142 Ind. 375 | Ind. | 1895
The appellant and the appellee were opposing candidates at the November election in 1891, for the office of township trustee. Upon the face of the election returns, the appellant received 197 votes and the appellee 196 votes, the former being declared elected. The appellee, before the board of county commissioners, contested the election of the appellant and obtained the decision of said board that he, the appellee, had received the highest number of legal votes. From that decision this appellant appealed to the circuit court, where, upon a trial of the issue, it was adjudged that each of said candidates had received an equal- number of votes, and therefore that neither had been elected. The questions here -involved relate to the validity of ten disputed ballots, .nine of which were rejected by the election board of the east precinct and one was counted, in the west precinct, for the appellee. Of the nine rejected ballots,
To this point we have concurred with the trial court in concluding that upon the returns, adding the nine rejected ballots, each candidate had two hundred votes. It now remains but to determine whether the court erred in holding that the tenth ballot was not competent evidence, and whether the ballot was valid. The tally sheet of the west precinct was admitted in evidence. It contained a memorandum that five township ballots were mutilated and destroyed, but it contained no memorandum of disputed ballots. The appellant introduced in evidence the envelope in which the seals and alleged disputed ballots were contained. It was indorsed as follows:
“For marked, mutilated or otherwise defective ballots and seals of ballot packages, as required by section 52, election law.
“To the county clerk: This envelope contains the seals and one disputed ballot, marked: ‘ Mutilated or otherwise defective ballots. ’ The condition of seals of ballot packages, at the time of opening same, was good, as indicated by the inclosed seals.
“Aaron Shoemaker, Inspector,
‘Clarksville Precinct, West Wayne Township.”
It was further offered by the appellant to prove by said election clerk, by the clerk of the circuit court, and by the county auditor, that the envelope containing said ballot and the seals had been regularly deposited by the election inspector, with the county clerk, and had passed to the auditor, and had come to the lower court at the trial, from the auditor’, and that the ballot offered on the trial was the ballot considered by the election board. This offer was objected to by the appellee and the objections sustained. The ballot in.question was then offered in evidence, and was rejected by the court. It was so stamped as to constitute a vote for the appellee, but, besides one or two very delicate lines from imperfections in the paper, or made with a pencil, it showed, within one of the large squares, a distinct marking, as with a pencil, about one-fourth of an inch in width and about five-sixteenths of an inch in length. This latter marking would constitute a distinguishing mark, within the rule already announced, and would render the ballot invalid. Questions are discussed as to the sufficiency of the inspector’s certificate of the alleged dis
It is provided by statute (R. S. 1894, section 6248 ; Elliott Sup., 1374) that “Any ballot which shall bear any distinguishing mark or mutilation shall be void and shall not be counted : * * Provided, however, that on protest of any' member of the board such ballot and all disputed ballots shall be preserved by the inspector, and at the close of the count placed with the seals of the ballot packages in paper bags, securely sealed, and so delivered to the clerk of the county with notification to him of the number of ballots so placed in such bags, and of the condition of the, seals of the ballot packages. The poll clerk shall also record on the tally-sheets, memoranda of such ballots and the condition * * of the ballot packages, and in any contest of election such ballots and seals may be submitted in evidence. ”
Besides the declaration of the invalidity of certain ballots,, this statute provides a method of securely preserving such ballots for evidence in contests. The ballot in question wg¡s void, and should not have been counted for the appellee. In counting it the board violated a mandatory provision of the statute. By counting it for the appellee he would be given an office to which he was not elected by a majority of the legal votes cast, and the appellant would be deprived of an office to which he was elected by a majority of the legal votes. This result, it is contended, must prevail because of the failure, innocently we must presume, of the poll clerk to record on the tally sheets a memorandum of such ballot. If this result may be enforced, the legal choice of the voters of a precinct may be
That the disputed ballot shall not be destroyed, but shall be preserved for judicial investigation, is a duty primarily resting upon the inspector. He takes charge of it, places it in the bags with the seals, securely seals the bag, indorses upon that a notification to the county clerk of the number of ballots it contains, and then delivers the bag to said clerk. The memorandum which the poll clerk is required to make answers as a check, to some extent, upon the inspector and the county clerk against substituting other ballots for any that may be disputed. The seals upon the bag aid the inspector in detecting any change of the ballots after they have passed out of his hands. These are precautionary measures, and do not deny a resort to parol evidence to support or deny the genuineness of the ballots in dispute. The fact that a ballot is returned, and is not destroyed by burning, corroborates-the theory of a dispute as to its validity. If one is returned, there is no provision of the statute denying the resort to parol evidence that it is not genuine, but is one which has been substituted for that which was really in dispute. These considerations lead to the conclusion that the Legislature did not intend that the requirement that the poll clerk should record on the tally sheet a memorandum of the disputed ballots should be mandatory. The conclusion reached by this court in Parvin v. Wimberg, 130 Ind. 561 (15 L. R. A. 775), a case involving provisions of this present election law, was that, ‘ If a statute simply provide that certain things shall be done within a particular time or in a particular manner, and does not
While the provision in question was designed to be followed by poll clerks, it was not, in our opinion, intended that a failure to do so should deny inquiry into the validity of ballots returned by the inspector, though it should involve the responsibility of the officer who neglects his sworn duty. .We conclude, therefore, that, prima facie, the ballot was admissible in evidence, and its genuineness was open to inquiry upon parol evidence.
Appellee’s learned counsel have made the question that the evidence is not in the record, because the longhand manuscript of the stenographic report of the evidence contains the original ballots and not transcriptions thereof. This question has been decided against the contention of counsel, in the case of Indiana, etc., R. W. Co. v. Quick, 109 Ind. 295, where it'was said : “The longhand report of the evidence before us is not, and does not purport to be, a transcript of the evidence introduced at the trial. It is, under section 4010, R. S. 1881, an original manuscript or document incorporated in the bill of exceptions. It follows that original papers read in evidence, and accompanying and properly identified by such longhand report, may be treated in this court as embraced within, and constituting a part of it. The exhibits in question are, consequently, before us as a part of the evidence, ” etc.
It may be further suggested that in the present case the original ballots were, by order of the lower court, duly entered of record, made a part of the record, and were embodied in the longhand manuscript of the evidence.
For the error suggested, the judgment of the circuit
Note.' — The authorities upon the effect of marks or devises to distinguish ballots are found in a note to Rutledge v. Crawford (Cal.), 13 L. R. A. 761, and in the later cases of Tebbe v. Smith (Cal.), 29 L. R. A. 673, and Dennis v. Caughlin (Nev.), 29 L. R. A, 731, and cases referred to in foot note thereto.