42 Neb. 760 | Neb. | 1894
It appears from the record in this case that at the regular election held in this state November 7,1893, theie were in the county of Saline four candidates for the office of county judge, of whom Napoleon B. Hayden and Hosmer H. Hendee, two of the candidates, according to the canvass and returns made by the clerks and judges of the several election districts of the county and the further canvass of such returns by the county clerk and the duly authorized board of canvassers, received each the following number of votes: N. B. Hayden, 1,331 votes, and H. H. Plendee, 1,329 votes; the other two candidates, it further appears, receiving less than 600 votes each. In accordance with the result of the canvass, N. B. Hayden was declared duly elected to the office of county judge, and qualified and took possession of said office and assumed the performance of the duties thereof. On November 25, 1893, Hendee commenced proceedings to contest the election by filing a complaint in the district court of Saline county, in which was pleaded why there should be a recount of the ballots in the several precincts or voting districts of the county, or a change in the returns, etc. To this the respondent filed a motion to dismiss the petition. This being overruled, he filed an answer, in which the allegations of the complaint
“And the court proceeded at once to a recount of the ballots of the several voting districts of said county, without the introduction of preliminary proof. Contestee excepts. And the court finds from such recount of the ballots that the ballots cast at the election held in said county on November 7, 1893, for the respective parties hereto, for the office of county judge, to be as follows:
Crete, first precinct—
For contestant, 86; for respondent, 67
Crete, second district—
For contestant, 45; for respondent, 90
Crete, third district—
For contestant, 56; for respondent, 76
Dorchester, first district—
For contestant, for respondent, 44: 42
Dorchester, second district—
For contestant, for respondent, 62: 28
Lincoln precinct—
For contestant, for respondent, 63; 13
Friend, second district—
For contestant, 138; for respondent, 28
Friend, first district—
For contestant, 131; for respondent, . 25
Turkey Creek precinct—
For contestant, 44; for respondent, 32
Monroe precinct—
For contestant, 45: for respondent. 34 45; for respondent,
*763 Pleasant Hill precinct—
For contestant, 48; for respondent, 71
Big Blue precinct—
For contestant, , 32; for respondent, 83 794 589
Wilber, first district—
For contestant, 55; for respondent, 151
Wilber, second district—
For contestant, 37; for respondent, 138
Brush Creek precinct—
For contestant, 19; for respondent, 77
North Fork precinct—
For contestant, 27; for respondent, 54
Atlanta precinct—
For contestant, 65; for respondent, 32
Olive precinct—
For contestant, 96; for respondent, 87
South Fork precinct—
For contestant, 86; for respondent, 70
Swan Creek precinct—
For contestant, 61; for respondent, 52
He Witt, first district—
For contestant, 73; for respondent, 68
De Witt, second district—
For contestant, 45; for respondent, 27 1,358 1,345
“ Contestee excepts.
“That being a total of all the voting districts and precincts of the county; making of the ballots so recounted:
For contestant............................................. 1,358
For the respondent....................................... 1,345
Excess for the contestant over the respondent of.....13
“ The court further finds that upon the recount of the ballots of the first district of Friend precinct there were*764 found and recounted fourteen more ballots than there are names of voters in the poll books of that district, and that many more ballots than were canvassed by the election board of the district at th,at election; and the court further finds from the testimony of the election officers of said district of Friend, at that election, that there were fourteen ballots spoiled at that election, and returned to said officers as spoiled and were kept separate during the day; that none of them found their way into the ballot-box, or were canvassed by the board, but that said fourteen ballots were not put with the unused ballots and so returned to the county clerk, but were, at the close of the canvass, folded and strung on a string and the string looped around them and then the ballots that were cast and canvassed strung on the same string and were then sealed up and so. returned to the county clerk. Contestee excepts. And the court further finds that upon opening and recounting said ballots all became so intermixed that it was impossible to separate the fourteen ballots from the others, and that the recount of the ballots of that district shows a gain of five votes for the contestant and one for the respondent, over the poll books and tally sheets of the district. The contestant then put in evidence all the poll books and tally sheets of all the respective voting districts of the county and all the ballots, except tbe ballots of the first district of Friend. The court further finds upon the evidence offered to show illegal voting, under the allegations of the respondents’ answer, that two illegal votes were cast and counted at said election by Jol\n Hopkins and H. D. Eldred, and that they were for the contestant. Contestee excepts. The court further finds that inasmuch as the ballots of the first district of Friend precinct are not in evidence, and are the primary evidence, the court cannot consider the poll books and tally sheets of that district as evidence, and they áre therefore excluded from consideration. The court therefore finds that of all the*765 ballots legally east at said election for the office of county judge of said county, and so before the court as to be considered in this case, 1,319 were cast for the respondent Napoleon B. Hayden, and 1,225 were cast for the contestant Hosmer H. Hendee, and that the said respondent was duly and lawfully elected to said office and is entitled to the same. It is therefore considered and adjudged by me that the petition of the said Hosmer H. Hendee, contestant, be and the same is hereby dismissed; and that the respondent Napoleon B. Hayden recover of and from the said contestant his costs by him herein expended, and taxed to the sum of $-. To all of which the contestant excepts.”
