135 Iowa 451 | Iowa | 1907
Tlie appellant contends that this rule should be applied to the instant case, and that this court should hold the statement of general consent and the poll books incompetent evidence to overthrow the action of the board of supervisors declaring the statement of consent sufficient because the statement of consent and the poll books were in the hands of the defendant’s attorneys where there was a possibility of their being tampered with. We are unable to agree with this contention, however. The very fact that the statute gives any citizen of the county the right to contest the sufficiency of the statement of consent necessarily implies a right to the examination of such statement even in the absence of a statute expressly providing that all papers relating to the mulct tax filed with the auditor shall be open to the inspection of any citizen who may desire it. These papers then, including the statement of consent, became a part of the public records of the county, subject to examination by interested parties, and subject to the same rules governing the examination of other public records of the county, and no one, we think, will claim that, because an ordinary record book required to be kept in one of the county offices was temporarily out of the keeping of its legal custodian, it would thereby become incompetent evidence of its contents if they were otherwise admissible. No such rule applies to ballots, and one of the strong reasons for applying a different rule to them is because the ballots themselves cannot be identified; as said in the eases, “ they have no earmarks.” Statements of consent and poll books may be easily identified; this is particularly true of statements of consent, because they must, under the law, be signed by the voter himself, and, while it may cause some inconvenience to show — for instance, that he in fact signed the statement of consent, and that his signature had been erased or changed — it can, nevertheless, be done. We think
ber of signers necessary to make the statement of consent sufficient, is two thousand, nine hundred and thirty-seven. The trial court counted two thousand, five hundred and thirty-three names on the statement of consent, and refused to permit the appellant to identify by parol evidence the names appearing on the statement of consent which differed in some manner from the names appearing on the poll books. Thq statement of .consent and the poll books have been certified to this court, and we have given the same careful examination in connection with the’ abstracts and arguments of the parties, and we find that, under the rule announced in Porter v. Butterfield, 116 Iowa 725, the statement of consent falls far short of containing the required number of names. The appellant presents a list of 527 doubtful names appearing on the statement of consent which ought to be counted. It is manifestly impossible to present more than a few illustrations of the differences in the names appearing on the statement of consent and on the poll books, but there are very many instances where the difference is as follows: On the statement of consent, the name of G. H. Meyer appears, while a corresponding name on the poll book is George Meyer. Another instance is the name Henry Wagner on the statement of consent and H. C. Wagner on the poll book. William Wall on the statement of consent, *and W. M. Wall on the poll
The - appellant contends, however, that the rule of the Porter-Butter field case is not controlling here because many of the names appearing on the poll books were not, in fact, as given to the clerk of election, but were so recorded through accident, fraud, or mistake, and that, because of this new element in the case, the parol evidence offered by him was competent. The statute makes no such exception, however, and, as said in the Porter-Butter field case, the Legislature has power to make rules of evidence governing these proceedings, and, when it does so, such rules supersede general rules of evidence, and must be observed by the courts. It is practically conceded by the appellant that, unless this parol testimony was admissible, the statement of consent is insufficient, and there is no escape from this conclusion. With the policy of this legislation, we have nothing to do; and hence the appellant’s argument relating thereto cannot be given judicial consideration.
A point is made as to the right to withdraw from the petition after notice of canvass has been given, but its determination is not necessary to a finding as to the sufficiency of the statement of consent, and we therefore do not decide it. the judgment of the district court is affirmed.