Dalton v. State ex rel. Richardson

• Decision Date: 15 December 1885
• Parties: DALTON, Clerk, v. STATE ex rel. RICHARDSON.
• Court: Ohio Supreme Court

43 Ohio St. 652

3 N.E. 685

DALTON, Clerk,

v.STATE ex rel. RICHARDSON.

Supreme Court of Ohio.

Filed December 15, 1885.

Mandamus.

With this case is considered and determined Dalton v. State ex rel. Amzi McGill, Dalton v. State ex rel. Frank Kirchner, and Dalton v. State ex rel. George W. Hardacre. The relator, in the reported case of James C. Richardson, was one of the four Republican candidates for senator in the general assembly of Ohio from Hamilton county at the October election held on the thirteenth day of October, 1885, On the nineteenth day of October, 1885, Daniel J. Dalton, as clerk of the court of common pleas of such county, with SAMUEL BLOOM and WILLIAM J. SANDERSON, two justices of the peace within and for Cincinnati township, in that county, called for that purpose by the clerk, proceeded to canvass and abstract the returns of such election made to the clerk in order to ascertain and declare the result. Before they had completed the work so begun, the relator filed his petition in the circuit court of Hamilton county, alleging the foregoing facts, and that he had received a plurality of the votes cast at such election; that the canvassers above named had canvassed and abstracted a large number of votes which did not appear upon the legal returns of such election returned to such clerk, and had credited the same to his opposing candidate on the Democratic ticket. The issues of law and fact were raised upon pleadings to an amended petition, alleging the foregoing facts with great detail and particularity regarding the different precincts and returns therefrom; alleging that a lawful canvass of the legal returns will show the relator, and the other candidates on the Republican ticket for senator, to be elected; and prayed that a writ of mandamus issue to the canvassers, commanding them to convass and abstract the votes cast for the precincts named according to the legal returns thereof, and to omit from the canvass the papers and statements purporting to be returns from certain named precincts, but which were alleged to be spurious, forged, false, and illegal; and that they be ordered not to include in the abstract of votes of other precincts named any votes in excess of the number of votes shown to be polled by the poll-books of certain named precincts returned to the clerk; and that the clerk be ordered to issue to the relator a certificate of his election. Issues of law were tendered to this petition to test the jurisdiction of the court and the sufficiency of the petition, but issues of fact were finally joined by answer and reply. Upon the question of the jurisdiction of the court to hear and determine any of the matters declared upon in the petition, and to grant any relief in the form prayed for, as a majority of the court fails to concur in the same view, the court proceeded to a consideration of the several matters heard and adjudged by the court below upon the issues of fact; assuming, without deciding, that jurisdiction was acquired by the averments of the petition. The various matters assigned for error will appear in the opinion of the court.

JOHNSON, J., dissenting.

[Ohio St. 654]

John M. Follett, Isaac M. Jordan

, and E. G. Hewitt, for plaintiff in error.

Wulsin & Perkins, Edward F. Noyes, Warner M. Bateman, and Thomas McDougall, for defendant in error.

[Ohio St. 655]OWEN, J.

This case was commenced in the court below on the twenty-second of October 1885. Brashears and others, the candidates opposed to the relator and his associates, were not parties and had no right to be heard in the case, or in any proceeding in error to review it. On November 10, 1885, two days before the expiration of the time for notice of contest, they applied to this court for a writ of mandamus to compel the issuance to them of certificates of election. The present case was then on trial in the court below. Counsel for Richardson, at the request of this court, appeared and informed the court that the case on trial below involved the same questions; that the trial was nearly concluded; and that in a very few days the case would be here for review on error. They urged the postponement of the Brashears Case to the hearing of the present case. The importance of an early hearing was conceded by counsel on both sides. On December 2, 1885, after much more delay than had been anticipated by counsel, the petition in error was filed in this case. The suggestion that the law required 10 days' notice of the filing or hearing of the petition is absurd. Neither leave nor notice is required under the circuit court act, and by section 6713, Rev. St., a summons in error may, if issued in term time, be made returnable forthwith, and issue at once upon filing the petition in error.

