76 P. 463 | Ariz. | 1904
The appellant and appellee were rival candidates for the office of city assessor and tax-coHector of the city of Prescott. As a result of the election, the appellant was declared to have received six more votes than the appeHee. The appellee having instituted statutory proceedings in the court below to contest the election, the court, on a recount of the ballots, found that the appellee had received ten more votes than the appellant, and entered judgment declaring that the appellee had been elected to the office. Upon the trial it appeared that certain provisions of the statute respecting the method of preserving the ballots had not been complied
Our statutes (Rev. Stats. Ariz. 1901, tit. 20, chap. 10) provide in detail the various steps to be taken in canvassing, returning, and preserving the votes given at an election. Among other provisions are the following: The tickets, as soon as read, must be strung on a string by one of the judges, and must not thereafter be examined by any person, but must, as soon as all are counted, be carefully sealed in a strong envelope, each member of the board writing his name across the seal. The package so sealed must, before the election board adjourns, be delivered to one of its members, to be determined by lot or otherwise, -who must, without delay, deliver such package to the clerk of the board of supervisors at his office, and upon receipt of the package the clerk must deposit it in the safe of the county treasurer, who must keep it unopened and unaltered for six months, after which time, if there is no contest commenced, he must burn the package without opening or examining the contents. The evidence adduced at the trial showed that the election was held on January 6, 1903, at a building known as Odd Fellows’ Hall. Immediately after the close of the balloting, the election board, composed of the city council of Prescott, took the ballot-box to the city hall, and there the ballots were counted, two of the members of the council calling off the ballots and handing them to the mayor, who replaced them in the ballot-box. The box was a steel or iron box having a slit at the top, with a lid which, when the box was locked, covered the only opening in the box completely. The box had two locks, with one key to each lock. At the close of the count the ballots were placed in the box folded, and the box locked and the opening completely closed. The ballots were not strung nor sealed in an envelope, nor were the names of the judges of election indorsed upon the box, or otherwise. The mayor then took the key to one lock, and one of the councilmen the key to the other lock, and these keys remained in their possession and upon their persons until produced in court at the time of the hearing of the contest. After being locked,
Where an election is contested, our statutes provide for the opening by the tribunal by which the contest is proceeding of the package containing the ballots cast at the election, to the end that evidence may be had of its contents. Rev. Stats. 1901, par. 2396. Where the ballots are preserved in strict accordance with the statutory requirements, they are admissible in evidence' without further proof; and, when so admitted, furnish the primary and controlling evidence of the number of votes cast for the respective candidates, and are sufficient in themselves, without further evidence, to contradict and overthrow the returns of the election officers or canvassing board. Schneider v. Bray, 22 Nev. 272, 39 Pac.
We find authority in numerous cases for the views we have expressed, among others the following: Hughes v. Holman, 23 Or. 481, 32 Pac. 298; Mallett v. Plumb, 60 Conn. 352, 22 Atl. 772; People v. Livingston, 79 N. Y. 279; People v. Higgins, 3 Mich. 233, 61 Am. Dec. 491; Coglan v. Beard, 67 Cal. 303, 7 Pac. 738; Tebbe v. Smith, 108 Cal. 101, 41 Pac. 454, 29 L. R. A. 673, 49 Am. St. Rep. 68; Henderson v. Albright, 12 Tex. Civ. App. 368, 34 S. W. 992; O’Gorman v. Richter, 31 Minn. 25, 16 N. W. 416; Dorey v. Lynn, 31 Kan. 758, 3 Pac. 557; Bowers v. Smith, 111 Mo. 45, 33 Am. St. Rep. 491, 16 L. R. A. 754, 20 S. W. 101. In the case at bar the evidence fairly shows that there was no reasonable probability that the ballots had been changed or tampered with, and that they were before the court in their integrity; and, indeed, that such was the fact was practically admitted by counsel for the contestee in the lower court, the claim being there made, and' here urged, that as there had been opportunity given for such tampering, and such opportunity was afforded by the failure of the election officers to comply with the requirements of'the statute, such opportunity and such failure being shown, the ballots were thereby rendered inadmissible in evidence. With this view we do not agree. Under the evidence in the case, there being nothing tending to show that any of the ballots had been actually altered or changed after being deposited by the voter, and the circumstances surrounding the keeping of the ballots being of such a nature as to warrant the conclusion that there was no reasonable probability of there having been any alteration, but only a possible 'opportunity for such alteration, we think there was no other course open for the trial court except to receive the ballots in evidence.
The appellant also assigns as error the refusal of the trial court to strike out the evidence of the ballots, on the further ground that the ballots did not purport to be official ballots. The ballots are not before us, and they were expressly excluded from the bill of exceptions, as appears by the certificate thereto attached,- and there is nothing in the record from which we can determine whether the ballots were or were
The judgment of the district court is affirmed.
Davis, J., and Doan, J., concur.