by the voter must at least be one evidencing an intention to comply with the statutory direction by making a cross; and that in this sense the requirement is imperative—nullity being the consequence of non-compliance.

The other points of substance involved, I do not discuss—a decision upon this point adversely to the appellant involving, as I have already said, the failure of the appeal.

The appellant's contention remains that the only objections open on the recount were the objections presented on the counting of the ballots by the deputy returning officers at the conclusion of the poll. This contention, I think, also fails, for a reason which may adequately be expressed in half a dozen words. The recount is, in my judgment, as its name implies, intended to be a re-examination of all the "ballot papers returned by the several deputy returning officers" and in this the judge is to be guided by

the directions of the Act set forth for the deputy returning officers.

The appeal should be dismissed with costs.

Anglin J.—The determination of this appeal depends upon whether the provision of s.s. 3 of s. 62 of the "Dominion Elections Act" (10-11 Geo. V. c. 46), that

the voter shall * * * mark his ballot by making a cross with a black lead pencil,

is absolute and imperative, or merely directory.

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Twenty-nine ballots, disallowed by the Election Court, are marked with a single stroke (1) instead of with a cross (X) as the statute prescribes. Of these 20 are marked for the appellant and 9 for the respondent.

Twenty-three ballots, likewise disallowed, are marked with pen-and-ink. Of these 18 are marked for the appellant and 5 for the respondent.

Nine ballots, also disallowed, are marked with coloured pencils. Of these 5 are marked for the appellant and 4 for the respondent.

Counsel for the appellant suggests no distinction between the nine coloured pencil and the twenty-three pen-and-ink marked ballots.

The majority against the appellant as found by the Election Court being seventeen, unless all the ballots now in question are held to be good, counsel for the appellant very properly concedes that his client's claim to the parliamentary seat cannot succeed.

Apart entirely from authority, I should be of the opinion that the provision of s. 62 quoted is absolute and imperative—and equally so in both its prescriptions—that a ballot not marked with a cross, or, at least with something that can be regarded as an honest attempt to make a cross, or a ballot marked in ink or in lead pencil of any other colour than black does not fulfil its requirements and must be rejected. In this view I am confirmed by the judgments of this Court in Jenkins v. Brecken[19], where, affirming the judgment of Peters J., a ballot marked with an /?/ instead of a cross was disallowed and in the Bothwell Election Case [20] where Ritchie, C. J., Fournier, Henry and Gwynne, JJ. concurring, held that

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if the mark indicated no design of complying with the law, but on the contrary, a clear intention not to mark with a cross as the law directs * * * such non-compliance with the law * * * renders the ballot null.

The soundness of the added remark of the learned Chief Justice,

the irresistible presumption from such a plain and wilful departure from the terms of the statute being that it is so marked for a sinister purpose,

I regard as at least questionable. But that observation was unnecessary to the clear and precise decision that the statutory prescription is absolute and imperative (which therefore remains unaffected by it) and does not appear to have had the concurrence of the other members of the court who adopted the Chief Justice's conclusion. The rule thus formulated by this court should, in my opinion, be accepted as decisive of the character of the prescription of s. 62 (3) as to the marking of ballots and as to what is essential in order to fulfil the requirements of a cross.

The enacting provision of the English Ballot Act (s. 2) of 1872, merely speaks of

the voter having secretly marked his vote on the paper.

By rule 25 in the annexed schedule of rules he is simply required to "mark his paper". It is only in the "Directions for the Guidance of Voters" in the schedule of forms that there is any statement as to the kind of mark to be used by the elector in marking his ballot. The significance of this, notwithstanding the provision s. 28 that the schedules shall be construed as part of the Act, and the distinction between the effect of enactments as to the rules and forms which are directory only, and that of the absolute enactments of the sections in the body of the Act, is pointed out by Lord Coleridge C. J. in Woodward v. Sarsons[21].

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English decisions, therefore, as to the form and method of marking ballots are scarcely applicable under our more rigorous statute. In England the tendency of the decisions has been in the direction of treating as sufficient any mark, in whatever form, from which it can be deduced that the elector intended to vote for a certain candidate. In Canada, on the other hand, the tendency has been to make more rigid and precise the statutory prescriptions as to the form and method of marking the ballot.

