23 Or. 481 | Or. | 1893
This was a special proceeding under the provisions of sections 2544, 2548, Hill’s Code, to contest the right of the defendant to the office of coroner of Multnomah County, to which he was declared elected by
1. In the case at bar the testimony was taken before a referee, and upon this evidence the cause was tried by the judge, and because that court had no advantage over this, in that it did not hear the witnesses nor observe their deportment, the appellant contends that it should now be tried de novo. In proceedings of this character the statute contemplates that it shall be tried as an action at law, without the intervention of a jury: Hartman v. Young, 17 Or. 155 (11 Am. St. Rep. 787; 20 Pac. Rep. 17); Fenton v. Scott, 17 Or. 190 (11 Am. St. Rep. 801; 20 Pac. Rep. 95). The object of the statute, probably, was to place the trial of an election contest with the court instead of a jury, for the reason that the former would be less liable to party influences and political motives than the latter. Party spirit, political bias and local prejudice might influence a jury in passing upon such questions-, which would not affect a court; and for this reason, and in order to facilitate a speedy trial, the statute has wisely placed the trial of such causes within the jurisdiction of the circuit courts without the intervention of juries; but this would not make the cause equitable in its character, nor change the rules of practice upon appeal.
The determination of this cause rests upon the identity of the ballots recounted. The important findings of fact of the trial court are as follows: 29. That during the time the ballots were in the room opposite the clerk’s office the clerk of the county court paid close attention
The one question presented by this appeal is, was there any admissible evidence offered in the court below to support the findings of fact therein reached ? Section 220, Hill’s Code, provides that “the order of proceeding on a trial by a court shall be the same as provided in trials by jury. The findings of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reasons, as far as applicable, and a new trial granted.” The findings of the trial court must stand as the verdict of a jury if there be any admissible evidence to support them, unless we can say, as a matter of law, that they are manifestly wrong. In Fenstermacher v. State, 19 Or. 508 (25 Pac. Rep. 142), Lord, J., after reviewing the authorities in support of this legal proposition, says: “The weight of evidence is for that court, and not for us, to determine, however much we might feel disposed to differ from it. ” The evidence is all set out in the bill of exceptions, and is review able on the motion for a nonsuit, not as a trial de novo, but to determine if there was any admissible evidence to support the findings. The election was conducted in pursuance of the requirements of an act of the legislative assembly, approved February 13, 1891, and commonly known as the “Australian Ballot Law.” This act requires the county clerk to print the ballots upon white paper, and to deliver them to the sheriff, who transmits them to the judges of election. These ballots, when printed, shall state the number and name of the precinct they are intended for, and the date when the election will be held, and shall contain the names of all the candidates for office to be filled at the election. The ballots for each precinct shall be in a package by themselves, properly marked with the number contained in the package, and addressed to the judges of election, whose duty it is to deliver one of them to each elector to be prepared by him for voting, and after the polls are
The evidence in the bill of exceptions shows that one thousand and two hundred white ballots were printed for precinct No. 15, North Portland; that several days before election they were sent by the printer to the county clerk in a package by themselves; that the county clerk, upon receiving this package, placed it with others in a vacant room of the court-house, across the hall from his office; that the door of this room was fastened by a spring lock, for which there were four keys; that the clerk had one, the janitor one, and each of the two watchmen one; that this room had windows about ten feet from the ground, which were unlocked; that after these ballots had remained in this room several days, the county clerk sealed the package for precinct No. 15, North Portland, by pasting a certificate over the string which was tied around it, and on Saturday preceding the election on Monday, he delivered this package to the sheriff; that the sheriff was unable to transmit it to the judges of election till the morning of the election, and that it remained in the courthouse during that time; and when the package was delivered to the judges, they broke the seal, and two hundred and thirty-two ballots were cast; that the judges think they destroyed all the remaining white ballots as soon as the polls were closed; that the votes cast were canvassed by the judges and clerks of election in the presence of several persons of all political parties, and the returns thereof were made out and certified to by the proper officers, showing the result to be one hundred and six votes for Holman and seventy-five for Hughes; that the bystanders who were present at the canvass agreed with the judges and clerks upon the tally of the votes cast and reported; that when the canvass of the votes polled was completed, the ballots counted were arranged in two packages, with strings run through each and tied; that they were then wrapped in paper and sealed, and addressed to the county clerk; that these sealed ballots
