Dubie v. Batani

• Decision Date: 24 July 1934
• Docket Number: 7196.
• Citation: 37 P.2d 662,97 Mont. 468
• Parties: DUBIE v. BATANI.
• Court: Montana Supreme Court

37 P.2d 662

97 Mont. 468

DUBIE v. BATANI.

No. 7196.

Supreme Court of Montana

July 24, 1934

Rehearing Denied Nov. 24, 1934.

Appeal from District Court, Silver Bow County; Frank L. Riley Judge.

Election contest by Arthur G. Dubie against Fred Batani. Judgment of dismissal, and the contestant appeals.

Affirmed.

ANGSTMAN J., dissenting in part.

Howard A. Johnson and Earle N. Genzberger, both of Butte, for appellant.

William Meyer and N. A. Rotering, both of Butte, for respondent.

ANDERSON Justice.

This is an election contest. At the general election held on November 8, 1932, contestant was the regular nominee of the Republican Party for an unexpired term of approximately four years for the office of county commissioner of district No. 1 in Silver Bow county. The contestee, Fred Batani, was the regular nominee of the Democratic Party for this office. The board of county canvassers certified that the contestant received 9,886 votes, and the contestee received 9,906, thereby declaring the contestee elected by a majority of 20 votes. Contestant filed his petition, alleging deliberate, serious, and material violations of the election laws of Montana, erroneous or fraudulent count of the votes for the office at the election, and an erroneous canvass of the votes. Other grounds were alleged, which are unimportant here by reason of the failure of the contestant to produce evidence tending to sustain them.

The contestee answered, and trial was had before the court sitting without a jury, resulting in a judgment of dismissal of the petition of contestant. A motion for a new trial was made, heard, and denied. The appeal is from the judgment.

Allegations were made in the petition charging misconduct in the conduct of the election and the count of the vote in a number of precincts. It is conceded, however, that the only precincts involved on this appeal are Nos. 9 and 11. The allegations made with reference to the other precincts admittedly were not sustained by the proof.

The totals extended in the tally sheets in precinct No. 11 disclosed 249 votes for Batani and 122 for Dubie, although the actual total of the tallies thereon was 10 less for each candidate. A like error was made with reference to the extension of the totals for numerous other candidates. These tally sheets bear the admitted signatures of four of the judges and one of the clerks. The fifth judge testified that she preferred to say that they did not contain her signature, although proof by a handwriting expert established clearly that the documents did contain it. The total as certified by the judges and clerks in the pollbook for this precinct showed that Batani received 249 votes and Dubie 152. The testimony as to the signatures of the clerks and judges on the certificate attached to the pollbooks is identical to that concerning the tally sheets.

The clerks and judges certified to a checker's card for the Republican Party the same totals as were disclosed by the pollbook. The judges of election and clerks in precinct 11, and other persons present, testified that the vote was fairly and correctly counted. The count of the vote was had in the presence of numerous spectators as well as checkers for the various political parties. No one assumed to testify that the count was incorrectly made by the judges and clerks of election in the precinct. The voted ballots from this precinct were rolled and deposited in a sack, which was sewed and sealed. The sack containing the ballots, the pollbooks, and the tally sheets were all inclosed in the ballot box after the aperture used for depositing ballots had been covered and sealed. The ballot box was locked and delivered to the county clerk of Silver Bow county.

The "pink sheet," also referred to in the evidence as "a summarization sheet," is in the same form and size as the official ballot. The copy of it, delivered to the county clerk, showed the same totals for these candidates as did the pollbooks from precinct No. 11.

