Blue v. Peter

40 Kan. 701 | Kan. | 1889

Opinion by

Holt, C.:

We shall not review the findings of fact and conclusions of law of the contest court in rejecting the returns from the east precinct of Lake township, although the briefs of the parties are full on that subject. It would not change the result of the election whether we approved or disapproved its judgment, owing to the number of votes cast there. We will state, however, that the election held there was apparently conducted in good faith, and after notice had been given of the places of voting, which the officers of the township believed to have been sufficient; there can be no imputation of unfair dealing cast upon the officers of Lake township, or the judges and clerks of election of that precinct.

Peter, in his contest, charges that there was a corrupt and fraudulent conspiracy of the judges of Harper township, between themselves and certain citizens of that township, to elect Blue, and for that purpose a large number of illegal votes were counted for him; that under their control the election was so fraudulently conducted that the entire poll should be thrown out. The contest court did reject the entire vote of that township. Peter offered a great volume of testimony to prove that there was a fraudulent election; he showed that on the morning of the election the township officers, who under the law would have been the judges, were absent from the polling-place, and the election board was organized by the election of officers from the bystanders. He offered evidence for the purpose of proving that during the day the judges procured, and permitted to be placed in the ballot-box of Harper township, 175 pretended ballots, and caused the clerks of said election to write upon the poll-books of said township 175 names; and that the ballots themselves were spurious, and the names were fictitious. He further charges, and offered testimony tending to prove, that there were 125 ballots deposited in the ballot-box for persons who had been residents of the township, but had moved away or were absent on election day; and that the clerks wrote down those names on the poll-books when the ballots were put in the ballot-box; and then again, that the judges received and counted for Blue for register of deeds about fifty votes cast by illegal voters, whom the judges knew were not qualified electors at the time the votes were cast. He says, of these fifty illegal votes a large number were imported from Wellington for the purpose of voting for Blue.

We can dismiss the charge of the illegal selection of the election board, by stating that of itself there was nothing unusual in its organization. King, the trustee of the township, who should have been there, was a candidate for reelection, and desired to remain outside among the voters; and there was nothing in the manner of their election to show that there was any preconceived plan of selecting those who served as judges. The other objections against them are supported by evidence demanding more consideration, and possibly by the action of the judges themselves there may have been some reason for believing they were selected for the purpose of giving Blue a large vote at that precinct; but we repeat, the manner of choosing them of itself would not indicate any corrupt practices.

This is error from the district court, but the case was argued, and it was expected and we believe it is necessary that we should review the rulings and judgment of the contest court. The amount of testimony introduced in this case is very great, and the record voluminous; perhaps all of the objections urged may not be noticed specifically in this opinion, but we have considered them all, and shall notice those which we deem important. The plaintiff in error says first, there was illegal testimony admitted over his objection and exception; second, that the court erred in making the findings of fact from the evidence admitted in the contest court.

The important question considered by the contest court was, whether or not the judges of election of Harper township were guilty of malconduct, fraud and corruption. If their guilt was established, then the contest court was authorized, and it was its duty, to reject the entire return from that precinct. (Tarbox v. Sughrue, 36 Kas. 225.) It is contended that before this can be done it must be shown that Blue, a party to this action, must have known and aided the judges in such malconduct. This is not necessary. It is enough if it be established that they were guilty of malconduct, fraud or corruption, without any reference to the participation therein or knowledge of any candidate. The complaints pressed upon our consideration of the errors in the admission of evidence, because Blue was not proven to have been connected with the illegal and corrupt acts, are disposed of by this enunciation of the law.

The first witness, Jennings, testified that at the election there were two tickets, the “north” and “south,” or the Harper and Anthony tickets, and he was allowed to detail in what manner the candidates on the different tickets were nominated, and what the feeling was in the county between the north and south parts thereof. We find no objection to the introduction of this testimony. The returns themselves, and other evidence introduced, tend to establish that behind the candidacy of the parties to this action there was a contest between the rival cities of Harper and Anthony, quite generally understood by the electors of Harper county; and in the rivalry the citizens living in or near each of the cities took part. This may have been carried to such an extent as to have been the motive, possibly, for the alleged misconduct of the election board at Harper.

