Struss v. Johnson

JUDGE PAYNTER delivered the opinion of tiie court: The appellant, H. C. Struss, and the appellee, William P. Johnson, were candidates for the office of clerk of the Jefferson County Court at the November election, 1894. Johnson’s majority was 210, as appeared from the returns of the election officers of the various precincts. — 322 — Struss instituted this contest, and claims there were enough legal ballots cast for him, which were not counted by the election officers, to elect him. There were several hundred ballots placed loosely or unsealed, and without indorsement on the ballots or otherwise, in the ballot boxes by the election officers. When they completed the count in their respective precincts the ballot boxes were locked and delivered to the clerk of the Jefferson County Court. There were other ballots, properly sealed and endorsed by the election officers, which were also placed in the ballot boxes and returned to the clerk of the county court. There were not enough of the latter class of ballots returned to overcome the majority which had been returned for Johnson. The contestant introduced an election officer or an inspector at the precincts from which the loose or unsealed and unendorsed ballots were returned to prove they were not counted by the election officers. The question to be determined is as to whether the ballots should have been counted which were placed unsealed in the ballot boxes, unaccompanied by a true statement by the officers of election as to whether they had or had not been counted; and, if counted, what part, and for whom. A solution of this question depends upon a proper interpretation of the election law. Section 1482 of the Kentucky Statutes provides: “When the polls are closed tbe officers of election shall, in the voting room, immediately count the votes and certify the same as hereinafter provided; and no ad — 323 — journment shall be had until the same is completed. When the result of the ballot is ascertained it shall be immediately announced by one of the judges in front of the voting room, and thereupon the judges shall, in the presence of the clerk, sheriff and the inspectors, providedforin the preceding section, destroytheballots voted, mutilated or spoiled and the ballots remaining unvoted: Provided, That if there are any ballots cast and counted, or left uncounted, concerning the legality or regularity of which there is any doubt or difference of opinion in the minds of the judges of election, said ballots shall not be destroyed, but sealed up and returned to the clerk of the county court, with the returns of the election, for such judicial or other investigation as may be necessary, with a true statement as to whether they have or have not been counted; and, if counted, what part and for whom.” And section 1483 provides: “The form of the return to be made on the inside of the cover of the stub-book shall be substantially as follows: State of Kentucky, -county, election held on the-day of- —, eighteen -, in - precinct. Number of ballots counted as valid, -; number of ballots questioned or rejected, -; number of ballots marked ‘spoiled/ -; whole number of ballots cast,-; number of votes received for governor,— _by-; number of votes received for lieutenant-governor, -by-(and so for other State and county offices); number of votes on question of — -, voted yes,-; voted no,-. — 324 — “We, the judges, sheriff and clerk of election at the precinct above mentioned, certify that the above is a correct return of the election held therein on the day aforesaid. “--, Judge, “--, Judge, “-■-, Clerk, “- -, Sheriff.” Until the adoption of the present Constitution there was no law in this State providing for an official and secret ballot. The legislation which followed the adoption of the Constitution prescribed the kind of ballots to be used, and surrounded the elector with such safeguards as the wisdom of the General Assembly could devise to render it impossible for any one to know for whom he had cast his ballot. The purpose was to place him beyond the control or influence of any one, that he might vote without the fear of social or political ostracism or of suffering loss in his business, profession or calling. The General Assembly also had under consideration the best method of conducting and ascertaining the result of the election. It knew that frauds frequently followed the casting of the ballots, and by that means the result of the election was often changed. The question arose as to what were the best means to be employed to prevent the perpetration of frauds after the ballots had been cast. By the provisions of section 1482, when the polls close, the officers of election shall, in the voting room, — 325 — immediately count the votes, and certify the same as provided in section 1483, and this shall be done before an adjournment takes place. There must be a public announcement made by one of the judges of the result as ascertained. When this is done the judges, in the presence of the clerk, sheriff and the inspectors, shall destroy the ballots voted, mutilated or spoiled, and the ballots remaining unvoted. If there are any ballots cast and counted, or left uncounted, concerning the legality or regularity of which there is any doubt or