Clanton v. Ryan

Mr. Justice Elliott delivered the opinion of the court. No extended argument is necessary to demonstrate that it was the design of the framers of our constitution that laws should be enacted whereby contested election cases might be thoroughly tried, and impartially and speedily determined. In a republic the people are sovereign, and their sovereignty is primarily expressed in the choice of those who are to exercise governmental powers. In monarchical governments it is regarded as one of the highest crimes to attempt to overthrow the authority of the reigning prince: As citizens of a free republic, we should at least be as loyal to our country and its institutions as the subjects of a monarchy are to theirs, and should regard any attempt to defeat the will of the sovereign people in the lawful exercise of the elective franchise as the highest crime against the state or nation. In the light of these fundamental truths, the obligation of every department of the government, and the duty of all good citizens, become clearly apparent. Stringent laws should be carefully enacted to secure fairness and prevent fraud in the conduct of elections; and such legislation should be liberally construed and rigidly enforced. Upon the faithful discharge of these duties and obligations depends the stability and perpetuity of our free institutions. By the act of 1885 (Sess. Laws, 193) it is provided that contested election cases of county officers, except county judges, shall by tried by the county judge or county court [423] of the proper county. The issues are required to be speedily made up, and the trial to be fixed for an early day; and in case of appeal the cause is to be taken direct to the supreme court, where it has precedence over ox’dixiaiy cases. Though we shall xiot uixdertake to notice all the assignments of error presented, yet, as certain questions of paramount public concern, and of great practical importance ixx the trial of electioxi coxxtests, are involved in the record, and have beexi fully argued by couxisel, we shall endeavor to give them due consideration. In our opinion Judge Hall was right in ruling that a trial of the contest might be had upon his accession to the bench, notwithstanding the term of Judge Phelps had expii’ed after the trial had commenced. Elections for county judges take place once in three years, but it is only once in six years that such elections occur simultaneously with the' general election of county officers. While county electioxx contests, if promptly proceeded with, may be concluded before the date when newly-elected couxxty officers are required to qualify, yet we see xio reason to suppose that the law relating to the trial of such contests was framed specially with reference to that event; and, if such trials axe not then concluded, there seems to be no reason why they should not be finished or retried afterwards. Public policy undoubtedly requires that election contests shall be tried as speedily as the rights of the parties and the ordexiy administration of justice will permit. Every citizen is, or should be, interested ixi having such contests determined according to the real choice of the lawful electors, as expressed at the polls, without regard to his individual preference. Section ll of the act of 1885, supra, provides that “the county judge trying such cause shall cause the testimony to be taken in full and filed in said cause.” Prom this language it is argued with much force that the xiew judge should have taken up the trial where the retiring judge [424] left it, and should have considered the evidence taken by his predecessor as substantive evidence in the cause. In view of the hardships resulting from mistrials which are liable to occur in cases of this kind, especially where a change of county judges follows a general election of county officers, we might be inclined to hold that such was the purpose and intent of requiring the testimony to be thus preserved, were it not that the very next sentence of the act requires that “ the trial of such causes shall be conducted according to the rules and practice of the county court in other cases.” By the words “other cases” must be understood ordinary civil actions. It certainly is not “according to the rules and practice” in the trial of ordinary civil actions before a court of record for one judge to hear the evidence, or a part thereof, orally, and then for another judge to render a finding and judgment upon such evidence, however perfectly the same may have been preserved. It is more probable that the object of requiring the testimony to be preserved was for convenient reference afterwards, or for use on appeal, or as a deposition in case a second trial should be had when witnesses should have died or removed from the county. From the allegations of the statement in this case, it appears that the contestant undertook to show that certain ballots cast by legal voters were either falsely counted, and so made the basis of a false return, or that they were surreptitiously changed or destroyed by some of the election officers, and other and different ballots substituted in their stead. To sustain these allegations, oral testimony, in connection with the ballots and the poll-lists, was competent evidence to be introduced at the trial. When the ballots and poll-lists are produced from the possession of the proper custodian, it is presumed, prima facie, that a ballot bearing the number opposite the name of an elector on the poll-list shows how such elector voted. When it is attempted to over [425] throw this prima facie presumption by oral evidence, it is important that the trial judge should have an opportunity to hear and see the living witnesses, if they can be produced, in order that be may the better pass upon their credibility and the weight of their evidence. Under the causes of contest set forth in the sworn statement of the contestor, a recount of the ballots in the precinct where error, mistake, fraud, malconduct or corruption was charged should have been ordered as a matter of course upon request of the complaining party. A mere recount does not involve any exposure of the secrecy of the ballot. Upon the production of evidence tending to show error, mistake, fraud, malconduct or corruption on the part of the election board, or any of its members, as charged, in the matter of receiving, numbering, depositing or canvassing the ballots, or other illegal or irregular conduct in respect thereto, an inspection and comparison of the ballots with the poll-lists should also have been allowed, in connection with the oral evidence in reference thereto. The secrecy of the ballot is not so important as its purity; and when, in a proper proceeding, there is evidence tending to show that the ballots of electors have been changed, tampered with or destroyed, either by mistake or by the fraudulent conduct of any member or members of the election board of any precinct, or any other person or persons, it is the right of the public, and of the electors themselves, as well as the candidates, to have such matters thoroughly investigated; and courts of justice, under such circumstances, should be swift and fearless to assist in all lawful and proper ways to ascertain the truth in respect to such charges, and to rectify as far as possible any and all wrongs, whether of mistake, negligence or crime, which may be proved to have been committed against the elective franchise. In an election contest proceeding such as this, the averment in the statement of contestor that he is “an elector [426] of the county” is a material averment (Act 1885, p. 197, § 14); and if denied by the answer, as in this case, it must be proved, or the contest as such must fail. Nov can the contestor, on appeal to this court, excuse the non-production of evidence in support of such averment, on the ground that competent evidence in support of other averments was offered and refused on the trial. The contestor having rested his cause in the court below without offering any evidence that he was an elector of the county, the contest was rightly dismissed, and the judgment is accordingly affirmed. Affirmed.