State ex rel. Van Ryn v. Horan

WiNslow, J. There is but one serious question in this case, and that is whether the municipal ballots found in the judicial box should be counted. The circuit court found, as the evidence abundantly showed, that these were ballots duly cast, but deposited by mistake, inadvertence, or otherwise, by the inspectors, in the judicial box. The question is, Shall the voters be deprived of their ballots by the mistake or fraud of the inspectors in so putting their ballots 96 in the wrong box? This question must be answered in the negative. Judge McCeary well states the rule as follows: “It is a rule, well grounded in justice and reason and well established by authority and precedent, that the voter shall not be deprived of his rights as an elector, either by fraud or the mistake of the election officers, if it is possible to prevent it.” Am. Law Elec. § 131. The authorities also support this position. Parvin v. Wimberg, 130 Ind. 561; People ex rel. Hayes v. Bates, 11 Mich. 362. In this case it appeared that the number of judicial votes found in the municipal box was exactly the same as the number of municipal votes found in the judicial box, and that, if the judicial votes in the municipal box were added to the municipal votes found therein, the total number of votes substantially agreed with the poll list. The fact that they were legal votes put in the wrong box by fault of the inspectors was thus clearly demonstrated. There was sufficient evidence also to sustain the verdict and finding that the package of ballots from the first precinct had been tampered with. This fact being proven, it became of no value as evidence. Am. Law. Elec. §§ 277, 278; Albert v. Twohig, 35 Neb. 563. No other questions requiring discussion are presented by the record. Under the proof and findings the relator was clearly entitled to judgment. By the Court.— Judgment affirmed.