Under the provisions of M.S.A. 179.16, the conciliator ordered an election to determine whether the employes wished to be represented by the AFL or the CIO.
A balloting was conducted December 9, 1947. This balloting resulted in 400 votes cast, one of which was conceded by all parties to be void. Of the remaining 399 votes, 199 were for the CIO and 200 or 199 votes for the AFL, depending upon whether the one ballot here in controversy was rightly ruled out as void.
Section 179.16, entitled "Representatives for Collective Bargaining," subd. 2, provides that the conciliator "may take a secret ballot."
What was the legislative intent in providing for a "secret ballot" of employes, once such a method of investigation had been chosen by the conciliator? The provisions appearing in subd. 2 were in the act when it was first passed. L. 1939, c. 440, § 16. Prior to that date, no decisions of the National Labor Relations Board had defined a "secret ballot" under the provisions of Sec. 9(c) of the National Labor Relations Act (49 Stat. 449, as amended), from which provisions of the Minnesota act may have been adopted. See, 24 Minn. L.Rev. 217.226 (1939-1940). *Page 353
The few cases decided by the National Labor Relations Board dealing with contested elections, which had been publishedprior to the adoption of the Minnesota provisions, relate solely to the discretion of the National Labor Relations Board in rejecting spoiled or void ballots in determining the totalnumber of votes cast in the N.L.R.B. election. In re Sorg Paper Co. (1938) 9 N.L.R.B. 136, 3 LRRM 249, 2 Id. 516, decided nothing about the manner of marking ballots. In re Calumet Steel Div. of Borg-Warner Corp. (1938) 7 N.L.R.B. 340, 2 LRRM 279, simply held that where two out of 431 ballots reported cast were spoiled or void only 429 ballots would be counted as cast. The issue on the hearing in that case was to determine questions raised as to eligibility of certain employes to vote. There was no question concerning the manner in which the ballot was marked. Cf. Matter of Interlake Iron Corp. (1938) 4 N.L.R.B. 55, 1A, LRRM 375.
In re International Nickel Co. Inc. (1939) 17 N.L.R.B. 458, 460, 5 LRRM 325, relied upon by defendant United Public Workers, was decided in November 1939 after the adoption of the Minnesota act. That case merely contains the statement that the disputed ballots were not cast in the manner required by the rules of the election, —
"although the election rules were prominently printed upon each ballot. These ballots were capable of identification and should not be counted. Neither should blank, spoiled, or void ballots be counted in determining the total number of votes cast in the election."
Nothing in that opinion shows the manner in which the votes were marked. Therefore, it can have no weight on the question here presented. Both the Burlington Mills Corp. case (1944) 56 N.L.R.B. 365. 14 LRRM 148, and In re Colonial Sand Stone Co. Inc. (1942) (N.Y. L. R. B.) 10 LRRM 297, cited by defendant United Public Workers, were decided after the adoption of the Minnesota act. The Burlington Mills Corp. case contains no statement concerning the nature of the contest upon which the board was to pass. The Colonial Sand Stone Co. case is distinguishable to the extent that *Page 354 a marking with a "V" in the square, rather than with an "X," required by the board's rule, was an unusual mark which showed the voter's intention in an uncertain manner, as well as being a peculiar mark of identification.
In ascertaining the intent of the legislature in providing for a secret ballot in the Minnesota labor relations act, we must look to the rules of law governing unusual markings on a ballot, as construed by this court2 prior to the adoption of the statute, since at that time those were the only rules the legislature was aware of. If the legislature had intended that other rules should govern the "secret ballot" or that the conciliator was to be endowed with arbitrary power to reject ballots without review in the courts, the legislature would, no doubt, have said so in unmistakable language. *Page 355
In Truelsen v. Hugo, 81 Minn. 73, 83 N.W. 500, this court construed G. S. 1894, § 141, which read:
"In the counting of ballots cast at any election, all ballots shall be counted for the persons for whom they were intended, so far as such intent can be clearly ascertained from the ballot itself."