difference of opinion in the minds of the judges of election, such ballots shall not be destroyed, but be sealed up and returned to the clerk of the county court with the returns of the election, for such judicial or other investigation, as might be necessary, but they should be accompanied with “a true statement as to whether they have or have not been counted; and, if counted, what part and for whom.” The law authorizes political parties to be represented by inspectors at the count made by the officers of election. As great authority had been vested in the officers of election the law-making power deemed it wise that they should immediately ascertain, certify and publicly declare the result of the election. The law provides that the ballots which were cast (except those heretofore mentioned) should be destroyed. The General Assembly did not believe it was wise to preserve them, as had been theretofore done under the law, because they were admissible as — 326 — evidence to affect the returns of the officers of election. It did not intend that they should be used as evidence, as it was possible for the ballots to be changed in the box after the election, and thus, in some instances,, overturn the result of the election as certified by the officers. The law requires that the ballots remaining unvoted should be destroyed because it removed the possibility of any one using them for the purpose of stuffing a ballot box or substituting them for those which the law required should be returned sealed, etc., to the county court clerk. The General Assembly deemed it proper to preserve, for judicial or other investigation, the ballots cast and counted oi’ left uncounted, concerning the legality or regularity of which there was any doubt or difference of opinion in the minds of the judges of election. It knew if these ballots were preserved in the manner in which they had been preserved under the laws of this and other States that a possibility still existed for the fraudulent substitution of ballots, and thus impeach the returns of the officers of election. It, therefore, provided the method for preserving, certifying and returning them, which rendered the successful substitution of ballots therefor almost if not entirely impossible. If we hold that the ballots which the officers of election placed unsealed in the ballot boxes, and without the statement from the officers of election, which the law requires, as to whether they have or have not been counted, and, if counted, what part and for whom, — 327 — then we render possible the evil of the fraudulent substitution of ballots which the General Assembly manifestly attempted to guard against by providing for the destruction of all ballots which were cast or spoiled or unvoted. It is just as easy to make such fraudulent substitution when the class of ballots in question are returned in the manner in which they were in this case as it would be were all the ballots which Avere cast preserved and returned. Without the statement required by the statute there is no official evidence or certificate to show whether the ballots have or have not been counted. We held in Houston v. Steele, 98 Ky., 596, in effect, when the questioned or doubtful ballots were sealed up and returned as the law provides, the word “returns,” as used in the statute, includes the undestroyed ballots. To hold that that part of the statute requiring the sealing up of the doubtful or questioned ballots, and a statement of the officers of the election as to whether. they have been counted, etc., is directory, is to sweep away the safeguard which the law places around the returns of the officers of election. To hold it is mandatory, in the particular indicated, we follow the man-. ifest purpose of the law-making power, Avhich was to prescribe how doubtful or questioned ballots should be preserved and returned for “such judicial or other inA’estigation as may be necessary.” To render the doubtful or questioned ballots admissible as evidence in a judicial or other investigation, — 328 — we are of the opinion that they must be sealed and returned with the statement of the officers of election, as required by the statute. This view is nowise in conflict with the case of Broaddus v. Mason, 95 Ky., 421. There was no question in that case as to the extent ballots were admissible as evidence but the question was as to the competency of parol evidence to show the officers of the election had made a mistake in adding the votes together after they had been counted. In that case the mistake was shown by the tally sheet and corroborated by the officers of election. The conclusion which we have reached renders it unnecessary to consider other questions raised by appellant and appellee. It would be unprofitable to review the many authorities cited by counsel because, in our opinion, the policy of admitting ballots as evidence to impeach or change the returns of the officers of election has been reversed by the law-making power, and when it provided for the preservation of a particular class of ballots- — a small number compared to the entire number cast — it prescribed a statutory rule to regulate the admission of such ballots as evidence. Judgment affirmed. Judge Guffy dissenting, and Judge DuRelle not sitting.