23 P. 177 | Idaho | 1890
At the general election, held in November, 1888, the parties to this action were opposing candidates for the office of sheriff of Bingham county, to which the appellant was declared elected. The respondent in pursuance of onr statute for “Contesting Certain Elections,” beginning with section 5026, commenced this action of contest, alleging as the grounds thereof: 1. Maleonduct of the board of judges of election in Rexburg precinct, in said county; and 2. That illegal votes were cast in said precinct, and counted for appellant. At the trial of the cause, when respondent closed, appellant interposed his motion for nonsuit, which being overruled, he proceeded with the introduction of his testimony. By the judgment of the court the respondent was declared elected to said office, and the appellant here asks its reversal.
All the alleged errors complained of by appellant may be considered under the following subdivisions: 1. That the court erred in overruling his motion for nonsuit because respondent’s testimony was insufficient to warrant a judgment in his favor; 2. That the findings do not support the judgment; 3. That the court failed to find on all the issues raised; and 4. That the judgment is not warranted by the facts and the law.
• The consideration of these questions has required an examination of perhaps the most voluminous record that has ever been submitted to the review of this court, and it has been found a most onerous duty to comply with the closing suggestion of appellant’s brief, in which he “commends it to our careful attention and thorough consideration.” We earnestly urge a closer observance of the provisions of our statutes which forbid the incumbering of the record with “redundant and useless matter.” Even when an appeal is taken, upon the 'ground of the insufficiency of the evidence, it is entirely unnecessary to incorporate all that has been said by witnesses, including questions and answers. The statute will protect the appellant who inserts in his record, in narrative form, only such evidence as is pertinent to the material issues, and procures thereto the proper certificate of the judge, showing that all such evidence is included.
Motion for nonsuit, on account of insufficiency of evidence, is waived by the subsequent introduction of testimony by the
Do the findings support the judgment? The appellant claims the findings do not justify and support the judgment. It is admitted they would be more satisfactory if more specific, but, being “proceedings” under our statute, they must likewise be liberally construed. They are, in effect, that “the judges of said election in said precinct permitted legal voters to be arrested, intimidated, and prevented from voting”; “that they permitted legal voters to be arrested for challenging illegal voters”; “that they permitted a large number of persons, whom they suspected were illegal voters, to vote without challenge”; “that they themselves were terrorized by threats of arrest, if they challenged illegal votes”; “that one of the clerks was violently arrested and taken away because he had challenged illegal votes”; “that they conducted the election almost the entire day without any election register”; “that they and others were intimidated and prevented from challenging any person offering to vote by armed men who were sent there from without the precinct by the United States marshal.” Our statute does not define what constitutes malconduct of the officers of election, but it must be held that any proceedings which result in unfair elections, that deprive the qualified elector of the opportunity of peaceably casting his ballot and having it counted as cast, or that permit illegal votes to be cast and counted, are within the statutory provisions. Section 570 of our statutes directs that the judges of election must challenge any person offering to vote whom they know or suspect not to be qualified; also it is required the “election register” must be at the polls. That the judges themselves were intimidated
Were all necessary findings made? The appellant’s next assignment of error is that the court did not find upon all the issues. This question seems for the first time to be suggested in his argument, as the record does not disclose that he asked any additional findings, or excepted to those found as insufficient, or made any objection whatever. It is noted that his objection now is not to a failure to find on all material, but on all, issues raised in the case. By numerous decisions it has been held that findings must be made upon all material issues, but even this ruling is modified 'in various ways; as that, “when the court fails to find on a material issue, .... judgment will not be reversed if the finding must have been adverse to the appellant.” (Hutchings v. Castle, 48 Cal. 156; People v. Center, 66 Cal. 564, 5 Pac. 263, 6 Pac. 481; California S. R. Co. v. Southern Pac. R. Co., 67 Cal. 65, 7 Pac. 123.) Also, if the facts found sustain the judgment, there is no necessity to go further, and find on other issues (Robarts v. Haley, 65 Cal. 402, 4 Pac. 385); and this court has said: “It must be held that all questions put in issue, and not found upon, would have been found against the appellants, or they were deemed immaterial.” (Gamble v. Dunwell, 1 Idaho, 271.) However, the question before us is not the establishment of a rule for the formulation of findings, but was it necessary in this case to find others than those in the record ? This is solved
Is the judgment sustained by the evidence? The only remaining question for consideration is whether the testimony is sufficient to justify the decision of the trial court. The reversal of a judgment on this ground must be only upon clear and convincing evidence that the court erred in its conclusion. In Ainslie v. Printing Co., 1 Idaho, 643, it is held that, whenever “there is a substantial conflict in the testimony, it will not disturb the verdict or the decision of the court below.5’ 'Other courts have gone even further, and by abundant authority it has become the established rule to sustain the conclusion ■of the trial court, unless it appears it is supported by so little •evidence, and contradicted by so much, that it must be inferred it was reached through passion or prejudice. We will briefly consider the testimony concerning, first, the alleged ir-•Tegularities of the election; and, second, the rejection by the nourt, as illegal voters, of those persons who claimed to have withdrawn from the Mormon church just prior to the election.
It was claimed in argument that the deputy marshals were •there in pursuance of law, and only for the purpose of preserving the peace and purity of the ballot-box. Attention has been directed to.the chapter on the “Elective Franchise,55 commencing with section 2002 of the Itevised Statutes of the United States, as containing the authority under which the marshal acted. The only section therein at all relevant provides that “when an election at which representatives or delegates to Congress are to be chosen is held in any city or town -of twenty thousand inhabitants or upward, the marshal shall, on application in writing of at least two citizens residing in •such city or town, appoint special deputy marshals.” No power under this section is given for such appointment, the place not having the necessary population. Section 2023 pro
There can be no doubt of the court’s power, in a case of an election contest, to inquire into the qualification of those who voted, and reject all disqualified. If in this ease it found the alleged withdrawal from the church by those parties was a mere form — a pretense to avoid the letter of the law — and that, in faith and practice they still adhered to such organization, it would be justified in rejecting them as legal voters. These persons were before the court, and from their own statements and the facts of the case we may judge them. A very large number withdrew on the same day, and all within about two weeks immediately prior to the day of election. They say this was absolutely without counsel or advice from anyone, and generally without knowledge that others were doing the same. In most of the cases it was done by a written resignation, which each claimed he had written out himself. Yet appellant, in his brief, says these withdrawals were by “notices in writing, and in substantially the following forms.” Then follows the form. It is most remarkable that so many persons, at about the same time, but without instructions or concert of any kind, should sever their association with this organization in a form of words so similar that appellant can reproduce what he alleges is substantially the form used. They also testified their reason for leaving the church was their desire to vote, and be endowed with all the privileges of American citizenship; that, while they had, two years prior, been denied the privilege of voting