Viel v. Summers

RICE, C. J. Appellant and respondent were Democratic and Republican candidates respectively for the office of county commissioner of Lemhi county at the election in 1920. On the face of the returns respondent had a majority of twenty-five votes, and was given the certificate of election. Appellant brought this contest on the ground that the said election returns were false, in that through the malconduct of the judges of election certain votes in Depot, Junction and Iron Creek precincts of said county which were east for him were unlawfully counted for respondent, and that such votes were sufficient in number to give him the election. On the argument in this court counsel for appellant abandoned the contest so far as Iron Creek and Junction precincts are concerned. - The case was tried before the court without a jury, and the ballot-boxes from said precincts were brought into court, — 186 — opened and the ballots examined by the court. The court found that while the ballot-boxes in said Depot precinct “were in the constructive possession of one of the election judges for over four months, the same were not in his actual possession for much of said time, and that while in his custody, they were exposed to the reach of unauthorized persons, and that during said time they were changed and tampered with to an extent that makes them unreliable as evidence and they do not express the intentions of the voters of said Depot precinct; and have no probative force.” It was also found that the office where the ballot-box was kept was on the ground floor of the principal street of said city of Salmon; that said ballot-box was unsealed and reasonable opportunity given for the tampering with said ballot-box and the votes therein; that after said ballot-box was taken into the custody of the sheriff it was placed in a vault in the sheriff’s office, the door of which remained unlocked for the larger part of the time, and ofttimes there was no person in charge of the office when people frequently went there to transact business with the sheriff; that heavy election bets were depending on the outcome of this ease; that said ballot-box was locked with a flimsy common padlock and had a slit in the top of considerable size. Judgment was rendered for the contestee, who is respondent here, and the contestant appealed. He assigns errors in part as follows: 1. The court erred in admitting in evidence the statements of the election officers as to the manner of counting the ballots, and for the purpose of bolstering up their returns of election in the Depot precinct, as the ballots themselves were and are the best evidence of the number of votes cast at the said election. 2. The court erred in admitting in evidence, over the objections of the contestant, the returns of election in the Depot precinct for the .purpose of showing that the vote was other than is shown by the ballots themselves in the said precinct, the ballots having been shown to have been safely — 187 — kept, and in the same condition as when locked in the ballot-box the night of the election and placed in the possession of one of the judges of the election. 3. The court erred in finding that “heavy election bets were depending upon the outcome of this case,” as the evidence does not support such finding. 4. The court erred in finding that “while these ballots of Depot precinct were in the constructive possession of one of the election judges for over four months, the same were not in his actual possession for much of said time, and that while in his custody, they were exposed to the reach of unauthorized persons, and that during said time they were changed and tampered with to an extent that makes them unreliable as evidence and they do not express the intentions of the voters of said Depot precinct; and have no probative force.” 5. The court erred in finding that “the positive testimony of the election officials constitutes the best evidence as to the intentions of the voters of said Depot precinct, and an inspection of the ballots shows that at the time of their examination by the court, they were not in the same condition as when cast by the voters, there being a difference between the count made by the court and the election jtidges respectively of fifty-four votes, and no evidence of fraud on the part of the election officers. It is further found that on the counting of the votes for other candidates other than that for commissioner of the first district, that the votes practically correspond with the returns made by the election judges.” 6. The court erred in finding that “the contestant has failed to prove the specific charges in his complaint.” 7. The court erred in making finding VIII to the effect that the contestee received 1,057 votes and the contestant received 1,032 votes at said election, the said finding being contrary to the evidence and the conclusion that the said contestee was elected was and is erroneous and contrary to law and the evidence in the case. The appellant also assigns as error the making of the conclusions of law that the returns of the officers at said election — 188 — in the various precincts of Lemhi county constitute the best evidence as to the number of votes received by appellant and respondent; that respondent was duly elected a commissioner of said county at the election held in November, 1920, and is entitled to hold said office. The evidence shows without -dispute that early on the morning following the election the ballot-box containing the ballots cast in Depot precinct was locked and taken by Percy Anderson, one of the counting judges, and John C. Dryer, one of the election judges of said precinct, to the office of said Dryer in Salmon, the county seat of said county; that said ballot-box was left in the front room of said office for a brief time and was then placed in the back room of said office, where it remained until some time after this suit was brought; that there is a back door to the room where said ballot-box was kept, which was usually kept locked; that a curtain hangs over the opening between the front and back rooms of said office building; that the front door of said office building is locked at night but is usually unlocked during the day time and that frequently the proprietor is away for a considerable length of time with no one left in charge. This action was commenced November 26, 1920, and on February 24, 1921, on motion of appellant, the district judge of said district made an order directing-the sheriff of Lemhi county to take into his custody and safely keep said ballot-box until the next regular term of court, which was to begin March 31, 1921. C. S., sec. 7291, provides for such an order. In obedience to said order the sheriff took said ballot-box from Mr. Dryer and kept it in his custody until it was brought into court. While it will not be necessary to review at length all of the assignments of error, it will be well to discuss briefly several of them, particularly those that affect the value of ballots as evidence. The testimony of the election officers was properly admitted, not for the purpose of bolstering up the returns of election in Depot precinct, but for the purpose — 189 — of enlightening the court as to the manner in which the election was conducted and the count of the ballots made, in order that the court from this and all other evidence introduced might determine whether or not the ballots were miscounted as claimed by appellant. So far as the second assignment is concerned it is sufficient- to say that appellant introduced the election returns from Depot precinct and therefore he has no right to complain thereof. The finding of the court that heavy election bets were depending on the outcome of this ease is wholly without the support