Section 66 (2) is, in my opinion, not so exhaustive of the grounds on which a deputy returning officer should reject ballots as to require him to count a ballot not marked in accordance with the imperative requirements of s. 62 (3), unless, indeed, we should consider it to be the manifest intention of the legislature that any marking not in conformity therewith should be deemed

a writing or mark by which the voter can be identified

within the meaning of the clause c. of s.s. 2 of s. 66.

I am unable to accede to the view urged by Mr. Sinclair that the judge on a scrutiny, or the Election Court on a petition where the seat is claimed, is restricted to the consideration of such objections to ballots as were taken before the deputy returning officers and dealt with by them under s.ss. 2-3 of s. 66. By s. 70 the judge is required to recount all the votes (s.s. 3) according to the directions set forth in the Act for the guidance of deputy returning officers at the close of the poll (s. s. 4). His duty is not confined to reconsideration of such ballots as were objected to and passed on by the several deputy returning officers. It is a recount that the statute provides for— not merely an appeal from the decisions of the deputy returning officers.

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I am for the foregoing reasons of the opinion that this appeal fails and must be dismissed with costs.

Brodeur J.—I concur with Mr. Justice Anglin.

Mignault J.—On the opening of the argument, the learned counsel for the appellant informed the court that the rejected ballots could be conveniently placed in three classes, to wit:

1. 23 ballots marked in ink, 18 being for the appellant and 5 for the respondent;

2. 9 ballots marked with a coloured pencil, 5 for the appellant and 4 for the respondent;

3. 29 ballots marked with the figure "1", 20 for the appellant and 9 for the respondent.

Besides these ballots, there is the case of Mrs. Baird who testified that she had voted twice, each time for the respondent, and the appellant applies to have one of these votes deducted from the respondents' total.

The majority against the appellant, according to the judgment appealed from, was 17, so that unless he succeeds as to classes 1 and 3 above mentioned, he will be unable to overcome this majority.

This will simplify my consideration of the case, for if the appellant cannot have the ballots marked "1" counted, his appeal fails.

After due consideration I think we are bound by authority to reject these ballots. In the Bothwell Case[22] Chief Justice Ritchie, while disclaiming any intention to lay down a hard and fast rule, said at p. 696:

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Whenever the mark evidences an attempt or intention to make a cross, though the cross may be in some respects imperfect, it should be counted, unless, from the peculiarity of the mark made, it can be reasonably inferred that there was not an honest design simply to make a cross, but there was also an intention so to mark the paper that it could be identified in which case the ballot should, in my opinion, be rejected. But, if the mark made indicates no design of complying with the law, but, on the contrary, a clear intent not to mark with a cross as the law directs, as for instance, by making a straight line or a round 0, then such non-compliance with the law, in my opinion, renders the ballot null.

Fournier, Henry and Gwynne, JJ. concurred with the Chief Justice in formulating this rule which is therefore binding on us. I must consequently hold that the court below rightly rejected these ballots. In so deciding I follow the decision of this court in the Bothwell Case[23] and do not think it necessary to pass upon the contentions of the parties as to the construction of sections 62 and 66 of the "Dominion Elections Act."

Mr. Geoffrion, for the appellant, said that in the City of Calgary there is a system of proportional representation, whereby voters indicate their first or second preference in figures, such as "1" and "2" and are told not to mark the ballot with a cross. This no doubt was a very unfortunate circumstance, but the law is the same for all the Dominion and no local circumstances can suffice to set aside so plain a requirement as the marking of ballots with a cross. I think therefore that these ballots were rightly rejected.

In view of the rejection of the ballots marked with the figure "1", the appellant cannot succeed and I do not think it necessary to pass on the validity of the ballots marked with a pen instead of a black lead pencil or on the validity of the other ballots. As I understand it, there are no decisions of this court dealing with the validity of ballots marked with a pen and ink.

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The result is that the appellant, although a considerable majority of those who marked the disputed ballots evidenced the intention of voting for him, loses the election as well as the appeal he has entered against the decision of the election court. At this late day, it is strange that citizens of this country should not be familiar with the manner of voting. And however regrettable it may be that the will of the majority ' should not prevail, still that will must be expressed in the required manner. Otherwise it is of no effect.

The appeal must be dismissed with costs.

Appeal dismissed with costs.