And these further findings and judgment:
“After examining the ballots voted at the general election held in each and all of the voting precincts in Saline county, Nebraska, on the 7th day of November’, 1893, which said ballots were returned to the county clerk of said county, the court finds that said ballots from each and all of the precincts, together with the poll book, were properly sealed up and returned to the county clerk of said county in compliance with the requirements of the statutes, and that said ballots had in all respects been properly preserved by the said county clerk according to the statutory requirements.
“2. After counting all of said ballots so returned to the said county clerk from each and all the voting precincts in said county, the court finds that the contestant Hosmer H. Hendee received one thousand three hundred and fifty-eight (1,358) votes for the office of county judge, and that the incumbent Napoleon B. Hayden received one thousand three hundred and forty-five (1,345) votes for the office of county judge.
“ 3. In the counting of said ballots there was counted from the first district of Friend precinct in said county one hundred and ninety-eight (198) ballots, of which ballots*766 there were cast and counted for the contestant one hundred and thirty-one (131) votes, and for the incumbent twenty-six (26) votes and forty-one (41) miscellaneous. All of the ballots so counted by the court which were cast at said general election, excepting the one hundred and ninety-eight (198) ballots returned from the said first district of Friend, were introduced in evidence by the contestant. The said one hundred and ninety-eight (198)'returned from said first district of Friend precinct not being introduced in evidence by either the contestant or the incumbent, the court finds from the ballot introduced in evidence that the contestant Hosmer H. Hendee received one thousand two hundred and twenty-seven (1,227) votes for the office of county judge, and that the incumbent Napoleon B. Hayden received one thousand three hundred and nineteen (1,319) votes for the office of county judge. Contestant excepts.
“4. The court finds that two of said votes which were cast and counted for contestant were cast by non-residents and illegal voters. Contestant excepts.
“ 5. It is therefore considered by the court that said Napoleon B. Hayden, the incumbent, was lawfully elected to the office of county judge. It is therefore considered by the court that said election be in all things confirmed, and that the complaint be dismissed at contestant’s cost. Contestant excepts.”
During the progress of the case the poll books and ballots were ordered brought into court for inspection and were accordingly produced, and the envelopes or packages in which were contained the ballots opened and the votes for the contestant and contestee recounted. When the first district of Friend precinct was reached in the recount it was developed that there were some fourteen more ballots on the string (the ballots had been run upon a string before they were placed in the envelope) than, as shown by the returns, there had been votes cast in the district. The testimony of some of the judges and clerks for this districty
The counsel for contestee contends that the ballots are primary and controlling evidence, and they being in court and within the control of the contestant for the purpose of use as testimony, if he desired so to use them, his failure or refusal to offer or use them precluded the admission or consideration of what he terms se'condary evidence, the poll books and tally sheets. That the ballots are the primary and controlling evidence of the expression by the voters of their selection of candidates for the various offices to be filled at an election we think is well settled by authority. The ballot, as deposited, bears upon its face the handiwork of the voter, is a record of his choice made by himself, and when received and preserved in the manner provided by law is certainly entitled to. greater weight and to be preferred as evidence of what it contains than any record made from it by others, however skillfully they may be made or accurate they may be; but with this established as the rule, does it sustain the action of the court of which
It will be gathered from the above statement in regard to the. canvassing of the votes first by the election boards and their lists by the county clerk and his associates on the canvassing board that the ballots, after the election
Reversed and remanded.