of competent evidence. Nothing appears in the record to support this finding except the testimony of some witnesses that they had heard of bets being made on the contest between the parties to this action, but there is no showing that such bets, even if they were made, have any connection whatever with this action. So, also, is the finding that the office where the ballot-box was kept was “on the ground floor on the principal street of said city of Salmon” entirely without evidence to support it. It is the contention of appellant that the ballots cast in Depot precinct came into court in exactly the same condition as they were when they were cast by the voters and counted at the election in said precinct. If this is true, unquestionably such ballots afford the very best evidence that can be had as to how the voters of that precinct voted. While the evidence does not show that the ballot-box of said precinct received the greatest possible care from the day. after the election until it was turned over to the sheriff, we are inclined to the view that the care shown may be considered a reasonable and substantial compliance with the law governing this matter. Though the situation in and about Mr. Dryer’s office was such that persons so disposed might have opened this box, there is no direct testimony that it was opened; that anybody ever attempted to open it, or even that any person other than Mr. Dryer was ever in the office from the time that the ballot-box was placed there until it — 190 — was taken by the sheriff. The evidence does not show just what care it had further than that it was in the back room, which was not really a part of his office. It might have been covered up or hidden away there so that no one entering that room would discover, without search, that the ballot-box was there. It is true that the box was not sealed and that there is a slit in the top of it four and three-fourths inches long, and three-eighths of an inch wide. While this aperture should have been sealed up, we do not think the failure to comply with this provision of the election law would necessitate the conclusion that the ballots were thereby discredited. The same may be said as to the care of the ballots after they were passed into the hands of the sheriff. He appears to have exercised reasonable care and there is no probability, so far as the record shows, that they were tampered with while they were in his custody. It has been held that in order to destroy the value of ballots as evidence something more must be shown than that there is a possibility that they might have been altered. (Tebbe v. Smith, 108 Cal. 101, 49 Am. St. 68, 41 Pac. 454, 29 L. R. A. 673; Averyt v. Williams, 8 Ariz. 355, 76 Pac. 463; Wheeler v. Lawrence, 78 Kan. 878, 99 Pac. 228; Hudson v. Solomon, 19 Kan. 177.) “So much depends upon the terms of the particular statute to be construed, that it is impossible to lay down a general rule applicable to all cases; but the better opinion seems to be that if the deviation from the statutory requirements relative to the manner of preserving the ballots has been such -as necessarily to expose them to the public or unauthorized persons, the court should exclude them; but if the deviations have been slight, or of such a character as not necessarily to render doubtful the identity of the ballots, the question of their identity may well go to the jury to be determined upon all the evidence.” (McCrary on Elections, 4th ed., sec. 473, p. 347.) “Although the general rule is that the ballots themselves are the best evidence of the number of votes cast, and for — 191 — whom cast, yet this rule can have no application to a case where the ballots have been tampered with after they were deposited in the ballot-box. In such a case the value of the ballots as evidence is almost totally destroyed, and the returns made by the officers of election presiding at the polls may become better evidence than the ballots.” (McCrary on Elections, 4th ed., see. 474, p. 348.) There is no direct evidence in the recoid tending to show that any alteration whatever was made in these ballots from the time they were placed in the box at the election to the time when the box was opened in court. There is evidence, however, which, if true, would lead to the conclusion that the ballot-box had been opened in some unauthorized manner and some of the ballots changed during that time, and it must be upon this evidence mainly that the court based the finding that the ballots, when opened in court, were not in the same condition as when east by the voters. Percy Anderson, one of the counting judges, testified that when the ballots were counted by him and the other counting judges there were at least twenty-five ballots marked with a cross at the head of the Republican ticket, a cross after the name of appellant Viel, and the name of respondent Sum mers not stricken out. This statement is not specifically corroborated by the other counting judges, neither is it disputed. Mrs. Cecil Mulkey, one of the counting judges, in answer to the question as to whether there were “quite a number of such ballots,” answered, “Yes, I would say a number.” Only two of such ballots are found in the exhibits certified to this court. The testimony of witness Anderson is not of a character to seriously impeach the veracity of the ballots. Upon direct examination he testified that at least twenty-five ballots were marked with a cross at the head of the Republican ticket, and a cross put opposite the name of Viel, with the name of Summers scratched out. Upon cross-examination he testified that there were at least twenty-five ballots marked with a cross in the circle at the head of the Republican ticket, and also — 192 — marked with a cross after the name of contestant Viel, the name of Summers not being crossed or scratched. He testified that his recollection of the matter was due to the fact that the day following the election he had had a conversation about the condition of the ballots generally, not particularly with reference to Mr. Viel and Mr. Summers. The ballots of this precinct have been certified to this court as an exhibit. An inspection of them discloses that there were fifty or more so-called mixed ballots on which a cross was placed after the name of Viel, the name of Summers not being scratched, but which were not marked in the circle at the head of the Republican ticket. These ballots may have attracted Mr. Anderson’s attention. Of the ballots certified to this court, only fifty-six are marked with a cross in the circle at the head of the Republican ticket. Of these, thirty-two were straight Republican ballots marked with a cross in the circle at the head of the ticket. There is not a single erasure. In order for the testimony of Mr. Anderson to be true, it would have been necessary for someone to have opened the ballot-box, abstracted a number of the ballots and substituted others in their place. It would have been neees*sary to obtain the official stamp and other official ballots, and re-mark the substituted ballots. The ballots certified to this court have been carefully examined. They do not show the slightest evidence of having been tampered with. They bear on their face the evidence of their integrity. While it is possible that the change could have been made, the evidence in this ease is not sufficient to sustain the trial court in finding that during the time the ballots were in the possession of one of the election judges they were changed and tampered with and made unreliable as evidence. We think the ballots are unquestionably the best evidence in this case. So accepting them, the judgment must be reversed, with directions to enter judgment in favor of appellant. Costs awarded to appellant. Budge and McCarthy, JJ., concur.