73 P. 227 | Utah | 1903
The plaintiff, who was ;a rival, candidate, brought this action to contest the election of the defendant to the office of county clerk of Cache county, Utah. The contestant alleged that the board of canvassers, at the election held November 4,1902, returned 3,060 votes for him and 3,066 votes for the contestee; that a certificate of election was issued to the contestee; that in all of the districts of the county legal votes for the contestant were rejected, and illegal votes counted for“the contestee; that ballots improperly marked, and bearing marks of identification, were counted for the contestee; and that, if all the illegal votes cast for the contestee were deducted from the total vote, the number of votes received by the contestee would be less than the number received bv the contestant. At the trial,
The contestee now challenges the correctness of the judgment and decree by appeal, and insists, inter alia, that the court erred in admitting the ballots in evidence, and ordering them to be recounted in certain districts, where the contestant alleged illegal ballots had been counted by the board of canvassers. It is urged that, after the votes were counted, and the official returns and canvass made, the ballots were not kept and preserved as required by law. The statute concerning elections, in section 858, Bevised Statutes 1898, on the subject of the disposal of ballots after counting by the judges of election, provides: “At all elections, the ballots as soon as read must be strung on a string by one of the judges, and must not thereafter be examined by any person. The ‘excess’ and ‘defective’ ballots, separately strung, shall, with the counted ballots, be carefully sealed in a strong envelope. Every ‘excess’ or ‘defective’ ballot must be marked by the judges, in writing, across the face thereof, ‘Excluded on the ground of ... ,’ filling the • blank with a brief statement .of the reasons for the rejection, which statement must be dated and signed by the judges.” Section 863 provides that the judges, before they adjourn, must deliver the package of ballots so counted and sealed to one of their number, who must, within 24 hours, deliver it, “without their having been opened to the county clerk, city recorder, or town clerk, as the ease may be. ’ ’ Section 865 provides that upon the receipt of such package the clerk or recorder must file the same, and “must keep it unopened and unaltered for twelve months,- after which time, if there
In McCrary on Elections, sec.' 471, the author says : “Where, as is the case in several of the States, the statute provides a mode of preserving the identical ballots cast at an election for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that the ballots may be tampered with after the count is made known, especially if the vote is very ■close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law from the time of the original count until they are produced before the proper court or officer; and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and improper place, they cannot be offered to overcome the official count.”
The Court of Appeals of New York, in People v. Livingston, 79 N. Y. 279, held that the trial court erred in charging the jury that, to justify the rejection of the ballots as proof, it must appear affirmatively by direct evidence or from circumstances that the ballot boxes had been interfered with and a fraud committed. Mr. Chief Justice Church, speaking for the court, in part said: “The error is in putting upon the party against whom the ballot boxes are introduced the onus of proving that they had in fact been tampered with. The statute requires the ballot boxes to be preserved undisturbed and inviolate, and it is incumbent upon the party offering the evidence to show that they had been so> kept; not beyond a mere possibility of interference, but that they were intact to the satisfaction of the jury. The burden was upon the relator to satisfy the jury that the boxes had remained inviolate. The returns are the primary evidence of the result of an election. They are made immediately upon canvassing the votes, and the
Mr. Justice Brewer, in Hudson v. Solomon, 19 Kan. 177, said: “In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with. ’ ’
In Jeter v. Headley, 186 Ill. 34, 57 N. E. 784, Mr. Justice Wilkins, delivering the opinion of the court, said: “While the right to have the ballots so kept, and recounted upon a contest, is a most important right, frequently guarding a candidate against willful or negligent false returns, yet it can readily be seen that to allow a reeanvass of the votes east at an election to destroy the effect of the returns by the judges and clerks when regularly made, and without proof of omission of duty,
Looking now at the facts disclosed by the record in the case before us in the light of the principles above referred to, the question is, were the ballots kept
Having reached this conclusion, it becomes unnecessary to decide any of the other questions presented. The judgment must, therefore, be reversed, with costs, and the cause remanded, with directions to the court below to dismiss the action.
It is so ordered.