Morris v. Vanlaningham

The opinion of the court was delivered by Valentine, J.: On the 7th of November 1871, at the general election held in Neosho county, W. H. Morris and R. J. Vanlaningham were voted for, for the office of register of deeds. On the Friday next following the election the county commissioners of said county canvassed the election returns, and declared W. H. Morris to have been duly elected to said office. Vanlaningham contested the election.- A court was organized according to law, (Gen. Stat., 424, §§ 85 to 105,) for the trial of said contest. The case was tried; the court made special findings of fact, and a majority of the court determined as a conclusion of law from said special findings of fact that said Morris was duly elected to said office. One of the members of said court however dissented from the conclusion of the majority; he believed that said Vanlaningham was duly elected to said office, and not Morris. Vanlaningham then took the .case to the district court of said county on petition in error. The district court reversed the judgment of the trial court, and declared Vanlaningham to have been duly elected to said office. Morris now brings the case to this court on petition in error, and asks this court to reverse the judgment of the district court. Many questions have been raised, some of which it will, not be necessary to notice at all; and others will require only a bare notice. The main question in the case is the one upon [277] which, the trial court differed. It is claimed by the plaintiff in error, that the court that tried this contest is not such a court as is authorized by the constitution. We think it is. (Steele v. Martin, 6 Kas., 430; Norton v. Graham, 7 Kas., 166.) It is also claimed that the “statement” of the contestant was not sufficient. W'e think it was. It seems to be claimed that the contents of lost election returns cannot be proved by parol evidence. We think they can, where that is the best evidence that can be obtained. Plaintiff in error offered to introduce certain evidence (that of B. M. Smith) which did not tend to prove or disprove any fact in issue in the case. Besides, there is nothing in the record which tends to show that the evidence would have been material upon any issue that could have been presented in such case. It does not tend to show that either party received more or less votes than were counted for him. It does not tend to show that any illegal vote was polled, or that any legal voter was prevented from voting. There is not even anything in the record tending to show which party received a majority of the votes of Tioga township, (and this evidence had reference solely to Tioga township,) or how many votes either party received in said township. We therefore think there was no substantial error in excluding this evidence. It was not error for the court to permit the contestant to introduce the records of elections in evidence, over and against any objection that could have been made by the contestee. The contestee however gave no reason why he objected. And even if there were error in the introduction of said evidence, the contestee waived the same by afterward introducing the same records as his own evidence, and generally for anything they might prove, and not specially for some pai’ticular purpose. Neither was it error for the trial court in their findings to correct the erroneous calculation of the county clerk, or the county commissioners. The evidence introduced on the trial was not absolutely harmonious in every respect, but it amply sustained the findings of fact of the trial court, so far as we can judge from what is given in the record. The contestee tendered by his answer [278] certain issues upon which the trial court made no specific findings. There was no evidence however introduced on the trial which tended to prove the allegations of the contestee’s answer in this respect, and the contestee did not ask to have specific findings made thereon. (Moore v. McIntosh, 6 Kas., 39.) The findings however that were made covered by general terms these issues, and really rendered more specific findings unnecessary. The trial court found the exact number of legal votes that each party received, and that was sufficient. It made no difference how many illegal votes were cast, as they were not counted. The court counted all the legal votes, and none but legal votes. This the findings sufficiently show, and this was sufficiently definite, certain, and specific for all the purposes of this case. It was a substantial finding upon all the issues presented by the contestee, and sufficiently definite. The findings of the court show the following irregularities which occurred in Grant township at said election: The polls of said election were closed at about the hour of noon, and remained closed for a period varying from an hour to an hour-and-a-half, and during this period the election board dispersed for dinner. Two of the election judges took the ballot-box with them to dinner, and kept it within their view during .that time. Just before the board adjourned for dinner, and immediately upon reassembling, the ballot-box was opened by one of the judges in the presence of the other members of the board for the purpose of ascertaining the number of ballots it contained. After the election was closed in the evening, and the poll-books properly made out, signed, etc., both poll-books, and all the ballots were handed to one of the judges of the election, who was also the township trustee of Grant township, and he was to take one of the poll-books and the ballots to the county clerk, and preserve the other poll-book in his office. Neither of the poll-books nor the ballots were “put under cover,” or sealed up, or directed to the county clerk. They were put into the ballot-box, open, and loose, and in that condition handed to said judge [279] of election and township trustee; and on the morning of the third day thereafter he lost them, and they have • never been found. Therefore no poll-book nor any of the ballots of Grant township were ever delivered to or received by the county clerk. Now it must be admitted that the closing of the polls at noon for an hour or more, was an irregularity. (Gen. Stat., 404, § 6.) The opening of the ballot-box before and after the adjournment for dinner, was also an irregularity. (Gen. Stat., 408, § 17.) . The failure of the judges of the election to “put under cover one of the poll-books, seal the same, and direct it to the county clerk,” was also an irregularity. (Gen. Stat., 410, § 26.) The failure of the judges of the election to carefully “envelope” all the ballots, and deliver them to the county clerk, was also an irregularity. (Gen. Stat., 410, §§ 26, 27.) And the loss of both the poll-books and all the ballots by said judge of election and township trustee, and his failure to deliver any of them to the county clerk, or to preserve one of the poll-books in his office, was a strange irregularity. But all of these are mere irregularities. No fraud was committed or attempted; no illegal vote was polled; and no legal voter was deprived of his vote. The utmost good faith characterized the whole of the proceedings, except possibly the loss of said poll-books and ballots. These mere irregularities cannot therefore vitiate the election either in Grant township, or in the county. The person who received the highest number of legal votes polled at said election was duly elected. The spirit of the election laws of this state is embodied in the following provision: “Section 29. In all elections for the choice of any officer, unless, it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to that office; and whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may [280] not be defeated by any informality of any officer.” (Gen. Stat., 411.) The findings of the trial court are sufficient to sustain the judgment of the district court. The judgment of the district court is therefore affirmed. All the Justices concurring.