I concur in the result but not in some of the reasoning. There is only one question in this case. The township election ballot had two tickets but only one of them had the name of a candidate for supervisor. Eight voters pasted over this candidate's name a slip containing another candidate's name. No cross was made at the head of the ticket or before the slip-candidate's name. Should these eight votes be counted? *Page 534
The circuit judge held they should not be, because the voters had failed to "indicate with pencil or pen" the candidate they desired to vote for. This is contrary to our previous decisions. When the case of Sawyer v. Hart (1916), 194 Mich. 399, was decided, the election law provided that if an elector desired to vote a straight ticket, he must make a cross in the circle under his party name at the head of the ballot; also if the elector wished to vote for a candidate not on any ticket, he must write or place the name of such candidate on his ticket and make a cross in the circle under the party name. (See 1 Comp. Laws 1915, § 3697 [Act No. 190, § 26, Pub. Acts 1891, as amended by Act No. 214, Pub. Acts 1901].) These provisions were held to be directory only in Sawyer v. Hart, supra. It was held that where the name of only one candidate appeared for any office on the ballot, an elector who pasted the name of a candidate over the name of another, without making a cross at the top of the ballot or before the name on the slip, had cast a legal vote for such candidate. This was in conformity with the holding in Johnson v. Board of Canvassers, 101 Mich. 187 . The present statute is even less mandatory. It provides the elector shall "indicate with pencil or pen;" and if he desires to vote a straight ticket, he may make a cross at the head of his party ticket. 1 Comp. Laws 1929, § 3111, as amended by Act No. 297, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 3111, Stat. Ann. § 6.400). Making a cross with pencil or pen is not mandatory. The plain intention of the voter when ascertained must govern.
Judgment reversed, with costs.
*Page 535NORTH and WIEST, JJ., concurred with BOYLES, J.