Black v. Pate

130 Ala. 514 | Ala. | 1900

SHARPE, J.

Contests of election being unauthorized except by statute, any material departure from the statutory mode of instituting and conducting such contests is likewise unauthorized. This is especially true in inspect of the limitation of time contained in the statute regulating contests for the office of sheriff which provides: “The person contesting must file in the office of the judge of probate of the county in which the election was held, within fifteen days after the result of the election has been declared, a statement in writing of the grounds of contest verified by affidavit.” — Code, § 1697. This 'and several other provisions of the statute are made to hasten the termination of such contests in view of the fact that it is important to the public as well as the parties that the office be administered by the person rightfully entitled thereto. Introducing new grounds of contest after, the prescribed time, would naturally be productive of surprise to the eontestee and of disadvantage to him, unless the trial be postponed to enable him to meet such grounds. Hence the legislature, assuming that fifteen days would be sufficient for one acting with diligence to learn of matters invalidating a declaration of election, has made no provision for filing grounds of contest after fifteen days therefrom. The statutes authorizing amendments to pleadings in ordinary suitsi cannot be applied to enlarge the time so expressly limited.

As originally exhibited the present petition preferred only two grounds of contest, first, that illegal voters were given to the contestee which, if taken from him, will reduce the number of legal votes given him below the number of legal votes given to the contestant; second, that the contestee is ineligible. The amendment averring fraud on the part of election officers not having been offered before the lapse of fifteen days from the declaration, was improperly allowed. This amendment resulted in the admission of evidence to sustain its averments which would not have been admissible under the original petition; and since this court cannot known how far the trial court- was thereby influenced in its findings of fact the errors of allowing the amendment and of admitting evidence offered thereunder by the contestant must operate to reverse the judgment. Bank v. Chaffin, 118 Ala. 246; Miller v. Mayor, 124 Ala. 434.

As preventive of bribery, intimidation and other improper influences to which voters might be subjected, our legislature has adopted the policy now widely prevailing elsewhere, of obscuring the identity of persons and measures for which any particular vote is cast at popluar elections. It has declared: “The voting shall be by secret official ballot printed and distributed as provided in this article, and no ballot shall be received or counted in any election except it be provided as herein prescribed.” — Code, § 1605. Among other provisions, which to preserve secrecy, are industriously inserted in the election laws, is, one making criminal tire disclosure by an election officer, who by his office has gained knowledge of a vote, of how any elector may have voted at any election. — Code, § 4681. The maintenance of this policy requires the courts to abstain from inquiry as to the person for whom a legal voter has cast Ms ballot so long as the voter has not waived secrecy.- — McCrary Elec., § 488; 10 Am. & Eng. Ency. Law, 886 et seq. This he may do because the privilege is personal to the voter. Those who violate the law by voting when they have no right to do so, are not so protected; hence their disqualification may be proven as an independent fact and also as a predicate for showing who received the votes. For the latter purpose the fact of illegality must be determined by the court as in other cases where the admission of evidence depends on the establishment of a preliminary fact.—People v. Teague, 106 N. C. 576. Prima facie it is presumed that one who voted was qualified to vote. McCrary on Elec., § 467. The contrary may be shown by circumstantial as well as by 'direct evidence. The appearance of the voter may be testified to as an indication of age, but ‘his declaration made after the election as to his qualifications are not admissible.—Commonwealth v. Woelper, 3 Serg. & R. (Pa.) 29, 8 Am. Dec. 628; Mann.v. Cassidy, 1 Brewst. (Pa.) 11. That persons who voted came into the precinct 'with a contractor, engaged on temporary work, such as building a railroad, and were not seen there after the work was finished, and likewise the fact that they had no other homes in the precinct than temporary camps are circumstances that may be proven as bearing on such voters’ qualifications.—People v. Teague, supra. After proper identification, registration lists and poll lists of an election are admissible as evidence when the contents tend to establish facts material to the issues involved in a contest.—Echols v. State, 56 Ala. 131. They may also be used as memoranda when necessary to refresh the memory of a witness about such facts, where it is shown that the witness made the lists and knows of its correctness.

When it has been established that a voter was not a legal elector, any person having requisite knowledge may testify as to whom he voted for, and the voter may himself be required to testify on that subject unless he claims the other and different privilege of refusing to criminate himself. — McCrary Elec., §§ 492, 494. His declarations and conduct about the time of and recently before casting his ballot may also be such as to shed light on the question and, when so, may be proved.

Referring to counter charges made by the contestee, we are of the opinion that the ballots marked opposite but after contestee’s mame were properly rejected. It may be that slight irregularities in the marking of ballots such as neither create uncertainty as to the voter’s choice nor serve as distinguishing signs, viola-tive of secrecy, would not be cause for discarding ballots, but it is otherwise where the marks used are inappropriate to express the voter’s intention or are so distinct and individual in character as to furnish means of identifying the ballot as that of the particular voter. Ellis v. Glaser, 102 Mich. 396; Parker v. Orr, 158 Ill. 609, 30 L. R. A. 227. The statute provides but one way in which a voter may indicate his choice of candidates which is by placing a cross mark “before the name of the candidate” (Code, § 1622) ; and it authorizes the counting of ballots for those persons only “before whose names a cross mark shall have 'been made.” (Ib. 1638.)

Objection is urged by contestee to counting ballots cast at Boney’s school house for that the court of county commissioners was without power to establish a polling place in the court house beat in view of section 1585 of the Code which declares: “The court house is the place of holding elections in the precinct in which it is situated.” Though this provision is mandatory so far as to make the court house a polling place, we think it was not intended to and does not withhold from the commissioners’ court the power to provide in the court house precinct a polling place in addition to the court house, under section 1582 of the. Code which authorizes it to “establish two places of voting in the same election precinct when it is deemed necessary to the convenience of the voters therein.”

The constitution declares: “A sheriff shall be elected in each county by the qualified electors thereof, who shall hold his office for the term of four years unless sooner removed, and shall be ineligible to such office as his own successor.” — Const.-, Art. V, § 26. Here the person made ineligible is designated by the pronoun “who,” which can have relation to no other than the person previously mentioned, viz., the sheriff elected' by the qualified electors for the term of four years. Witli'out an - unwarranted extension of its terms this provision cannot be made to include or to render ineligible to succeed himself, one ’who has held the sheriff’s office only by appointment for a fractional term.

Original papers not copied into the transcript cannot be looked to in reviewing a cause on appeal.—Pruitt v. McWhorter, 74 Ala. 315; Wright v. Dunklin, 83 Ala. 317. This transcript contains no copies of ballots or tally sheets and, therefore, the package sent with it and said to contain siuch papers has not 'been examined.

Reversed and remanded.