35 Neb. 563 | Neb. | 1892
Contestant alleges that he is an elector of Dakota co.unty, competent to bring the action; that James P. Twohig is the duly elected, qualified, and acting county clerk of Dakota county; that fm. Taylor, M. Beacon, and J. O. Fisher are duly elected, qualified, and acting board of commissioners of said county; that E. B. Wilbur, E. L. Wilbur, and C. D. Smiley are residents and electors of said county, and as such, with certain other electors, to the number of th'irtyfive, signed a petition which was filed on the 13th of August, 1891, in the office of the county clerk of Dakota county, and which asked the board of commissioners to submit to the voters of Dakota county the question of township organization, at the general election held on the 3d day of November, 1891; that this question was submitted and voted on at said election, and that the highest number of votes cast at said election, for any office, was fifteen hundred, and on the question of township organization there was cast for township organization 826, and against township organization 154, and that 620 of the electors voting at said election did not vote on said question; that the canvass of votes showed an apparent majority of 52 for township organization and the same was declared to be carried.
As the grounds of the contest, the contestant alleges that the election is illegal and void — first, because the act of
In their answer the defendants allege: First, that the court has no jurisdiction to try and determine the questions raised by the petition. Second, that there is a defect of parties defendant in this cause. Third, denying that Albert, the contestant, is an elector of Dakota county, and competent to contest in this cause. There are a number of admissions that need not be noticed.
The cause was referred to a referee to take the testimony and find the facts. The referee took the testimony and made his report as follows :
“ I find that at the general election held on November 3, A. D. 1891, within Dakota county, Nebraska, the question of township organization was submitted to the electors of said county, and that the total vote on said question as returned by the several election boards of the county and as canvassed and declared by the canvassing board of said county, is as follows, to-wit:
For township organization................................. 826
Against township organization............................. 154
Leaving an apparent majority for township organization of........................................................ 672
“ I further find that no return was made as to any double ballots being cast.
“Second — I find that on the recount of the ballots of the several precincts of said Dakota county, Nebraska, by me as refei’ee, of the votes cast in said county at the general
For township organization............................... '697
Against township organization........................... 162
Ballots voted with two crosses, both for and-against township organization................................... 136
Ballots that were voted blank, neither for nor against township organization......................... 497
Ballots not counted......................................... 5
Total vote of county....................................... 1497
“Third — I find and report that the ballots of Covington precinct were in a ballot box which had been opened for the taking out of the poll book; and that the ballots of Omadi precinct were in a paper sack, a common grocery sack, and that the same were unsealed when they were given to me to recount; and. that the ballots of St. John’s precinct were opened and unsealed when they were given to me to recount; and'that the ballots of Hubbard precinct were tied in a compact, almost square bunch with a string through the center of them, and they were well sealed up in an envelope provided for that purpose, when they came into my hands for the purpose of the recount; and that the ballots of Dakota precinct were in a large package and apparently attempted to be sealed, but not much sealed when they came into my hands for the purpose of the recount;- and that the ballots of Summit, Pigeon Creek, and Emerson precincts were apparently sealed up properly at the time they came into my hands for the purpose of the recount. I further find that the ballots of all eight precincts of Dakota county were on strings.
“Fourth — I find that the testimony taken by me, as hereto attached and herewith reported, of parts or all of the several members of the election boards of Covington, Omadi, St. John’s, and Hubbard precincts, tends to sustain and affirm the returns as made by them to the canvassing
“Fifth — I find that the testimony taken by me, as hereto attached' and herewith reported; of parties other than the members of the several election boards mentioned in'the 'fourth finding'herein; tends to establish the fact that said ballots were'in the'Condition, at-the time I received them for the purpose of the recount herein, that they were in when they'were'first deposited in the vault of the county clerk of said Dakota county, Nebraska, after the official canvass of the vote of said several precincts was completed.
