40 Neb. 135 | Neb. | 1894
At the general election held in Cheyenne county, Nebraska, on November 8,1892, the parties to this case were candidates for the office of county attorney of said county. The canvassers of the votes cast at said election declared that the incumbent had received 463 votes and that the contestant had received 462 votes for the aforesaid office of county attorney. Upon a trial in the county court it was found and adjudged that there had been cast for the incumbent 471 votes and for the contestant 454 votes,—a majority of seventeen for the incumbent. On appeal in the district court of said county it was adjudged that contestant had received 503 votes, while the incumbent had received but 474,—a majority of twenty-nine in favor of the contestant. The incumbent appeals to this court. It is deemed necessary to consider but’one question, for reasons which will hereafter require no explanation. On the trial in the district court Daniel McAleese, county clerk of Cheyenne county, testified as follows:
Q,. You may state to the court if you have the ballots that were used and voted at the last general election held November 8, 1892, in your possession.
Q. Are they the same ballots that were returned to you by the judges of election?
A. I cannot tell. They were the same that were returned from Lincoln.
Q. And the ones returned from the judges and clerks of election ?
A. They may be. I would not swear to.it.
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Q. How many packages did you send to Lincoln?
A. I don’t know how many. I think about fifteen.
Q,. Fifteen districts?
A. Districts or precincts.
Q. Were the same number sent back to you?
A. I did not count them. It was my deputy.
On cross-examination this witness testified as follows:
Q. How long were they [the ballots] away from your office?
A. I am not sure about that—the exact time.
Q. About how long?
A. I think about a month,
Q,. And you do not know whether these ballots you say you have in the county clerk’s office now are the same ballots that were sent to Lincoln by you?
A. I would not swear positively that they were, but I think they are.
Q,. Can you swear positively that they are all or the same ballots that were sent to Lincoln by you?
A. I can’t swear, because I did not count them.
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On re-examination this witness testified as follows:
Q,. By what authority did you send the ballots to Lincoln ?
By the Court: Do you mean the state auditor?
A. Yes, sir; the secretary of state.
Q,. In what manner did you send them?
A. My deputy sent them.
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Q,. Were they sent as directed by the auditor of public accounts?
A. Yes, I presume they were.
Q,. In what manner were they returned, and by whom?
A. My deputy can tell you that. I don’t know. We have no instructions for their return whatever.
By the Court: Do you know who they were received from ?
A. I do not.
Q. Does your deputy know?
A. He may know.
James McMullen, the deputy clerk of said county, was then called, and testified that the ballots in question were sent to Lincoln by authority of an act passed by the state legislature and certified to the county clerk of Cheyenne county by the secretary of state. This order was in the following language:
“State of Nebraska,
“Office of the Secretary of State,
“Lincoln, Neb., February 10, 1893.
“ JDan’l McAleese, Esq., County Clerk, Cheyenne Cou/nty, Sidney, Nebraska—Dear Sir: Your attention is respectfully called to House Roll No. 112:
“‘An act to recount the ballots cast for and against an amendment to the constitution relating to executive officers, and an amendment to the constitution relating to permanent school funds, on the 8th of November, 1892, and to declare the result.
“‘Be it enacted by the Legislature of Nebraska:
“‘Section 1. County clerks of each county of this state
“‘Sec. 5. Any county clerk failing to transmit the ballots and poll-books as required by this act shall be deemed guilty of a misdemeanor and shall be fined not less than $100 or not more than $500/
“The act referred to in this letter originated in the house of representatives and passed the legislature February 9, 1893. You will please forward to secretary of state the ballots and poll-books as mentioned in this letter.
“Yours respectfully,
“[seal.] John C. Allen,
“ Secretary of State.
“ By C. C. Caldwell,
“Deputy.”
.“By express, February 13, 1893.
“D. McAleese,
“County Clerh.
“James McMullen, Deputy.”
After identifying the above notice, Mr. McMullen’s evidence was as follows:
Q,. Upon receiving that order what did you do in reference to the ballots of this county?
A. I immediately tied up all the ballots that I received from the judges and clerks of election, and also all poll-books, and put them in a grain sack and secured a string around the neck of the grain sack and sealed it thoroughly with sealing wax and sent it by express to the secretary of state to Lincoln, Nebraska.
Q,. When were they returned, if at all? '
A. A similar package was returned. I did not note the date, but I presume they were gone about a month. I believe I noted the date when I sent them away, but when I received them back again I did not note the date. They
Q. How was it sent?
A. By express.
Q. And you have these ballots in your possession at •this time as a public officer?
A. I never opened the sack. I don’t know what was in it.
Q. I say, you have that sack in your possession and its contents?
A. Yes, sir.
On his cross-examination this witness said:
A. I received no note of any kind from the secretary of state whatever. I got notice from the express ageut at Sidney that a package was in the office for the county clerk. I sent to the express office for it and left it in the office of the county clerk. Have no communication from the secretary of state.
Q,. Didn’t the secretary of state ever notify you that the ballots sent by you had been returned?
A. He did not.
Q,. Did he ever notify you that the same identical ballots sent by you had been returned?
A. He did not.
There was other evidence from these witnesses who were recalled, but in substance it was the same as that which has been just set out.
House roll No. 112, referred to in the circular letter of the secretary of state, is found under the head of “Special Laws and Resolutions,” as chapter 68 of the Laws of 1893. This act makes no provision for the return of the ballots and poll-books to the respective counties from which they were required to be forwarded to the secretary of state. In the matter under consideration the ballots and poll-books were absent from the office of the county clerk of Cheyenne «ounty for the space of about a month. It is shown by the
- In Albert v. Tieohig, 35 Neb., 563, it was held in a contest of election that the ballots cast at such election constituted the primary evidence to determine the rights of the respective parties, and that to their consideration in evidence
Reversed.