The case was taken out of its order under section 440, Rev. St., and four days' informal notice given to counsel for defendants in error that the case would be heard on Monday, December 7th, at 2:30 P. M. Counsel appeared. The suggestion of counsel that, although having been engaged in the investigation of the questions involved for nearly six weeks, they were still unprepared to argue such questions, and the request for further delay of the case, did not prevail. No good reason for further delay appearing, the arguments were allowed to proceed; counsel fixing their own time for argument. Nearly two months had elapsed since the election and the result was still undeclared. Much greater delay than any of the counsel had anticipated had already intervened. Considerations of public interest and official duty demanded that the case proceed without further delay.

1. It is assigned for error that the court excluded from its count 200 of the votes which appeared, by the returns from precinct A of the Fourth ward, to be credited to the Democratic candidates for senators from Hamilton county. In this return, over 300 names, purporting to be those of voters, were, upon sheets of foolscap paper folded within the poll-book, furnished to the election board, and which was numbered to contain only 654 names. These sheets were in no manner attached to the poll-book. They are not authenticated by the signature of any judge or clerk of the election. The poll-book was full, and the last name upon it was numbered 654. The record shows that the same form of poll-books was furnished to the election officers of each precinct of the county, and was prepared to contain only 654 names; the attempt having been made to subdivide the precincts so that no precinct should contain more than 600 voters. This precinct had not been so subdivided. The names of voters were continued from the regular poll-book upon the loose sheets; the first name upon it being numbered 655, and in the same handwriting as the last names on the poll-book. These names, to the number of 697, are continued in the same hand, and that is evidently that of one of the clerks of the election. From this they appear in another handwriting to the number of 796, when the entry of names is resumed by the clerk and continued to the number of 996. These sheets were found folded within the poll-book when opened by the canvassers. That these sheets were [Ohio St. 656]entitled to be regarded as part of the poll-book is supported by the authority of Clark v. McKenzie, 7 Bush. 524, where precisely the same question arose. Controversy upon this point is settled, however, by the fact that the court below treated it as part of the return, and counted over 100 votes, representing as many names upon it.

It is further claimed that this return should not be canvassed for the reason that there are upon it a large number of unusual names and an unusual number of like names; that it is the duty of the canvassers to look to the names upon the return, and reject it for the reason indicated; and by what test, as to number or peculiarity of names, a return is to be condemned as spurious is a proposition upon which we are left without light. It appears from this return that, in the footings of tallies for each of the democratic candidates for senator, there was at one time the number of 726, and that this has been changed, in the case of three of these candidates, to 926. It is claimed that this should and does condemn the entire return as false and spurious, and that it should be rejected entirely, or at least that the 200 votes involved in this change should be rejected.

The number 726, originally appearing in the above footing of the tallies, together with the votes credited in the footing to the opposing candidates, aggregated 796 votes. When this number of names of voters was reached on the poll-books, the record of names was resumed in another handwriting, (being plainly that of the clerk of election who began the record,) and was continued in the same hand to the number of 996. This number corresponds with the tallies; and if the return is a valid one, it was the clear duty of the canvassers to change the footings to correspond with the tallies. Where the count is kept by [Ohio St. 657]tallies, the number of them will prevail over an incorrect footing in figures. In such case the footing would be a mere clerical mistake, appearing upon the face of the return and subject to correction by the canvassers. This was distinctly held by MINSHALL, J., (a member elect of this court,) in Esker v. McCoy, (Ross common pleas,) 6 Amer. Law Rec. 694. Several candidates upon the state ticket with these senatorial candidates were credited with but 726 votes each in both tallies and footings. There is no break in the record of tallies at the point where it is claimed additions began. It is asserted in argument that the names of the judges signed upon each page of the returns are in the same handwriting. This does not seem to be borne out by inspection of them. There seems to be at least the handwriting of two different persons exhibited in the three names. There is no question but that the signatures of the two attesting clerks...