73 Neb. 622 | Neb. | 1905
This is an appeal from a decision by the district court of a contest of an ejection to the office of county assessor. The procedure adopted by the district court was analogous to that practiced on the trial of an ordinary adversary action, and there are returned with the hill of exceptions 244 ballots which the court formally excluded from evidence because of certain irregular, defective and unauthorized markings. The appellee, citing Mauck v. Brown, 59 Neb. 382, contends that the present proceeding is a technical appeal, in which the familiar rule obtains that this court will not correct the errors of the trial court with reference to exclusion of evidence, but will decide the case upon the record as it is brought here, and that therefore these excluded ballots cannot be considered. That the decision cited sustains this contention there is no doubt, and our minds are equally free from doubt that in this respect it is wrong and ought to be overruled. It was said in Bell v. Templin, 26 Neb. 249: “A tribunal to determine contested elections need not be, strictly speaking, a judicial body, the powers exercised being quasi political and administrative.” And in Thomas v. Franklin, 42 Neb. 310, it was held more explicitly and emphatically that “the proceeding for contesting an election provided for by this statute is, strictly speaking, neither an action at law nor a suit in equity. It is a summary proceeding of a political character” — and that “it is not only a privilege but it is the duty of this court, on its own motion, to look into the record and determine whether the proceeding is authorized by such statute.” If such is the case, and we quite agree that it is, it is difficult to understand hoAV such proceedings can be rightly conducted in a purely judicial
The foregoing considerations dispose of another preliminary objection that no new pleadings were filed in the district court. The complaint and anSAver thereto that Avere filed in the county court, were transmitted with the record on the appeal, and embodied all the grounds of contest that Avere permissible thereafter to be urged in ihe proceeding. New pleadings could have been nothing but copies and would have served no useful purpose.
.There is no charge of fraud or of intentional violation of the election laAV. The rejected ballots were collected, a feAV from each of the eighteen election precincts in the
It would not be profitable to reiterate the views of the law expressed in the opinion in Bingham v. Broadwell, ante, p. 605, argued and submitted and considered jointly with this case and decided at the same time. It is notable that in both cases the objections that are made to individual ballots are of a character that is commonly described as “technical.” That is to say, the purpose or intent with which they were cast is not in doubt, and the honesty of the voter is not questioned, but it is sought, by one party or the other, to defeat that intent because of some alleged defect or informality, the evident result of innocent awkwardness, mistake or ignorance. To the accomplishment of such an object, we cannot lend our sanction, and seemingly the court might find some more profitable employment. Unless this country has recently undergone a revolution that has escaped our notice, a voter can be lawfully deprived of his suffrage or a popular election can rightfully be quashed for only a few causes, namely, fraud or corruption, intimidation or violence or such gross irregularity as renders the ascertainment of the will of the individual, or of a majority, or a plurality, as the case may be, impossible. If history teaches any lesson relative to the subject, or relative to any subject, for that matter, it is that electors are far less likely to be guilty of malconduct than are election and returning boards, supervisors and inspectors. A requirement of excessive strictness in compliance with technical formalities has in all times been a most facile instrument for defeating the popular will. Less “terrible” but more to be feared than “an army with banners” are intricate and complicated election laws in the hands of skillful and unscrupulous manipulators. It is true that any of the defects or markings of the ballots mentioned in the foregoing classification might have been and may be employed for the purposes of subsequent identification and fraud, but there is not the least' suspicion that any of them was so employed, and we think
There is only one class of ballots above mentioned which in our opinion call for special discussion, that is, those that were indorsed by one judge of election and by the initials of another. They are 26 in number and may be regarded as in literal violation of what has been decided to be a mandatory requirement of the statute. They are not a violation of the statute in strict literalness or of its spirit at all. In treating of the indorsement the statute uses the terms “names” and “signatures” interchangeably. A name is a word or words, designation or appellation used to distinguish a person or thing or class from others, and words indicated by single letters are only less adapted to that purpose than AA-ords indicated by several letters. A signature is whatever mark, symbol or device one may choose to employ as representative of himself. One of the judges, the initials of Avhose name Avere Avritten on 25 of the ballots, was P. A. Buller, and the other Avhose initials appeared upon one of the ballots was A. J. Flatung. Buller was SAVorn as a witness and testified to having Avritten the letters on the ballots himself with no sinister intent, which indeed is not suspected. He further testified that he wrote them as, and intending them for, his signature, and that he was accustomed to so using them instead of his full name upon his letters and some of his business documents, particularly Aveight or scale certificates or checks. -The object for which the indorsements are required is evident. It is for the purpose of the identification and authentication of the ballots, so as to render it certain that none not officially issued shall be" used for voting. That this object Avas as effectively accomplished, and as likely so to be, by the means adopted, as it would have been by the use of the full name or of the surname and the first two initials, is not disputed or doubted, and we think the spirit, if not the letter, of the statute was satisfied. The letters written by Buller with his own hand
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.