Averyt v. Williams

• Decision Date: 26 March 1904
• Docket Number: Civil 842
• Citation: 76 P. 463,8 Ariz. 355
• Parties: E. C. AVERYT, Defendant and Appellant, v. FRANK WILLIAMS, Plaintiff and Appellee
• Court: Arizona Supreme Court

76 P. 463

8 Ariz. 355

E. C. AVERYT, Defendant and Appellant, v. FRANK WILLIAMS, Plaintiff and Appellee

Civil No. 842

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

E. S Clark, for Appellant.

As between the ballots cast at an election and the canvass of these ballots by the election officers, the former are the primary and controlling evidence.

In order to continue the ballots as controlling evidence, it must appear that they have been preserved in the manner and by the officers prescribed by the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with. This is a rule as stated by Judge Brewer and cited with approbation in Illinois and several other states. Hudson v. Solomon, 19 Kan 177; Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018; Dooley v. Van Hohenstein, 170 Ill. 630, 49 N.E. 193; Kingery v. Berry, 94 Ill. 515; Cooley on Constitutional Limitations, 6th ed., 788; McCreary on Elections, 4th ed., par. 471; Murphy v. Battle, 155 Ill. 182, 49 N.E. 470; Beall v. Albert, 159 Ill 127, 42 N.E. 166; Catron v. Craw, 164 Ill. 20, 46 N.E. 3; Bonney v. Finch, 180 Ill. 133, 54 N.E. 318; Eggers v. Fox, 177 Ill. 185, 52 N.E. 269.

Henry T. Andrews, and Samuel L. Pattee, for Appellee.

That the ballots themselves are sufficient evidence, if properly admitted, to overthrow the returns of the canvassing board, and that no other evidence need be given, is well settled. Schneider v. Bray, 22 Nev. 272, 39 P. 326.

Statutory provisions as to the preservation of ballots are not mandatory, but merely directory. People v. Higgins, 3 Mich. 233, 61 Am. Dec. 491; Hughes v. Holman, 23 Or. 481, 32 P. 298.

OPINION

KENT, C.J.

The appellant and appellee were rival candidates for the office of city assessor and tax-collector of the city of Prescott. As a result of the election, the appellant was declared to have received six more votes than the appellee. The appellee having instituted statutory proceedings in the court below to contest the election, the court, on a recount of the ballots, found that the appellee had received ten more votes than the appellant, and entered judgment declaring that the appellee had been elected to the office. Upon the trial it appeared that certain provisions of the statute respecting the method of preserving the ballots had not been complied with, and the contestee, the appellant in this court, duly objected on that ground to the admission by the trial court of the ballots in evidence, and now by this appeal brings before us for review the action of the trial court in that respect.

Our statutes (Rev. Stats. Ariz. 1901, tit. 20, chap. 10) provide in detail the various steps to be taken in canvassing returning, and preserving the votes given at an election. Among other provisions are the following: The tickets, as soon as read, must be strung on a string by one of the judges, and must not thereafter be examined by any person, but must, as soon as all are counted, be carefully sealed in a strong envelope, each member of the board writing his name across the seal. The package so sealed must, before the election board adjourns, be delivered to one of its members, to be determined by lot or otherwise, who must, without delay, deliver such package to the clerk of the board of supervisors at his office, and upon receipt of the package the clerk must deposit it in the safe of the county treasurer, who must keep it unopened and unaltered for six months, after which time, if there is no contest commenced, he must burn the package without opening or examining the contents. The evidence adduced at the trial showed that the election was held on January 6, 1903, at a building known as Odd Fellows' Hall. Immediately after the close of the balloting, the election board, composed of the city council of Prescott, took the ballot-box to the city hall, and there the ballots were counted, two of the members of the council calling off the ballots and handing them to the mayor, who replaced them in the ballot box. The box was a steel or iron box having a slit at the top, with a lid which, when the box was locked, covered the only opening in the box completely. The box had two locks, with one key to each lock. At the close of the count the ballots were placed in the box folded, and the box locked and the opening completely closed. The ballots were not strung nor sealed in an envelope, nor were the names of the judges of election indorsed upon the box, or otherwise. The mayor then took the key to one lock, and one of the councilmen the key to the other lock, and these keys remained in their possession and upon their persons until produced in court at the time of the hearing of the contest. After being locked, the box remained for ten days in the office of the city clerk, who was not an election officer, the box being placed and remaining on the top of a safe in the main office, to which office four persons only had keys, -- to wit, the city clerk, the chief of police, the night watchman, and the city assessor (the appellant), -- the room being kept locked in their absence. All four testified that while the box remained in the room there was no change in its condition to their knowledge. Subsequently, about ten days after the election, the city council met as a canvassing board, and canvassed the result of the election, but did not reopen the box, and immediately after the canvass the box containing the ballots was taken by the city clerk to the office of the county treasurer and placed in the vault in his office, to which only the treasurer and his deputy had access. The treasurer testified that no change was made in the condition of the box or the ballots from the time they were delivered to him until they were produced by him in court at the hearing of the contest. There was no evidence that there had been any change in or tampering with the ballots. It therefore appears that the provisions of the statute requiring that the ballots be strung, that they be placed in a sealed envelope, that each member of the election board write his name across the seal, and that on receipt by him the ballots be delivered by the clerk to the county...