159 Mo. 51 | Mo. | 1900
This is a contested election case for the office of clerk of the county court of Oamden county, growing out of the election held in 1898.
The contestee was the incumbent of that office, and was the nominee of the Republican party for' re-election to that office, and the contestant was the nominee of the Democratic party. The returns of the judges and clerks of election
On the 11th of November, 1899, the contestant filed a
The case was tried in the circuit court in November, 1899.
The difference between the vote as shown by the returns of the judges and clerks and as shown upon the second recount in October, 1899, has been compressed into tabular form by counsel for contestant, and is not controverted by counsel for contestee, and is as follows:
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The contestee showed that the ballots had been kept in his office, tied up in sacks, and the mouths of the sacks tied and sealed up, and the sacks inclosed in wooden boxes, and that'he or some of his deputies had guarded them every day and some one of them had slept in the office with them from the time they were delivered to him by the judges and clerks of election until they were recounted in April, 1899, and that none of them had been opened, except that as to the returns from Edith precinct of Russell township the judges and clerks had sealed up the returns in the sack with the ballots and that sack had to be opened to get -the returns, and that none of them had been changed or tampered with in any way. The recount showed no difference in this precinct from the vote shown by the returns.
Testimony bearing upon the other issues was introduced but it is not referred to here because no point is made on this appeal as to any such other issues.
The contestant asked sixteen instructions, and the court gave them all. ’ The contestee asked no instruction, but at his request the court made a special finding of facts as follows :
“Gomes now on this day (December 1, 1899) the parties in the above cause, the contestant and contestee, in their proper persons* and by -their respective attorneys, and this cause coming on for hearing, said parties announce ready for trial; thereupon issue being joined, and a jury waived by consent of parties, this cause is submitted to the court for hearing, and' the court, after hearing all the evidence in the*62 case, pro and con, 'and the arguments of counsel in the case, and the premises being seen and fully understood, makes the .following written- finding of facts, to-w-it:
“The evidence in this case, taken as a whole, and- all considered together, with all the presumptions of law necessarily to be indulged does not preponderate in favor of the contention that the contestee tampered with the ballots or permitted the same to be done, and I therefore rule that contention against the contestant.
“As to claim with reference to voters voting in their townships, but not in their proper precincts, I rule that contention against the contestant and hold that by law they were entitled to vote at any precinct within- the township.
“As to the contention that at certain precincts a proper and legal vote was not had, by reason of the failure to comply fully with the Australian- ballot law, I rule that contention against the contestant.
“As to the challenges made by the contestant, I sustain the following, to-wit: William Michael, D. N. Byler, S. R Rector, Frank Stephens, Thomas Kelsey, George Sanderson, Frank Jones, James Kelsey, William Jester, J. E. Wilkerson, J. A. Long, August Kemer, W. G. Osborn, Z. T. Jones, George Ray, Joe Shaw, Joe Shaw (voted two numbers), J. O. Simpson, J. M. O’Halloran, W. M. Phillips and Alonzo Huddleston, making 21 in all, which taken from the number returned by the clerk on the second recount, leaves the contestee’s entire vote 1,190.
“As to the challenges made by contestee to-votes where the title of the office is erased, I rule against the contestee and hold that the intention of the voter is manifest to vote as they were counted by the clerk.
“As to discrepancies in the name of Windes, the contestant, on some of the ballots, I hold that it is sufficiently*63 plain, from said ballot® that they intended to vote for Windes, and rule against the eontestee as to those votes.
“As to the challenges made by the eontestee, I sustain the following: J. W. Hale, James M. Hale, Tom Eoster, Robert Gilbert, George Moulder, Joe Appleton, H. O. Brisendine, Isaac Whitedeer, John Eitzpatrick, Hugh Russell, A. E. George, J. W. Anderson, Sam Kiplinger, J. P. Groom, John Oornett, Elmer Hix and S. T. McGuire, mating 17 in all.
“The contention of the eontestee that 45 votes cast for Harrison H. Windes should not be counted for the contestant, I rule against the eontestee and count said votes for the contestant, giving him a total of 1,120, which after deducting therefore the 17 illegal votes, leaves a balance of 1,103 legal votes east for the contestant.
“As to the other challenges made by both contestant and eontestee, they are not, in my opinion, sustained by the evidence.
