Moorhead v. Arnold

— 141 — The opinion of the court was delivered by Burch, J.: In the second volume of Wigmore on Evidence, at page 1345, it is said that the law “assumes the objectivity of external nature; and,.for the purposes of judicial investigation, a thing perceived by the tribunal as existing does exist.” On the following page of the same work it is further stated: “There is always a question as to the relevancy of a circumstance, or the qualifications of a witness; there can never be a question as to the relevancy of the thing itself, autoptically produced. Add to this that, since either sort of evidence, testimonial or circumstantial, is one step removed from the thing itself to be proved, the production of the thing itself would seem to be the most natural and efficient process of proof. If the question is whether a shoe is fastened by laces or by buttons, the testimony of one who has seen the shoe or the circumstance that a button has fallen from the shoe can at least be no more satisfactory than the inspection of the shoe in court. Accordingly, it might be asserted, a priori, that where the existence or the external quality or condition of a material object are in issue or are relevant to the issue, the inspection of the thing itself, produced before the tribunal, is always proper, provided no specific reason of policy or privilege bears decidedly to the contrary. Such ought to be, and such apparently is, the principle accepted by the courts.” (2 Wig. Ev. § 1151.) In one of the cases cited in support of this text .it was said: “There can be no objection to the other finding, to wit, ‘that the plaintiff Nanny is. a white woman.’ The j ury find this fact upon their own knowledge — in other words, by inspection. Was this improper ? . . • . If the plaintiff Nanny had not been before the jury, they must have found their verdict upon the testimony of others, which would have amounted only to a probability. But here, they have the highest evidence, the evidence of their own senses.” (Hook v. Pagee, 2 Munf. [Va.] 379, 384.) This court has gone far enough to uphold a verdict for damages in a railroad right-of-way case for the — 142 — expense of constructing and maintaining farm crossings although there was no evidence of the necessity of such crossings except the jury’s view of the land. (K. C. & S. W. Rld. Co. v. Baird, 41 Kan. 69, 21 Pac. 227.) These authorities control the decision of the first question presented. There is no dispute concerning the manner in which the election board of Americus township disposed of the ballots cast in that precinct as they were counted and after they were counted. There is ample evidence to sustain the finding of the contest court in reference to the manner in which the ballots were kept and exposed after they were returned to the county clerk and before they were brought into court. The members of the contest court needed no witnesses to tell them what they saw when the gunny-sack containing th'e supposed ballots was brought before them, and when it was opened. The record is specific upon the point that they did inspect the sack and its contents at that time. However strange it may seem that the bag should have been tampered with, this court cannot contend with the judges of the contest court in reference to the report of their own senses. Therefore this court cannot declare to be unsupported an unequivocal finding that the receptacle in which the ballots were kept was fastened in a different manner from that in which it was sewed up and sealed by the election board, and that it contained matter which the election board did not place there. Besides, the finding under consideration is supported by the testimony of one of the attorneys for the contestee, and by an inference from the testimony of one of the election officials of Americus township, so that the rule, sometimes invoked, that evidence obtained by inspection must be supplemented by evidence capable of being embodied in a bill of exceptions, has been complied with. (See City of Topeka v. Martineau, 42 Kan. 387, 391, 22 Pac. 419, 5 L. R. A. 775.) The proceeding in this court is one in error. The facts cannot be retried here. Disputed evidence cannot — 143 — be weighed at all, and if an attempt were made to do so the most enlightening piece of information the contest court received — that afforded by an inspection of the bag and its contents — is unavailable. The facts found bring the case clearly within the rule announced by the authorities cited and relied upon by the contest court, and the rejection by that tribunal of the ballots offered by the contestor as primary evidence to establish his claim must be sustained. The evidence was clearly sufficient to warrant- the contest court in adopting the official returns as the next best evidence of the result of the election in Americus township, and its conduct in that respect is approved. The complaint that the question which was raised concerning the authenticity of the papers produced by the contestor as the ballots from Americus township is not referred to in the pleadings is clearly not ground for reversal. The objection was to the introduction of certain papers not the best evidence. The facts upon which the objection was based did not constitute a defense to the contestor’s claim, and would not have done so even if they had been stated in the answer. His causes of contest still might be true and easily provable, and certainly it is not permissible to plead in an answer facts merely as a foundation upon which to base objections to evidence which it is anticipated the moving party will use at the trial to sustain the allegations of his pleading. An answer subserves other purposes. Its function is limited to the definition of issues. In this case the issue was the number of lawful ballots that had been cast at an election and the number which each of two candidates had received. The burden of proving that he had a majority rested upon the contestor. He offered in support of his claim certain papers taken from a bag produced by the county clerk. Then the inevitable question arose, What were those papers, and what persuasive effect ought to be conceded to them under the law? If they were genuine — 144 — ballots they were important; if they were not genuine, or if they had been subjected to fraudulent manipulation, they possessed no evidential value. Therefore a preliminary investigation became essential in order to decide, not who was elected, but if this evidence tendered by the contestor in support of his claim could be admitted. This preliminary question was not different from innumerable others of analogous character constantly arising in the course of trials of questions of fact, and that it had no place in the pleadings, and no effect whatever to enlarge the issues, is too obvious to require further comment. It is said that the record fails to note a specific objection to the reception in evidence as genuine ballots of the papers produced as such. ^ The parties examined and cross-examined many witnesses and filled many pages of the record with testimony bearing upon the authenticity of the. returns from Americus township in all respects as if some serious question regarding them had arisen. The record bears internal indications that the contestor was fully aware of the point toward which the investigation tended. He introduced evidence which to the mind of this court strongly supported the proposition that the returns were uncorrupted. Even if the contestee interposed no objection the contest court was not obliged.to count spurious returns. The action of. that court was clearly described in its written findings, and accident and surprise are not argued as grounds for a new trial. Therefore the parties are bound in all respects as if the record contained the formal verbal expression which the contestor insists should have been employed. The objection that the contestee waived all questions relating to the identity and trustworthiness of the ballots from Americus township is not sustainable. If the same rule were applied to the contestor which he invokes against the contestee, the matter could not be considered. The objection of waiver now made was not urged upon the trial court. It is not necessary, — 145 — however, to rest a decision upon such narrow ground. The contestor makes no attempt to.show that he was injured by the reopening of the case. He asked for no delay, claimed no change in circumstance or modification of condition rendering the inquiry prejudicial, produced witnesses in his own behalf, and participated in the proceeding until he voluntarily rested. Nor is there any element of estoppel in the case. The contestor was not induced to give up any rights on account of what the contestee did. Besides this, the public had an interest in the contest which the rival claimants to the office could not barter away. Arnold and Moor-head could not bind the contest court by an arrangement that one of them should be elected by a canvass of unidentified returns, and the court was not obliged to rest under the imputation that its findings were based upon a count of illegitimate ballots. It had the right to demand the production of further evidence if it saw fit, and to open the proceedings for that purpose. Upon the suggestion to it of suspicious facts it was not only authorized, but was under obligation, to take the steps necessary to ascertain the truth. ■ The propriety of the court’s conduct in opening the case is not to be determined by the result of the hearing, and the contestor really has no substantial complaint to make except that the court found against what he believes to be the weight of the evidence. If his position upon that subject be correct, the record is such that under the established rules of law this court can grant no relief. Therefore, the judgment of the district court is affirfiied. All the Justices concurring.