No. 19885. Department Two. | Wash. | Apr 7, 1926
On March 9, 1926, a city election was held in Seattle. Various officers were elected, and there was also submitted to the voters the following propositions: (1) Whether fifteen freeholders should be elected to revise the charter; and (2) whether or not Seattle should adopt a city manager plan.
Voting machines were used in the election. At the close of the election, the regularly appointed precinct officers canvassed the vote in their precincts and entered the same in their returns, and forwarded them to the election board, which, under Rem. Comp Stat., § 5147, as amended by Session Laws of 1923, ch. 53, p. 173, § 3, is composed of the chairman of the board of county commissioners, the county auditor, and the prosecuting attorney, in Class A counties. King county is a Class A county.
Thereupon the election board canvassed the result of the election on all matters excepting the proposition for a city manager plan. This it refused to canvass upon the returns made by the precinct officers, because it had, in the meantime, received two letters from parties interested in the result of the election on that proposition, intimating that the vote was very close and requesting that investigation be made of the voting machines to determine if there were any discrepancies. The board thereupon announced that it would open the voting machines to determine the correctness of the returns made by the precinct officers. An action was then commenced in the superior court by one of the candidates for freeholder to restrain the board from opening the voting machines.
A complaint in intervention was also filed by the intervener herein. The complaints set forth substantially *490 the facts heretofore detailed, and the answer filed by the defendants set forth that there were discrepancies in the returns and poll books relating to the vote on the city manager plan; that the defendants made and checked and tabulated the poll books of the various precincts of Seattle affecting the proposition, and ascertained that, according to the recorded figures on the proposition, it lost by a majority of 111 votes; that by law the votes for and against such a proposition are required to be entered by the precinct officers in numerals and in words; that examination of the recounts showed that in some precincts the record of the votes was entered in figures only; in some precincts entered in pencil only; in other precincts entered with pencil and traced over with ink; in other precincts certain figures had been entered and had been entirely erased and new figures substituted; in other precincts figures had been entered and entirely erased and new figures entered over the old; that in each case, however, where the votes cast on this proposition were entered in both figures and words the figures and words tallied; that there were approximately 73,300 votes cast on the proposition; that the question of the city manager plan is one of great importance to the city and to the citizens of Seattle, and that they believed the vote on the proposition should be definitely and positively established beyond any question of doubt; that the voting machines contained an apartment which can be opened, and which will disclose the total vote cast upon the proposition without in any way interfering with the voting mechanism; that the defendants do not desire to do anything further than to open this compartment to determine if the figures entered upon the returns of the precinct officers tally with the total votes received in the compartment. Upon hearing, the *491 superior court was of the opinion that a demurrer, filed at the same time as the answer, should be sustained and that the restraining order heretofore issued against the opening of the machines should be dissolved. Thereupon intervener applied to this court for a writ of certiorari.
Both parties have stipulated that the matter at issue is of prime importance, and no question is raised as to the right or authority of the proceeding as to its form nor as to the right of the intervener to prosecute the same.
But two questions are presented by the record: (1) Is there any showing of a discrepancy that will justify the board in question in opening the voting machines? (2) Is this the board empowered by law, if there be a discrepancy, to make such examination?
[1] It will be noted from the statement of the case that all the allegations of discrepancies go to the failure of the precinct officers to always record the total number of votes in each precinct in both words and figures; in the failure to always require the total in ink; the allegation that figures had been erased and new figures substituted for them.
The statute authorizing the opening of the voting machines is Rem. Comp. Stat., § 5315, which provides, in part:
". . . Whenever it shall appear that there is a discrepancy in the returns of any election district the county commissioners, council, board or other governing body shall summon the inspector and judges of election thereof, who shall in their presence make a record of the number or other designating mark on the seal, and the number on the protective counter, open the counter compartment, and, without unlocking said machine against voting, shall recanvass the vote cast therein." *492
The question naturally arises, What is a discrepancy?
Webster's Dictionary defines discrepancy as "disagreement, variance, discordance, contrariety." See, also, Smith v. Boardof Canvassers,
It is quite evident that there is no disagreement or discordance upon the returns made by the precinct officers. There is no claim that there is any difference between the number of persons who voted and the number of votes cast. Neither is it claimed that any total shown on any return is incorrect. It may be true that the statute requires the total to be made both in words and figures, and that the total should be made in ink; but such provisions are usually considered as directory, and there is no claim that any total shown only in words or only in figures would be different if it were shown in both; nor that any total recorded in pencil would be different if it were recorded in ink. Nor is there any claim that if the counter compartment were opened that it would show details different from those contained upon the returns. Nor is there any claim that the returns as made are actually incorrect.
It may be true that the returns show that figures have been erased and other figures substituted; but that does not indicate that the change so made was for any other reason than that the first figures entered were wrong. A discrepancy referred to by the statute would be something to indicate that an error or a mistake has been made; that the total as shown is not a true one. The sanctity of the ballot box, or of the voting machine is not to be invaded simply because a vote is close, and it is hoped that a re-check of the work performed by the precinct officers may possibly show a change or an error. *493
Counsel for respondents have cited as authority for the opening of these voting machines, In re Smith,
Counsel on both sides have found comfort in the case of In reBarrett,
From the foregoing, it clearly appears that there were actual discrepancies in the returns which could only be corrected by the opening of the voting machines. There is nothing in the instant case to indicate any discrepancy.
Courts long ago adopted the rule that elections cannot be held invalid, nor the returns impeached, for mere irregularities. The officials in charge are chosen by law, and their actions and their returns are prima facie correct, except upon a showing of fraud or mistake. Thus it was held in Seymour v. Tacoma,
In view of our holding that there was no allegation of any facts showing any discrepancy in the returns of the precinct officers it is unnecessary to notice the other question raised as to whether the board in question was the proper board to recanvass the votes. The cause is remanded with instructions to overrule the demurrer and reinstate the restraining order.
TOLMAN, C.J., MITCHELL, PARKER, and MACKINTOSH, JJ., concur.