The evidence also showed that the clerk did not have sufficient room in his office to store these ballot-boxes, and that he adopted this vacant room as an office for that purpose; that he frequently went into this room while the ballots remained there, for the purpose of receiving the returns from other precincts, some of which did not arrive till Thursday; that he instructed the janitor and watchman to carefully guard this room, which they did so far as they were able; that it was possible for a person with a key to have entered the room at night unobserved by the watchman, while he was on his round of duties in the upper rooms, but he does not think it probable; that when the ballots were carried to the vault they were put into boxes and record books put over them ; that persons acquainted with the clerk could have passed through the vault from the clerk’s office to the recorder’s office; that the vault was locked each night; that during the day some person connected with the clerk’s office was on duty all the time; that when the clerk delivered the ballots to the referee they did not appear to have been disturbed, and the clerk testified that they had been in his possession from the time he received them till he delivered them to the referee. The evidence further showed that when the testimony was being taken before the referee, the wit
2. In the contest of an election under the statute, two presumptions arise: First, that the returns of the judges and clerks are correct; and, second, that the ballots have not been tampered with. The ballots cast constitute the primary evidence, in all cases, of the expressed will of the electors, while the returns are but secondary, and must always yield to the primary evidence. The certificate of a board of canvassers is merely evidence prima facie, showing for whom a majority of the votes appears to have been given, and it is now a well established doctrine that in a proceeding to test title to a public office, the certificate is not conclusive as to the result shown thereby, but the courts will investigate the facts of the election to ascertain the number of votes and for whom cast: High, Extr. Rem. §§ 61, 638, 639; Cooley, Const. Lim. § 623. When the identity of the ballots has been established, the result of a recount thereof differing from
3. When the ballots are shown to have been in the custody of the proper officers from the time they were cast until recounted and kept as prescribed by law, although insecure, they are admissible in evidence in an election contest, and their identity becomes a question of fact for the trial court; but when it is shown that they have not been kept in the custody of the proper officers, and have been left in an exposed and improper place, where opportunity has been given for tampering with them, they should not be received in evidence to overcome the official count made by the election officers. Before-any evidence should be received to overcome the prima facie correctness of the returns, the identity of the ballots should be established beyond a reasonable doubt. If this can be done, the fact that the ballots have for a moment, an hour, or a day, been in the custody of an unauthorized person, ought not to thwart the expressed will of the electors. It is true that the returns should be guarded with jealous care, and all the forms of law should be observed, but these rules are only directory: O’Gorman v. Richter, 31 Minn. 29 (16 N. W. Rep. 416). If the rule were otherwise, and. all the statutory provisions mandatory, the precinct canvassing board might falsify the returns, and by that means perpetuate in office, or elect, any person whom they chose. The only act necessary upon the part of the judges and clerks of election for this purpose, would be to send the ballots cast by some unauthorized person to the county clerk, and it would not matter if it could be shown by the testimony of a multitude of unimpeachable witnesses that such person had exercised the greatest care; that the ballots when delivered to the county clerk were in the exact condition as when received; such evidence could not be admitted to overcome the prima facie correctness of the returns. There would be neither reason nor justice in such a rule. The identity of the ballots recounted is a question of
Some authorities hold that where the ballots have been handled by unauthorized persons, or where there has been an opportunity to meddle with them, that they cannot be received in evidence: McCrary, Elect. § 278. In Powell v. Holman, 50 Ark. 85 (6 S. W. Rep. 506), the evidence showed that one of the clerks, on the night of the election, before the canvass was completed, took the ballots in a sack, unsealed, and the pollbooks and the tally-sheets, and put them in a wardrobe of the Odd Fellow’s Hall, under a combination lock; that other orders held meetings in the same hall; that no one remained with the election returns and ballots, and that on the next morning the clerk returned the tally-sheets and ballots to the polling place, when the canvass was completed. The returns and ballots were then sent to the county clerk, who put them in a room called the “library,” where they remained a week or more, and while there, the court finds that access could have been had to them through the insecure fastenings of the office, and for that reason held that the ballots were unworthy of credit as evidence. So, in Kingery v. Berry, 94 Ill. 518, the evidence showed that some twenty days after the election, the town clerk, in whose keeping the ballot-box was intrusted, with eleven other persons, one of whom was the petitioner, opened the box and handled the ballots; that
The fact that the ballots were sealed when the referee received them does not necessarily nor conclusively prove that the seals had not been disturbed. Any person who could abstract the votes castand substitute others therefor, could reseal them in such manner as to avoid detection; and yet, it was such a fact as the trial court had a right to consider, and its conclusion should be binding upon this court.
The judgment is therefore affirmed.