“A summary of the legal votes, as I find from the evidence to have been cast, is as follows: Owen A. Nelson received 1,190 votes; Henry H. Windes received 1,103 votes. Nelson’s majority, 87 votes.
“The eontestee is entitled to hold the office.”
Judgment was accordingly entered for the eontestee, and after proper steps contestant appealed.
I.
The only point argued or relied upon in the able brief for the contestant is that the ballots were changed between the time they were delivered by the judges and clerks of election to the eontestee, as clerk of the court, and the time they were recounted, with the result that instead of the eontestee
• This position is illustrated by two instructions asked by the contestant and given by the trial court, as follows-:
“1. The court declares the law of this case to be that Owen A. Nelson, contestee, being a party to this proceeding and the party into whose custody the ballots and poll books of the general election in Oamden county were delivered in 1898, and who was charged by the law with the protection of the same, so- that in case of a contest the identical ballots might be produced in evidence in the same condition in which they were cast at the election, and if the court from the evidence shall find that the -said ballots were tampered with by the said Nelson, or any other party in his interest by his knowledge or consent, then this certificate on recount as to all such ballots voted at the said election for contestant are admissions on his part that said ballots were so voted, the same being admissions against interest, and as to his certificate on'recount as to all other ballots purporting to have been cast for himself, the same should be rejected as evidence of what votes were case for contestee.
“2. The court declares the law of this case- that if it be found from the evidence that after the poll books and ballots were delivered into the custody of the contestee, he changed such ballots or that -thy were changed in his interest and with his knowledge or consent, and that by reason of such fraud the ballots cast at the said general election in Adair and Osage townships in Oamden county, Missouri, became*65 so tainted with fraud that the real condition of the ballots at the time they were delivered into the custody of the contestee could not be ascertained at the recount of such votes in this case, then the -entire vote cast for eontestee in said townships should be rejected.”
The result desired by contestant was not attained in the circuit court for the reason that while the court agreed with the contestant as to the law as expressed in the instructions given, it found against him on the facts and held that, “the evidence in this case, taken as a whole, and all considered together, with all the presumptions of law necessarily to be indulged, does not preponderate in favor of the contention that the eontestee tampered with the ballots or permitted the same to be done, and I therefore rule that contention against the contestant.”
Contestant does not claim that the trial court erred in any matter of law, but that the finding of fact is erroneous. Hence he asks this court to agree with the trial court on the law declared by it and to reverse the finding of fact.
If the theory of contestant’s first instruction is correct, and if the fact be that the ballots were tampered with and changed after they came into the hands of the eontestee as county clerk, of course the contestant would have to be declared elected, for in that event the only votes remaining to be considered would be those for the contestant.
On the other hand, if the theory of the contestant’s second instruction is the true law, then the contestee’s vote in Adair and Osage townships, aggregating 549 votes, would have to be discarded, and deducting 549 votes from contestee’s vote of 1189, as shown by the returns of the judges and clerks, would leave him only 640 votes as against contestant’s 1119 votes, or deducting the 549 votes from the contestee’s 1211 votes as shown by the recount, would leave
The returns of the judges and clerks of election are, prima facie evidence of the facts stated upon the face of the returns. “This doctrine rests upon three presumptions: first, that sworn officers will act honestly and in good faith; second, that they will perform their duties with care; and third, that the votes received by them will be legal votes. The first presumption will be rebutted by proof showing that the duties were so carelessly performed that there were opportunities for others to commit frauds, and that they have probably been committed, and may be partially rebutted by proof of mistake; but if this mistake can be corrected, the presumption of correctness will be destroyed only so far as the mistake is shown, and the return will stand with the mistake corrected. The presumption as to the legality of the vote can be partially rebutted by showing that particular votes cast were illegal; but unless the number of cases proved is so great as to amount to proof of fraud, the accuracy of the general return will not be affected, but it will be corrected by deducting the illegal vote.” [10 Am. and Eng. Ency. of Law (2 Ed.), p. 829.]
