131 Iowa 328 | Iowa | 1906
The parties stipulated that “ a count of the ballots as they now appear if admissible in evidence shows a greater number of ballots for contestant than incumbent.”
questions arising in the case.” It is argued that this merely eliminates the jury from such trials. It does more. It changes the proceedings from ordinary to equitable by specifically requiring that the hearing shall be in equity. And having been so heard in the trial court the cause must be heard anew in this court. The amendment then but recently enacted appears to have been overlooked in Spurrier v. McLennan, 115 Iowa, 461.
pointment in writing nor bond such as is exacted by section 481 of the Code. Nevertheless he continued to perform the duties of deputy auditor up to the 1st Monday of January, 1905. That he was deputy de facto during this period is not open to controversy. Buck v. Hawley, 129 Iowa, 406; Herkimer v. Keeler, 109 Iowa, 683.
As such he received a part of the election returns and had access to them up to Monday after election, but nothing-in his conduct was made to appear inconsistent with his duties as deputy auditor. Appellant insists that the fact
The contestant had undertaken the duties of deputy auditor, and was bound to perform them honestly. This included the proper care of the ballots whenever that duty devolved upon him. Had the auditor been a candidate for re-election no one would pretend that he would have been disqualified from .receiving and caring for the returns, or that, if he did so, he should for this reason only, be deprived of the advantage of a recount in event of a contest. , Nor would any one think of-inquiring into his title to the office then held in order to assail his official acts in relation to the election returns. Were it otherwise the acts of a de facto officer might have the effect of invalidating an election or as applied to himself of defeating the will of the people, the determination of whose choice is of far greater importance than the interest of any individual. The deputy auditor is in a like situation and in determining whether the ballots have been properly preserved the title of neither to his office is in issue. The public is primarily interested in their acts, and it is enough to endow them with all the sancity of official acts that they may be proven to have been performed by officers de facto, regardless of whether also officers de jure. Doubtless any interest in the election aside from that of every citizen is.proper matter of consideration and will call for a closer examination of conduct with reference to the returns. See Farrell v. Larsen (Utah), 73 Pac. 227; Hamilton v. Young, 26 Ky. Law 447 (81 S. W. 682). But from this alone it cannot be inferred that the ballots have not been preserved in safety.
v. Bernholtz, 106 Iowa, 157; Cook v. Fisher, 100 Iowa, 31. Any possibility of prejudice owing thereto was obviated by a stipulation that “ the identical ballots cast at the several voting precincts were the identical ballots delivered to the proper messengers, and by them brought to the county auditor’s office the day after election, and that they were in the same condition as when cast by the voters; and, further, that the envelopes or cases containing the ballots were in the same condition when they reached the auditor’s office as when delivered to the messengers, except‘such breakages or abrasions, as to seals, if any, as might be made in handling.”
The judgment of the district court is affirmed.— Affirmed.