During the trial it appeared that there was a printed circular distributed in Harper, which was headed “Demand your fees,” and advised each witness summoned to demand his fees, mileage and attendance, when he should be served with a subpena. This was offered in evidence, and received as proof to show that the citizens of Harper were hostile to Peter, and were attempting to obstruct the witnesses from attending court, and to embarrass the full investigation of the case. We think the circular should not have been admitted in evidence. We know of no rule of evidence under which it would be admissible ; but we cannot perceive how it was materially prejudicial to the defendant. In this connection the court made an order exempting all witnesses from arrest in coming from or returning to their homes. We do not know why this order was made; there is nothing in the record that would justify it; but it was harmless, protected no one, and only showed, possibly, that the judges were a little over-jealous of their power and dignity. In the absence of proof in the record why they should have issued such an order, we can simply say, that although it was an error it did not and could not have changed the result of the trial.

Plaintiff in error complains of the admission of the testimony of J. G. Meenan, who was a superintendent of a gang of men on the railroad west from Wellington, in Sumner county; he testified that a few days before the election in 1887, a Mr. Drewer, of Harper, came to him and told him he wanted thirty men to go to Harper to vote on election day, and repeated several other statements made by Drewer to himself; and also that there were others besides Drewer from Harper who treated with him concerning this matter; there were quite a number of witnesses besides Meenan who testified to the efforts to procure men who lived in Wellington to go over to Harper and vote on election day. This testimony, it is claimed, was admissible upon the theory that there was a conspiracy between those persons trying to obtain illegal votes and the judges of election, to elect Blue, and that anything done by any conspirator in furtherance of the common design would be competent to establish the malconduct of the judges. Of course the statements of these parties alone would not establish a conspiracy, but it is urged by Peter that the reception of these votes by the judges was a part of their general plan to elect Blue. There is some testimony — not very strong, however — to prove there was a prearranged plan between the judges of the election and the parties who brought these men from Wellington as to the time and manner of depositing their votes. This testimony would not be sufficient, if standing alone, to prove, that they were banded together for the purpose of swelling the vote for Blue in Harper precinct by illegal means and methods. When this testimony was introduced, perhaps there was not sufficient ground for its introduction; however, in the matter of introducing testimony of this character the trial court had a very large discretion, and we believe, taking the testimony that was subsequently admitted in the case, there was certainly enough to sustain the findings of the court of malconduct on the part of the judges; and considering it in every phase of this election, possibly the testimony introduced of these illegal votes was competent to establish the conspiracy between the judges of election themselves and those who brought the illegal voters over from Wellington on election day. It would be profitless to discuss the testimony offered by each one of those who cast illegal votes, and those who testified to the bargain for their votes at Harper. In dismissing this phase of the case, we will notice the objection made by plaintiff in error in his brief, that those who came from Wellington did not know for whom they voted for register of deeds. It is in evidence that of 612 votes polled, there was one vote for Peter, four blanks, and 607 for Blue; we presume this would be sufficient evidence to support the findings of the court that these illegal votes were cast for hjm.

The testimony in this case which has controlling weight with us is the poll-books of the election in November, which show the total vote of that precinct to be 612; the poll-book at the special railroad election, July, 1887, in which 609 votes were cast; and the returns of the trustee of Harper township, containing a list of all males over twenty-one in the township in the spring of 1887, being 417. On comparison of these lists, it appears that there were 222 names on the poll-book of the November election that do not appear on the poll-books of the July election, and upon the poll-books of the July election there appear 219 names which are not upon the November poll-books; there were 261 names upon the November poll-book that do not appear upon the assessor’s list of Harper township and city. It appears that during the year in that precinct more than 800 voters apparently voted, as shown by the poll-books. These lists are proof sufficient to sustain the finding that there had been malconduct, fraud and conspiracy in the election in November at Harper.