On the morning of November 9, 1932, the day following the election, the county clerk assembled four of the judges of election from precinct No. 11 in his office, and in their presence, and in the presence of two of his deputies, the ballot box from this precinct was unlocked, opened, and the tally sheets were removed therefrom. The totals on the summarization sheet for the candidates in question were struck out and made to conform to the totals appearing on the tally sheets, and a new pink sheet was prepared for precinct No. 11 at that time, showing the totals for all candidates as they appeared on the tally sheets. Everything which had been removed from the ballot box was thereupon, in the presence of those assembled, again returned to it, and the ballot box locked. Some evidence was produced on the trial with reference to one of the judges miscalling during the count of the ballots a vote for his brother-in-law, who was a candidate for the Legislature. Also there was some evidence as to one of the judges partaking of several drinks of intoxicating liquor during the course of election day and the evening following. The evidence, however, does not disclose that he thereby became intoxicated.

The ballots and election returns from both precincts were delivered by one of the judges in the ballot boxes, the openings in which used for the deposit of ballots had been sealed. They were transported by deputy county clerks to the office of the county clerk, where they were deposited in a room or vault. The locks on the ballot boxes were of a cheap variety, which an expert testified could be opened with almost any kind of instrument capable of being inserted in the aperture designed for the entry of the key into the lock. One of the locks, he testified, was bulged, which might indicate a tampering with it. The room in which the ballot boxes were kept had some three entrances. On all the doors of the various entrances were two locks, each requiring a different key to operate. The keys to the ballot boxes were kept, prior to the commencement of the contest, on a board in the same room or vault where the boxes were in storage. After the contest the keys were removed to another vault in the same office.

It appeared that many persons, including various county officers, janitors, watchmen and other county employees had master keys which would open the doors to the office of the county clerk, and one of these locks on the doors of the vault or room where the ballot boxes were stored. So far as disclosed, but two keys for the second lock on the doors of the vault or room were in existence and in possession of the county clerk and his chief deputy, respectively. These locks had been changed and new keys manufactured soon after the commencement of the contest, and a like change of the same locks and keys had been made some six years prior to that date. As to whether other keys were made by the locksmith at either time the locks were changed other than the two keys which were in the possession of the county clerk and his chief deputy, the record is silent. After the commencement of the contest, pursuant to order of the court, guards were maintained at night outside the office of the county clerk, and during office hours near the doorway leading to the vault, which was unlocked and open. The county clerk and his deputies testified that no one was permitted to tamper with the ballot boxes during office hours, and that both locks on all the doors were locked at night by closing the doors. The second lock, however, by the operation of a catch could be adjusted so that the second lock, upon the closing of the door, would not operate, and as to whether this was ever done, the testimony is of a negative character. Many persons in whose possession master keys were testified to be, did not testify at the trial.

Over objection of the contestee the voted ballots from precinct No. 11 were offered and received in evidence and counted by the court. The count thus made reduced Batani's total 7 votes and increased Dubie's 52 votes, making a net change of 59 votes.

It was testified by various witnesses that on the counting of the ballots by the judges and clerks of election in precinct No. 9, from 1 to 4 votes were counted erroneously for Batani; it was, however, conceded by all that at least one of these 4 errors was corrected immediately after it occurred. Numerous witnesses testified that all errors of this character were corrected; others testified that 2 or 3 were not corrected. The judges and clerks in this precinct all testified that the ballots were correctly counted and that any mistakes of this kind were promptly rectified. The ballots were offered in evidence and admitted without objection. The recount made by the court resulted in Dubie's receiving 197, and Batani's 144, an increase of 47, and a decrease for Batani of 42, making a net gain of 89 ballots for the contestant.

The court found with reference to the vote in both precincts that the judges and clerks of election were not guilty of malconduct in office, nor was there any deliberate or serious or material violation of the provisions of the election laws nor any erroneous or fraudulent count. It was further found, with reference to the county clerk's opening the ballot box on November 29 from precinct No. 11, that the proceedings were without authority in law, but done without any intention to violate the laws, and that the tally sheets were not molested, altered, or changed, and that these acts did not affect or change the result of the election, and that the tally sheets, when presented to the board of canvassers, truly represented the result of the count in the precinct. The court further found that certain of the ballots, which it marked for...