The court considered the question of the manner in which the intention of a voter must be expressed in order that his vote may be counted. The plaintiff contended that every vote should be counted if the voter's intent could be clearly ascertained from the face of the ballot, regardless of the method or manner in which the ballot was marked. Opposite the name of one candidate in the space provided for the voting mark appeared the word "No," following which there was a cross mark. Opposite the name of the contestant was the word "Yes," followed by a cross. The court said that the voter's intention was very clear. He intended to make sure of his vote for the contestant.3
The distinction between a mark placed on the ballot for the purpose of identification and marks used by a voter in such manner that they were apparently made in an attempt to indicate the *Page 356 voter's choice of a candidate or of measures was carefully expounded in 1929 in the case of In re Election Contest Itasca County, 178 Minn. 578, 228 N.W. 155. There, the court pointed out that marks made by the voter upon ballots in a place or (178 Minn. 584, 228 N.W. 157) "in such manner that it can reasonably be seen or inferred that they were made in an attempt to indicate his choice" or vote for candidates or measures were held not to be identifying marks. A comprehensive opinion in that case examined similar rules in other jurisdictions outlining situations in which marks had been placed by voters on the backs of ballots — initials, signatures, or other facts from which the court could draw reasonable inferences that they had been made intentionally for identification. While the court stated that the inferences to be drawn from the whole ballot as to whether a mark is an identifying mark and the ballot therefore void was a question of fact for the district court, the opinion sets out specific rules of law establishing the limits within which the court may draw inferences as to the validity of the ballots in question and the principles which must guide the finder of fact in reaching conclusions from the balloting. Among these rules is the well-established requirement that if it can be reasonably seen or inferred that the marks were made in an attempt toindicate the choice or vote for the candidates or measures tobe voted upon the marks should be held not to be identifying marks. See, Bloedel v. Cromwell, 104 Minn. 487, 116 N.W. 947 (signed ballot). In Elwell v. Comstock, 99 Minn. 261, 270,109 N.W. 113, 698, 702, 7 L.R.A.(N.S.) 621, 9 Ann. Cas. 270,4 this court, speaking through Mr. Justice Brown, stated the rule to be that "Any mark placed upon a ballot, therefore, by which the voter may be identified by any person, vitiates the ballot." In the syllabus by the court, the rule laid down in the opinion was interpreted as follows: *Page 357
"A ballot cast at an election, which is so marked by the elector that his identity is thereby disclosed to any personother than the voter, is void. (Italics supplied.)
The same distinction is clearly established in Aura v. Brandt, 211 Minn. 281, 283, 286, 1 N.W.2d 381, 384-385,386. In that case, the election was held to fill the offices of a village recorder and one trustee. One question related to the counting of certain ballots claimed to have distinguishing marks upon them. Mr. Justice Peterson, speaking for the court in interpreting the rules previously established by this court, said (211 Minn. 283, 286, 1 N.W. [2d] 384, 385):
"* * * A distinguishing mark on a ballot is one made by a voter which is not an honest effort to indicate his choice either of candidates or propositions and which is effective to distinguish his ballot. There must be some wrongful purpose onthe part of the voter to identify his ballot. Conversely, a mark placed on a ballot in an honest effort of the voter to indicate his choice and not to identify his ballot is not a distinguishing mark within the rule. Generally, it may be said that the distinction is between honesty and dishonesty in voting. Consequently every mark by which a ballot can beidentified does not invalidate it. For example, where only one voter in a precinct votes by means of a sticker or by writing in the name of the candidate of his choice, the ballot can be identified, but it cannot be legally rejected because the voter was but exercising his right to vote in a manner authorized by law.
* * * * *
"* * * if the mark is made so as not to identify the ballot, but to exercise the right to vote in good faith, it does not constitute a distinguishing mark." (Italics supplied.)
In Pye v. Hanzel, 200 Minn. 135, 138, 273 N.W. 611, 613, the statute provided that a uniform and indistinguishable mark be used by the voter to indicate his choice. The statute was construed to require the voter to mark his vote by an "X" mark, but if the "X" mark was not used the ballot could be counted if the voter uniformly *Page 358 used a mark other than "X" in marking his ballot. The court said, speaking through Mr. Justice Peterson (200 Minn. 138,273 N.W. 613):
"* * * The intent of the voter must be shown and indicated as required by the statute. If there has been substantial compliance with the statute, the ballot will be counted, otherwise not. Judges of election and courts are to ascertainthe intention of the voter by following the rules prescribed bylaw. Bloedel v. Cromwell, 104 Minn. 487, 116 N.W. 947; Elwell v. Comstock, 99 Minn. 261, 109 N.W. 113, 698,7 L.R.A.(N.S.) 621, 9 Ann. Cas. 270." (Italics supplied.)