' “Sixth — I find that the vault of the county clerk- oí Dakota county, Nebraska, wherein the ballots cast at the general - election held in said county on the 3d day of November, 1891, were kept, is very’unsafe and -insecure, and that said vault is not kept locked • either by day or night, and that said ballots were readily accessible to others than their proper custodians.” -
It will thus be seen that the ballots from some of the precincts were not sealed up when sent to the county clerk and that they were not kept by him in a place free’from áccess of persons generally. The court below refused,, finder these circumstances, to recount the ballots.- Did-it err ?
The first objection of the defendant is to the jurisdiction of the court in case of contest of election. In Burke v. Perry, 26 Neb., 414, it was held, in effect, that a contest of election for county seat was an action and was properly brought in the district court. We'see no reason to change our views in that regard and therefore hold that the court below had jurisdiction and that the case is properly here.
■ Second — As between the ballots cast at an election, and á canvass thereof by the election officers, the former are the primary and controlling evidence; but in order that they
In the case from California the court uses this language: “Intrinsically considered, it must be conceded that the ballots themselves are more reliable, and therefore better evidence, than a mere summary from them. Into the latter errors may find their way, but with the former this cannot happen; The relation between the two is at least analogous to that of primary and secondary evidence.” A canvass is but a count of the ballots, a convenient and expeditious method of determining the choice of the people as disclosed by the ballots, and therefore but secondary evidence. The necessities of the case make it prima faeie evidence, but unless expressly so declared by statute it is never conclusive. (State v. Marston, 6 Kan., 524; Russell v. State, 11 Id., 308.)
As between, therefore, the ballots themselves and a canvass of the ballots, the ballots are controlling. This is, of course, upon the supposition that we have before us the very ballots that were cast by the voters. And this presents the difficult question in this case. For, as under the 'manner of our elections, there is nothing to distinguish one ballot from another of those' cast by the members of the same party, as no file-mark or other mark is made in the canvass or otherwise after the election upon any ballot, by which its actual use at such election may thereafter be established, and as at any election there is always a large surplus of unused ballots, it is evident that if opportunity were offered ballots might be withdrawn from the box and
The question was again before the supreme court of that state in Dorey v. Lynn, 31 Kan., 758, and .it was held, u Where an election is held in a certain ward of a city for the election of councilmen, and the judges and clerks of the election count the ballots and place them in a sealed envelope, and then place the envelope with the ballots in the ballot box, and seal the ballot box and deliver the same to the city clerk, in whose custody they remain until the trial is had in the case, and this is shown by testimony of witnesses beyond all reasonable doubt, held, that the ballots are sufficiently identified and are controlling, although the city council, while acting as a board of canvassers did, in the presence of the city clerk, illegally open the envelope Containing the ballots and count them.”
These cases, in our view, state the law correctly. In the case at bar the proof fails to show that ballots from three of the precincts were preserved in the manner and by the officers prescribed by the statute.
Third — But it is claimed on behalf of the plaintiff that the several acts providing for township organization are unconstitutional and therefore void. The legislature of 1877 passed an act providing for township organization in certain cases. This act was declared invalid in Jones v. Co. Com. of Lancaster Co., 6 Neb., 474, upon the ground that the title of the act was too restricted for the subject-matter of the act.
The revenue law of 1879 was amended so as to provide for the collection and disbursement of taxes in case of the adoption by any county of township organization. While it is true that there was no statute in existence at that time that authorized township organization, yet the provision above referred to in no manner affected county organization or the collection of the revenue, and could only become effective upon the adoption by any county of township organization.
In 1883 an act was passed to provide -for township organization, and thac, with the amendments thereto, constitute the law upon that subject at the present time. It
The question of repeal by implication has been presented to this court in several cases and it has been uniformly held that a statute would not be repealed by implication unless the repugnancy between the new statute and the old is plain and unavoidable. (White v. Lincoln, 5 Neb., 505; State v. McCall, 9 Id., 203; In re Hall, 10 Id., 537; Lawson v. Gibson, 18 Id., 137; State v. Babcock, 21 Id., 599.) The statute of 1891 does not repeal the former act by implication.
Fourth — It is contended that section 7 of the election law as amended in 1891 repeals the provision for election of supervisors. In our view, however, the act in question merely provides for future elections and does not change the law in relation to election for township officers on temporary organization. There is no error in the record ánd the judgment is
Affirmed.