114 Ky. 312 | Ky. Ct. App. | 1902
Opinion of the court by
— Reversing.
This contest involves the election to the office of county attorney of Edmonson county. The election was held in November, 1901. On the face of the returns as certified to by the officers of election, appellant had a majority of 19 votes. Within the time allowed by statute, appellee filed a petition in the Edmonson circuit court, in which the validity of the certificate awarded by the election commissioners to appellant was attacked upon two general grounds. One was that the officers of election of each of the precincts in the county had fraudulently or mistakenly counted votes for appellant which in fact had been cast for appellee. The other was that illegal voters had been allowed to vote in certain precincts, and had voted for appellant, and that, when the errors or frauds first mentioned were corrected, and the returns were purged of the illegal votes last mentioned, the result would-have been that appellee would have
The first question presented by this appeal is whether, in the first place, the ballots were properly before the court as 'evidence, and, in the second place, whether the court’s action concerning the custody, inspection and counting of the ballots was authorized by law. For appellant it is insisted that the ballots, not having been produced and proved within the time provided by the statute for the taking of proof in the case, could not be subsequently introduced, because to so allow would be to permit the introduction of evidence for the party so using them after the time allotted by the statute for that purpose. The court is of opinion that it was the purpose of the Legislature, in enacting the law providing for the preservation of ballots, and providing that they should be locked in boxes with separate locks, so that* the keys to one should be in the hands of the officers of the precinct of one of the political parties, and the keys to the other lock in the hands of the officers of the other political party, and that, in the event of a contest, the keys were to be delivered by such officers to the judge of the circuit court of the circuit having jurisdiction of the case, to malte such ballots evidence of the first importance in a contested election. When such a contest is filed, the ballots become evidence by that fact for all proper purposes before the trial court, to be introduced and consid
Whether the court should have appointed commissioners to aid it in tabulating and counting the ballots is a matter not entirely free from doubt. It may well be argued that the duty of canvassing returns of an election can only be exercised by those officials specifically charged with it, who are, in the first place the officers of 'election of the several precincts; then the commissioners of election of the county; and then, in the case of contest, the circuit court upon whom jurisdiction is conferred by the statute. The expression in that act that “the action shall proceed as an equity action” would seem to have reference more especially to the manner of the production of 'evidence, which is by deposition exclusively under the Civil Code,- in equitable cases, and dispensing with the jury; for in no other particular do the actions appear to be tried as equitable actions. In fact, in many particulars, noticeable in the terms of the statute, they are quite dissimilar from equitable actions. From the expression above referred to it has been thought that the court found its power to appoint commissioners. But whether this is true or not, it was not proper for the commissioners to have excluded the parties and their counsel from the proceedings when they were opening and canvassing the returns in litigation, nor was it regular or proper for them to have held a secret meeting for that purpose, however pure may have been their intentions. Certainly, the parties to the litigation, in person or by counsel or both, were entitled to witness, not merely the opening of the ballot boxes and the envelopes containing the ballots, but also
After the election it is known just how many votes are required to change the result. The ballots themselves can not be identified. They have no earmark. Everything depends upon beeping the ballot boxes secure, and the difficulty of doing this for several months, in the face of temptation and opportunity, requires that the utmost scrutiny and care should be exercised in receiving the evidence. Every consideration of public policy, as well as the ordinary rules of evidence, require that the party offering this evidence should establish the fact that the ballots are gen-
Another fact in this case is that at the same- general election in Edmonson county out of which this contest grows the office of the clerk of the county court was also in contest; that is, the incumbent, who had received the certificate, and who continued in office, having the custody of the ballots in question, -was interested in the result and condition of these ballots, because his office was also then being contested. The ballot boxes, though locked, it is suggested, were wooden boxes, so constructed that they could have been entered by the use of a screwdriver, taking off the hinges, which were exposed. In Albert v. Twohig, 35 Neb., 563, (53 N. W., 582), it was said that, although “the ballots cast constitute the primary evidence to determine the rights of
From these authorities this court holds: That the ballots cast in an election are the primary and best evidence of the voters’ will as expressed therein, and that in case of a contest, as between the certificates of the officers of election and the ballots, the ballots are the best evidence, but
There was a number of so-called “questioned” ballots returned by the officers of the election, there being some from every precinct in the county, excepting perhaps one. The certificates required by the statute to be attached to these questioned ballots was not attached in any instance. The statute on this point reads as follows (Act to Further Regulate Elections, Acts Gen. Assem. 1900, Ex. Sess., p. 18, section 10): “That if there are any ballots cast and counted or left uncounted, concerning the legality or regularity of which there is any doubt or difference of opinion in the minds of the judges of the election, said ballots shall be
Among the illegal votes cast at this election was one cast by Lewis Hill, who is conclusively shown to have been an idiot. Copies of inquests finding him such were produced in evidence. Under the Constitution and statutes of this State idiots and lunatics are not permitted to vote, and this person should have been excluded from the polls. The trial court, upon the 'evidence, which we will notice, deducted his' vote from appellant. That evidence was that this person claimed to belong to the same political party of which appellant was the nominee, and that afterwards the idiot had stated that he had voted the straight ticket of that party. On the other hand, appellant proved by another witness that, while the idiot had told him that he had voted the straight ticket of the party, yet, when describing how he voted that ticket, he showed that he voted it by placing the stencil mai*k under the emblem of the opposite party. Manifestly, the statements' of this idiot should not have been received, or, if received at all, the result is that each cancels the other. What a voter may say after the election, and after he has voted, as to how he voted, is at best but hearsay. An idiot, of course, is one who is destitute of mind, and has been since his birth. Such a person would not be competent as a witness. Certainly, his statement out of court could have no more legal force than his statement made in court under oath. We are of opinion that the court erred in deducting this vote from appellant.