Of course, the Bloedel case and Aura v. Brandt, 211 Minn. 281,1 N.W.2d 381,5 are clearly distinguishable from the situation in this case, because specific statutory requirements for valid markings of the ballot were involved; but even as to the construction of such statutes, which were express in denying recognition to a ballot if more than one mark was used, the intent of the voter governed. In the Bloedel case, the invalidated ballot was signed or marked with the name of the voter. It might be pointed out that, because of the explicit statutes, Pye v. Hanzel and Aura v. Brandt go much further than Elwell v. Comstock in considering the slightest deviation from the rules of law governing elections as a basis of invalidating the contested ballot. There are no statutes involved here other than the requirement of a "secret ballot." Therefore, we should take the view that general principles announced in the cases prior to the enactment of the law control the discretion of the labor conciliator.
In the case at bar, where the voter marked "AFL" in the square opposite "I WANT AMERICAN FEDERATION OF STATE, COUNTY, MUNICIPAL EMPL., LOCAL #9, AFL, TO REPRESENT ME FOR COLLECTIVE *Page 359 BARGAINING PURPOSES," and "No" after "I WANT PUBLIC WORKERS LOCAL 77, CIO, TO REPRESENT ME FOR COLLECTIVE BARGAINING PURPOSES," the intent of the voting employe was perfectly plain. That much is conceded by defendants. Under such circumstances and in view of the many decisions in this state which emphasize the importance of determining the intent of the voter from the face of the ballot and from the circumstances surrounding the election, it is clear that the legislature, in providing for a "secret ballot" in § 179.16 meant to include the construction given by our courts to that phrase as known in the political election law prior to adoption of the Minnesota labor relations act. When the conciliator decided to resort to a secret ballot, the act did not endow him with a broader discretion than that set up by the rules which the courts had adopted.6 Certainly, we must give the legislature credit for the intent to provide a fair election when it authorized the conciliator to resort to the secret ballot. It cannot be assumed that it intended to vest in the conciliator a discretion broad enough to thwart the manifest will of the voters at the election. Thus, there was no room here for exercise of discretion, where the intent of the voter was clear from the face of the ballot and the circumstances shown in the record created no contrary inference as to secrecy.
There is not a scintilla of evidence or the shadow of a circumstance which would justify a finding that the ballot under consideration was marked for any other purpose than to indicate the voter's choice — not to identify it as his. The mark upon the ballot must be such as to disclose the identity of the voter as distinguished from the nonuniformity of the ballot to a person other than the voter. Elwell v. Comstock,99 Minn. 261, 270, 109 N.W. 113, 698, 702, 7 L.R.A.(N.S.) 621,9 Ann. Cas. 270. See, Burlington Mills Corp. 56 N.L.R.B. 365, 368; Semi-Steel Casting Co. v. N.L.R.B. *Page 360 160 F.2d 388-392. This is a common-sense rule and one in furtherance of a fair count. It protects the job and union security of the voter. Any other rule would afford an excuse for throwing out ballots marked with the slightest deviation from the usual form of the "X" mark and offer too much of an opportunity for a prejudicial count and render the provision for a secret ballot nugatory.
All the evidence upon the hearing by the conciliator related to the eligibility of certain persons to vote. It was wholly immaterial to the issue of purpose or intent in marking the ballot. The fact that the directions for marking the ballot said, "MARK ONLY ONE PLACE — DO NOT SIGN BALLOT," is immaterial where the intent of the voter is clearly indicated, if the secrecy of the election is not impaired by identifying marks such as signatures, initials, or other special markings in unusual places. The direction on the ballot to "MARK ONLY ONE PLACE" must be considered in its normal meaning as a direction to the voter not to vote twice, that is, not to indicate two different choices. Here, the ballot as marked clearly indicated only one choice, which was not an identifying mark. Therefore, where the conciliator followed an improper theory of law in ignoring the intent of the voter, which was clearly expressed on the markings of his ballot, the conciliator's order dismissing the petition of the AFL union was error. The case should be remanded to the district court for Ramsey county, and the order of that court dismissing the writ of certiorari should be reversed.