“Where ballots are preserved, so that their identity is assured, and they can be counted during a contest, they are undoubtedly better evidence of the vote cast than the returns, and should prevail where there is a difference.....Before a recount of ballots should be allowed to rebut the presumption of the correctness of the official returns, it should be proved satisfactorily that the ballots have not been tampered with since the election, and that those offered in evidence are the identical ones cast.....Where the statute provides that the ballots shall be kept in a certain way, and they are in the hands of the proper officer, it is presumed that he has done
“The presumption of good faith on the part of the election officers may be rebutted, and when it is shown that they are parties to fraud, the value of the returns as evidence is destroyed; and the fact that a much larger number of votes is returned than the poll book shows to have been cast, will be a circumstance tending to prove fraud. Where the number is large and the fact is unexplained, it will be conclusive.....Where fraud is proved, it will be presumed to be for the benefit of the party having a majority in such' district, especially if the officers of election are of the party in whose favor such a majority is returned.” [Ibid, pp. 832 and 833.]
These general principles, so clearly stated by the authority quoted from, are, as is generally the case, not only fully supported by the cases cited in the notes to the text, but are also found announced in the following cases: Hendee v. Haden, 60 N. W. Rep. 1034; Furguson v. Henry, 95 Iowa 439; Tebbe v. Smith, 108 Cal. l. c. 107.
In the case last cited the Supreme Court of California tersely and aptly said:
“The principles of law and the rules of evidence governing cases such as this, have been so often declared that a review of the many authorities is unnecessary. Those curious or interested in pursuing tbe subject will find in the*68 reporter’s notes, preceding, many instructive cases collated by tbe industry of counsel. Suffice it here to say, that while the ballots are the best evidence of the manner in which the electors have voted, being silent witnesses which can neither err nor lie, they are the best evidence only when their integrity can be satisfactorily established. One who relies, therefore, upon overcoming the prima facie correctness of the official canvass by a resort to the ballots must first show that the ballots, as presented to the court, are intact and genuine. Where a mode of preservation is enjoined by the statute, proof must be made of a substantial compliance with the requirements of that mode. But such requirements are construed as directory merely, the object looked to being the preservation inviolate of the ballots. If this is established it would be manifestly unjust to reject them merely because the precise mode of reaching it had not been followed.
“So, too, when a substantial compliance with the provisions of the statute has been shown, the burden of proof shifts to the conteste© of establishing that, notwithstanding this compliance, the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place. But this proof is not made by a naked showing that it was possible for one to have molested them. The law can not guard against a mere possibility, and no judgment of any of its courts is ever rendered upon one.
“When all this has been said it remains to be added that the question is one of fact, to be determined, in the first instance, by the jury or trial judge; and, while the ballots should be admitted only after clear and satisfactory evidence of their integrity, yet, when they have been admitted, this court will not disturb the ruling, unless we in turn are as well satisfied that the evidence does not warrant it.”
“Where, as is the case in several of the States, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe keeping of such ballots, must be followed with great care. The danger that after the count is made known (especially if the vote is very close) the ballots may be tampered with, is so great, that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law, from the time of the original official count, until they are produced before the proper court or officer, and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and 'improper place, they can not be offered to overcome the official count. [See Gooding v. Wilson, 42nd Congress; Butler v. Lehman, 1 Bartlett, 354; Kline v. Verree, Ibid., page 381.] In Butler v. Lehman the House of Representatives, after a full discussion, sustained the minority of the committee in rejecting a recount, upon the ground that the ballot boxes had not been so kept as to rebut a reasonable presumption that they had been tampered with. Hpon this subject see Hudson v. Salmon, 19 Kan. 177.”