There is nothing in this opinion in conflict with the law enunciated in the case of Tarbox v. Sughrue, supra. In that action as in this one, one of the main questions in dispute was whether the election board was guilty of malconduct in conducting the election. On the trial of that action in this court, evidence was introduced of the number of votes cast at that precinct at former elections, the census-roll, and the failure to identify and account for a large number whose names appeared on the poll-books. At the election at Dodge City there was an animated contest between three candidates for the same office, each one of whom received a large vote. Vigorous partisans were closely watching the progress of voting in the interest of their favorite candidates; repeated challenges were made and decided by the board. At Harper no challenges were made, and the poll was practically unanimous for Blue, with no friends of Peter at the polls. In the Dodge City case there was much evidence of a large immigration into that section of the state during that year (1885); that the relative increase in the vote at Dodge City was not greater than at several other voting-places in Ford county. It was shown that many heads of families had located upon the public lands within the limits of Dodge City precinct, and that the registration list of Dodge City after it was incorporated as a city was incomplete for various reasons, and that the census-rolls were equally so. There was a total absence of evidence in this case to show why there had been such a sudden and rapid increase in the votes of Harper precinct; no reason assigned or proof proffered to show why there had been so great a change in the population from the 1st of March, 1887, to the railroad election on the 9th day of July, and between that day and the November election. In the action of Tarbox v. Sughrue, the trial was had at Topeka, and months after the election. This trial was begun the following month, and continued for thirty days, in the county where the election was held, and where the witnesses could be easily obtained.

In addition there were subpenas issued for about ninety of those claimed by Peter to be fictitious voters, and the return of the officer shows they were not found in Harper township. A number of the old settlers in Harper township were placed upon the stand, and were unable to account for a very large number of the names supposed to be fictitious. If they had been actually persons resident of Harper township or city, it appears as though the whereabouts of nearly every man could have been ascertained. The failure to find the residence of so large a number of purported voters is more than suggestive, and to our minds a very strong proof of fraudulent voting.

There is also a finding that there were 47 votes cast in the ñames of those who had formerly been residents of the city and township, but had moved away before election day. The testimony justifies that finding, and in it we have additional proof of malconduct of the judges of election. These two findings and the evidence that supports them, with the other testimony offered, are sufficient to uphold the finding that the illegal votes cast by those who came from Wellington for that purpose were cast with the knowledge and connivance of the judges of election.

Another method of proving that the names on the poll-books were fictitious, and were not on the different lists, and that others were not residents of the township, was by asking those who had the best opportunity of knowing the residents of the township, if they knew or had heard of any one of the names appearing upon the poll-books. We believe it was competent and proper testimony as tending to show that the parties did not live in the township.

In regard to those who had left the township shortly before the election, the plaintiff was allowed to prove that it was generally rumored that the people named had moved away from Harper. This was incompetent testimony; it could not be justified under any rule of law; it was hearsay, could be easily manufactured, and was clearly inadmissible; the court erred in admitting it. In this connection also, in admitting the statements of these various parties in Harper after the election, concerning their connection with bringing these illegal voters from Wellington and coming over themselves, there was clearly error. The admission of a conspirator is no evidence against his fellow when the illegal act they had conspired to do has been accomplished, and this testimony should have been rejected. (Gilleland v. Schuyler, 9 Kas. 569; The State v. Johnson, ante, p. 266.) From the evidence introduced it is clear to our minds that the contest court had ample evidence for believing there was a conspiracy entered into by the judges of the election, at least, and probably with some persons outside their number, and for that reason it gave a wide latitude to the introduction of testimony. It is not to be wondered at that a court, constituted as contest courts are, broke over some of the well-established rules of law in admitting evidence; but considering all the errors it committed, we come to the conclusion that its judgment in rejecting the poll of Harper township was correct. If there had been no other testimony than the poll-books of November and July, and the list of the assessor, and the return of the subpenas issited to those who were claimed to be illegal voters, and the proof by those who should be best acquainted in Harper that they knew of no such persons in the township, this evidence is enough to sustain the findings of the trial court.

When we come to this conclusion we must believe that Peter received more votes than Blue for the office of register of deeds, and therefore think he was elected to that office. We hold it to be of the utmost importance that not only every man should have the right to cast his ballot as he sees fit, but it is also of equal importance that it be counted as he cast it, and no illegal votes should be counted in the election in which he casts his ballot. It is the will of the majority that should control; and every fraud that is practiced to thwart it, every subterfuge and device that is used to defeat it, should be unhesitatingly condemned.

We recommend that the judgment of the district court be affirmed.

By the Court: It is so ordered.

All the Justices concurring.