2 Since the issue is the intent of our legislature, decisions of the courts of other jurisdictions construing different statutes governing political elections are not in point. This is especially true where the decisions are based upon statutes which specify in exact detail the manner of marking ballots and have no provision regarding the intent of the voter. See, e.g., Evans v. Reiser (1931) 78 Utah 253, 261-262, 2 P.2d 615,619, where the statute (Comp. Laws of Utah 1917) required the cross mark to be two straight lines as nearly equal in length and crossing each other as near the center of each line as practicable (§ 2215), and required (§ 2217):
"When only one officer for any office is to be elected, if the voter marks in squares opposite the name of more than one candidate therefor; or if, having marked the circle of one ticket, he shall mark the name of a candidate on another ticket without drawing a line through the name of the corresponding candidate upon the ticket beneath the marked circle, such voteshall not be counted for such office." (Italics supplied.)
See, also, Arizona Civil Code, §§ 2929, 2932, 2940, 2941, 2943 (2, 3), and 2955, construed in Hunt v. Campbell (1917)19 Ariz. 254, 279-280, 169 P. 596, 606; Iowa Code 1931, § 815 (Iowa Statutes Ann. 1946, § 49.98), which required that "ballots shall be counted according to the markings thereon, respectively, as provided in sections * * *, and not otherwise" — the basis of Donlan v. Cooke (1931) 212 Iowa 771,237 N.W. 496; N.Y. Election Law, § 219, McKinney's Consol. Laws of New York Ann. c. 17, in effect when In re O'Brien (1917) 180 App. Div. 853,168 N.Y. S. 71, was decided. These statutes are unlike our own political election statutes and wholly different from § 179.16.
3 Nothing in Murray v. Floyd (1943) 216 Minn. 69,11 N.W.2d 780, overrules this part of Truelsen v. Hugo. The Murray case had not been decided when the legislature was considering the meaning of "secret ballot" as used in § 179.16. Moreover, the Murray case overruled only that part of the Truelsen case which sustained an indecent remark or drawing on a ballot as showing the intent of the voter. See, 216 Minn. at pp. 72-74,11 N.W.2d at pp. 783-784. Truelsen v. Hugo considered a number of ballots. Exhibit 85 contained a vulgar expression after the name of the contestant. This ballot was sustained in the Truelsen case, and this is the part of that case that was overruled by the Murray case. Such a ballot is not involved here. Exhibit 6 in the Truelsen case was marked in the same manner as the contested ballot in the instant case and was held valid. The holding in regard to this ballot was not overruled by the Murray case. Any statement to the contrary is necessarily based upon a superficial examination of the, Murray case as well as of the Truelsen case. Such a statement tends to confuse rather than clarify any issue in the case at bar. Certainly the statute, which is now M.S.A. 206.50, governing the intent of the voter, is still the law.
4 The Elwell case is nowhere mentioned or overruled in Murray v. Floyd, 216 Minn. 69, 11 N.W.2d 780, supra, nor is it cited in the whole of Vol. 216 Minnesota Reports. The only context in which cases were being overruled in the Murray case, namely, indecent remarks or drawings on the ballot, did not arise in the Elwell case, nor are we concerned with such remarks in the case at bar.
5 The ease of Frajola v. Zanna, 193 Minn. 48, 257 N.W. 660, cited elsewhere but not in this dissent because it is not in point, deals only with remarks of an improper sort or imperfect cross marks. The court in that opinion does not discuss the intention of the voter.
6 Cf. Warehouse Employees Union v. Forman Ford Co. 220 Minn. 34,18 N.W.2d 767. The effect of that decision is not changed by the construction given here to the words "secret ballot," since that case decided only that the conciliator's discretion was whether (a) to have the ballot, or (b) to use some other suitable method of determining representation.