In the case at bar the official returns gave the contestee a majority of ten votes. The second recount gave him a majority of ninety-one votes. The contestee introduced evidence tending to show that the ballots had been faithfully kept and had not been tampered with. But the contestant called thirty witnesses, whose testimony stands uncontradicted and the witnesses unimpeached, who swore that when they
It is therefore incomprehensible and incredible that their ballots were scratched by the election judges and clerks. They must have been altered after they left the hands of the election officers. This evidence stands uncontradicted. As against it there is the testimony introduced by the contestee that he faithfully guarded the ballots after they came into his possession and that they were not tampered with, but all of them remained sealed in the sacks and the sacks nailed up in the boxes, except as to those from Edith precinct, and as pointed out the recount showed no change as to them. On the one side, therefore, is the direct testimony of the thirty persons who cast the ballots, supported by the official returns of the judges and clerks of election, showing that the ballots had been changed, and on the other is the testimony of the contestee and his deputies who had charge of the ballots after the election to the effect that they had not been changed. The change was in the interest of the contestee. The recount showed no change beneficial to the contestant except one vote in Jasper township. The minds of fair-minded men can not reasonably differ upon such testimony. But if a doubt can be said to still hover around the case as to when the change was made, the presumption of law turns the scales, for the fraud being proved, the law presumes it “to be for the benefit of the party having the majority in such district, especially if the officers of election are of a party in whose favor such a majority is returned.” [10 Am. and Eng. Ency. of Law, p. 833.] Here the officer in whose favor the change enures was himself in the legal charge of the ballots
The fact thus appears unanswerably that the ballots were tampered with after the ballots left the hands of the judges and clerks of election. There is no 'evidence showing that the contestee did it himself or knowingly permitted it to be done. But it was done. Ordinarily this court will not weigh conflicting evidence in actions at law, nor interfere with a finding of fact by a jury or the trial court, if there is any substantial evidence to support the finding. In this case, however, to permit this rule of practice to stand in the way of discovering and denouncing a fraud upon the elective franchise would be a mockery of justice. That the ballots were changed is not contradicted. It matters not, then, who changed them, or when they were changed. As they now are, they are not true exponents of the will of the voters. Their authenticity, integrity and probative force are gone. They can not overcome the prima facie facts shown on the face of the returns made by the judges and clerks of election. Those returns showed a majority of ten- for contestee. The ballots, after being tampered with, showed a majority for contestee of ninety-one votes. The recount showed that the judges and clerks had made a mistake of one vote against contestant. The ballots on the recount showed, conceding they had not been tampered with, that the judges and clerks had made a mistake of eighty-two' votes against the contestee. There were 2422 votes returned by the judges and clerks as having been voted, that is, for-contestant, 1179, for contestee, 1189, not voting for the office, 54. The recount-reduced the votes for contestant from 1179 to 1120, a difference of 59, -and increased the vote for contestee from 1189 to 1211, a difference of 22, and also increased the number of persons who did not vote from 54 to 91, a difference of 37.
The trial court therefore erred in finding that the ballots were not tampered with and changed by some one, it is immaterial who did) it, after they left the hands of the judges and clerks of election.
This leaves the case in this shape. The ballots can not be looked to. The official returns gave the eontestee a major
Analytically stated this contention amounts to this: Eighty-two votes out of 1211 are shown by the recount to have been fraudulent, the whole 1211 votes must be thrown out, or because the fraud of some one has disfranchised or frustrated the will of -eighty-two voters, the court must disfranchise or frustrate the will of the other eleven hundred and nine voters who voted' for the contestee and whose votes a-re not successfully challenged.
Such a ruling by the court would be without any precedent in the law to which our attention has been directed or which w-e are aware of. The rules of law hereinbefore set
The contention of contestant that the whole vote for the contestee must be thrown out, which is the whole case made by the contestant before this court, is untenable. The result is that the circuit court erred in finding the fact to be that the ballots had not been- tampered with, but it also erred; in giving the two instructions asked by the contestant and herein set-out, declaring that a partial fraud vitiated the whole vote for the contestee.
On the recount the ballots cast were examined and compared with the poll books, and a report made to the court of the result. In this way it was disclosed how every voter in Camden county voted, and the secrecy of the ballot was destroyed. No objection was made to this proceeding by either party and therefore the legality of the proceeding is not open to review in this case. But I can not permit the fact to pass unnoticed. In my judgment there is no law in this State that permits such a practice. The Constitution (sec. 3, art. 8) provides that all elections shall be by ballot,
Judge McCrary in his work on Elections (4 Ed.), see. 488, says: “The chief reason for the general adoption of the ballot in this country is, that it affords the voter the means of preserving the sgcrecy- 'of his vote, thus enabling him to vote independently and freely, without being subject to be overawed, intimidated, or in any manner controlled by others, and protects him from any ill-will or persecution on account of his vote. The secret ballot is justly regarded as an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and station may be supposed to exercise. And it is for this reason that the privacy is held not to be limited to the moment of depositing the ballot, but is sacredly guarded by the law for all time unless the voter himself shall voluntarily divulge it.”
The preservation of the secrecy of the ballot is, in my judgment, of more vital necessity to the independence of the .voters and to the perpetuity of our system of government,
The judgment of the circuit court, though proceeding on erroneous principles, is for the right party, as the case is presented by this record, an'd it is therefore affirmed.