Todd v. Cass County

31 Neb. 150 | Neb. | 1891

Maxwell, J.

A motion for a rehearing has been filed in this case, and after careful re-examination of the facts we are convinced that our former decision is right, and that the proof fails to show, with that degree of certainty required by law, fraud in the election sufficient to change the result, and therefore that the court below erred in annulling the election.

The attorneys for the appellees, however, seem to labor under the impression that the court had decided that in all cases it was necessary to identify by name the persons who voted fraudulently, and that an election could not be annulled unless all the fraudulent votes were distinctly pointed out. These questions were not presented in such form that they controlled in this case for the following reasons : The action was brought upon the theory that certain persons named had cast illegal votes in the city of Portsmouth, or that illegal votes had been cast in the names of such persons.

There was also an allegation that a certain number of illegal votes were cast, the names of the voters being unknown to the appellees. The court held that in a case of this kind the illegal voters must be pointed out, and if not known at the commencement of the action, the names should be inserted in the petition by leave of court when ascertained. To prove that certain illegal votes were cast in four of the wards of said city, four witnesses were called from each ward, who testified in substance that while they had a general acquaintance in their own wards and in the city, yet that of certain of the persons returned as having voted therein they had neither knowledge nor acquaintance. There was no attempt to take the city in detail and prove who resided on certain lots and blocks therein and so cover the whole city with proof. We must presume this kind of proof was not desired as it was not resorted to.

The testimony shows that the average number of votes cast at the election in question in each of the First, Second, Third, and Fourth wards was about 500. Now, no one will contend that any person residing in any ward or precinct of a growing western town or city is acquainted with and can call by name one-half or one-third even of the inhabitants therein, where they number several hundred. This is true of a resident of a ward, and was doubly applicable in the case at bar where a large number of now railway employes had but a few months before come into the city. One of the modes of proof in a case of that kind is to call a resident on a certain block in the city who is acquainted with the residents on such block, and require him to testify as to the people residing thereon. If he is not acquainted with all the persons residing on the block he probably is.with those residing on the lot on which he resides, and perhaps those on the adjoining lots. These persons he will name, and other witnesses residing upon other lots in the same block must be called until all the persons residing on said block at the time of the election are proved. The proof as to other'blocks is to be taken in the same way. In a thickly settled portion of the city it may be necessary to call a witness from each house, while in a sparsely settled portion thereof a witness may be able to testify as to the voters in said ward, or at least in several blocks thereof. Nothing of this kind was attempted, hence all that the proof established was a mere suspicion, and was therefore wholly inadequate.

Second — But it is said in effect that the unknown illegal vote was not considered by the court. That is true, for the reason that none was proved. The number of votes cast for the bonds is shown, also the votes cast at the city election, which is said to have been exciting on account of the issue in school matters. The votes cast at the election in November, 1889, are also shown, and it is claimed that this was an exciting election. But, taking the finding of the court as true, about one-third of the voters in said city did not attend such election, which shows that but little public interest was taken therein. The votes cast at the presidential election in 1888 and for county officers do not appear, nor have we any evidence as to the votes cast at the general election in 1887. Had the proof shown that the number of votes cast in 1887 and in 1888 were but 1,300, and that the votes cast at the general election in 1889 were about 1,300, and that this number at the bond election June, 1889, had been swelled to more than 2,200, the conclusion would be almost irresistible in the absence of proof explaining such votes that the increase had been obtained by fraud.

We find, however, that the judge found that in June 1889, there were 1,928 legal voters in the city of Plattsmouth; presumably these voters were there in November, 1889, but because of a new registry law, many of the voters, being railway employes and on duty, failed to register and vote. No one will contend that if the votes cast in the city of Plattsmouth for president and state and county officers should equal or exceed 2,200, that any presumption of fraud would arise in June, 1889, because the city cast more than 2,200 votes. Why the returns of the two preceding general elections were not introduced in evidence we cannot understand, if it was sought to .impeach the returns by showing a grossly increased vote in June, 1889. In such case the votes at preceding general elections for at least two years should be shown, and also the votes cast at any subsequent election. These votes may be explained by showing a lack of interest in the voters, or any other cause for an increase or decrease of the votes. Where, however, & city or precinct without adequate cause shows a grossly excessive vote, which is unexplained, it may be cause for reducing the vote to the ordinary average limit, or, if it cannot be separated and it is clearly apparent that fraud has been perpetrated, for rejecting it altogether. These are some of the modes by which fraudulent voting may be detected and the wrongs redressed. This cannot be done on a mere suspicion, however, as in the absence of proof to the contrary ballots cast are presumed to be valid. The case made by the record is not sufficiently definite to show that fraudulent votes were cast at Plattsmouth at the election in question.

The motion for a rehearing must-be

Overruled.

The other judges concur.