195 Iowa 1368 | Iowa | 1923
Crestón, a city of 8,000 people, is divided into five wards. At the general election held on November 2, 1920, a proposition to grant a franchise to appellee for the use of the streets of said city was voted upon. The proposition carried by a majority of 19. Omitting the vote of the second ward, which is challenged by appellant, there was a majority against the proposition of 44. Briefly stated, the record, without serious dispute, shows that George Atkinson, general manager of appellee, Henry Tramp, a stockholder, J. W. Stratton, and others visited the polling place in the second ward some time after the polls had been closed, and while the judges and clerks were engaged in counting the ballots. The ballots being counted had been deposited in a separate ballot box from the one used for the franchise ballots. Upon inquiry of the judges, Atkinson and those with him were informed that the franchise ballots could probably ijot be counted until the following day; whereupon
It is not claimed by appellant that the number of votes cast for and against the proposition in the second ward, as returned by the election officers, is not in accordance with the marking shown on the ballots. The offer in evidence of the poll book and certificate of the judges of the election was objected to by appellants upon the ground that there was such irregularity and illegality in the counting of the ballots as to render them inadmissible in evidence. No fraud is charged.
It was both irregular and illegal for the election officers to permit interested and unauthorized parties to remove the franchise ballots from the box and count them. However good may have been their intentions, their conduct ■ cannot be approved. It is to be hoped that similar conduct will be avoided by all election boards in the future. In the absence, however, of some affirmative showing, or of such circumstances as that an inference may be drawn that the ballots were tampered with by Atkinson and his companions, or of fraud upon the part of the election officials, the conclusion necessarily follows that prejudice is not shown. There is not a scintilla of affirmative evidence that the ballots were marked in any way; that any were extracted or mutilated or substitution made; that they were tampered with in any way, except that they were removed from the box and counted by the parties named; or that any attempt was made to affect the result. All that transpired was in the pres
All of the above cases, which are cited and relied upon by appellants, involve election contests in which the question of the admissibility of the ballots in evidence because of improper preservation was the point in issue. The appellant did not, in the case at bar, offer evidence to show that the ballots were improperly preserved, or that they were tampered with after they were delivered by the judges to the proper officer, so as to render them inadmissible in evidence. The point urged is that there was such illegality on the part of the election officers as to render their certificate inadmissible in evidence, and to wholly vitiate the election in the second ward. Granting that the doctrine of the cited cases is sound, and that such is the law of this state, they are not .decisive of the exact question before us. If the election was fairly held and the ballots correctly counted, they express the will of the electors of the city of Crestón. This is the end aimed at. Every intendment of the legislature and every safeguard provided thereby for the securing of a fair election and the preservation of the ballots should be observed by election officers, and must be upheld by the court; but the clearly expressed will of the voters should not be thwarted or set aside by the courts because of irregularities and even illegalities which are not shown to have in any way affected the result or to have prejudiced anyone. Cases cited by counsel from other jurisdictions, perhaps, go somewhat further in invalidating elections than we have gone. We are firmly committed to the
It is not alleged in the petition that the action is prosecuted by Dusey and Dunlap, but it appears therefrom that it was commenced by the county attorney, Frank Wisdom appearing with him. The costs should not, upon the record before us, have been taxed to the parties named. The judgment below should be modified so as to provide for the taxation of the costs to the proper party.
It follows that the judgment and decree of the court is modified as to costs, and thé cause remanded for the proper taxation thereof. In all other respects, the judgment is affirmed. —Modified and affirmed.