Virgil S. Wolf voted for appellant. His vote was deducted by the trial court because it found that he was an illegal voter. The facts appear to be that he was an unmarried man, and had previously lived in Edmonson county, in the precinct in which he voted, but had some time during that year gone to Evansville, Ind., to work. He remained there a few months, returned to Edmonson county, and was living there when this election occurred. The
Stanley S. Minton is shown to have voted for appellant. Previous to the election he had removed to Indiana with his family, and expressed his intention to remain there permanently. Afterwards he evidently changed his intention, and returned to Edmonson county, but within a year before the election. His vote was deducted from that given to appellant, and, we think, rightfully.
James Cook and Andrew W. Skaggs voted, evidently, for appellant. Their votes were deducted upon the theory that they were minors at the time of the election. The only ■evidence before the court that they were minors was the testimony of the county court clerk that a school census on file in his office showed that each of these voters was born within twenty-one years before the date of the election. The court is of the opinion that this school census is not evidence of the date of the birth of these people for any other
Marcelina Bailey is shown to have voted for appellee.. Within sixty days' before the election he removed from the precinct in which he had been living for some months into another precinct, in which he had not lived, and voted in the latter precinct. He is the only witness on the subject. He testifies that he did not move until the 12th of September, 1901 (the election occurred on the 5th of November); that on the 12th of September, he sold his property, and removed his home. This vote was not excluded from appellee, but should have been.
Rufus Tartar is shown to have voted for appellee, and the court deducted the vote upon the ground that he was an illegal voter. No complaint is made that this action was not proper. The record is pretty clear that he was an illegal voter. The facts in the case of this voter are substantially the same as Stanley S. Minton’s, above discussed.
There was one ballot rejected that had been marked thus: The cross-mark was made with a pencil within the-circle under the device under which appellant was a candidate. Then cross-marks were made with the stencil in the squares after several of the candidates, but none after the name of any candidate for .county attorney on the opposite' ticket. The court has held in the cases of Houston v. Steele, 98 Ky., 596 (17 R., 1149) 34 S. W., 6, and Graham v. Graham, 22 R., 123 (68 S. W., 1093), that a mark with a pencil at the point where the stencil should have been made is. equivalent to a mark with the stencil. It would, therefore,
There are other questions presented in the record, but which do not appear to affect the result, and which are not argued in briefs. We refrain, therefore, from discussing them. The result is that appellant received a majority of the legal votes cast for the office of county attorney, and the judgment should be rendered accordingly.
The judgment is reversed, and the cause remanded for proceedings consistent herewith.
(June 20, 1903.)
Response by Judge O’Rear to petition for rehearing:
The very earnest petition for a rehearing has induced a careful re-examination of the record, and that by other judges than the one who wrote the opinion. As the result, the court concludes to adhere to the former opinion. However, there are two matters, unimportant as affecting the result, or any conclusion of law announced, that we desire to correct. We do not, and did not, intend, by anything said in the opinion respecting the action of the two com missioners who canvassed the returns, to intimate that they were actuated by other than perfectly honest motives, or
Lewis Hill and George Parsley were held by the lower court to be illegal voters. P»ut their votes were not deducted, because there was not sufficient evidence in the opinion of the trial judge as to how they voted to authorize it. Hill,, we held to be an illegal voter, but as to Parsley we did not decide whether or not he was a legal voter. We concluded,, also, that there was not sufficient evidence as to how they voted to warrant the deduction of their votes from those of' either candidate. It is due to the trial judge to say that the result of his finding respecting these two votes is sustained; but, as neither he nor this court rejected those votes, the result is not affected.
The petition for rehearing is overruled.