Edwards v. Logan

• Decision Date: 09 December 1902
• Citation: 70 S.W. 852,114 Ky. 312
• Parties: EDWARDS v. LOGAN.
• Court: Kentucky Court of Appeals

70 S.W. 852

114 Ky. 312

EDWARDS v. LOGAN.

Court of Appeals of Kentucky.

December 9, 1902

Appeal from circuit court, Edmonson county.

"To be officially reported."

Election contest by M. M. Logan against E. W. Edwards. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. B Gaines, John E. Du Bose, and Edward W. Hines, for appellant.

Wm Cromwell, Wilkins & Lay, D. W. Wright, and M. Hazelip, for appellee.

O'REAR J.

This contest involves the election to the office of county attorney of Edmonson county. The election was held in November, 1901. On the face of the returns as certified to by the officers of election, appellant had a majority of 19 votes. Within the time allowed by statute, appellee filed a petition in the Edmonson circuit court, in which the validity of the certificate awarded by the election commissioners to appellant was attacked upon two general grounds. One was that the officers of election of each of the precincts in the county had fraudulently or mistakenly counted votes for appellant which in fact had been cast for appellee. The other was that illegal voters had been allowed to vote in certain precincts, and had voted for appellant, and that, when the errors or frauds first mentioned were corrected, and the returns were purged of the illegal votes last mentioned, the result would have been that appellee would have received a majority, and therefore did receive a majority of the legal votes cast at that election for the office of county attorney. Appellant within the time prescribed also by the statute, filed an answer containing counter charges of a somewhat similar nature. The charges were not as specific, probably, in either instance, as they should have been, but the parties seem to have joined an issue, and to have developed the case by proof upon the averments as made. After the time allotted by statute for the introduction of proof by the respective parties had expired, and at a succeeding term of the circuit court, the judge of the court, upon his own motion, appointed two commissioners,--one selected, it is said, from each of the political parties represented by the claimants to the office in dispute,--whom he directed to begin upon a day certain, named in the order, to then count the ballots, which were preserved in the county court clerk's office, and which had not been filed in the circuit court up to that time, so far as the record discloses. Exceptions were saved to each party by the order of the court. The commissioners so appointed, having procured the keys to the ballot boxes from the circuit judge, met upon a day subsequent to that first fixed in the order, and proceeded to count the ballots. They declined to permit either of the parties to be present at the count, and refused admission to all others. They reported to the court the result of their labors, in which they stated that they found that the ballots in the ballot boxes showed that appellee had received 950 votes, and appellant had received 948. This did not take into account any of the ballots returned by the election officers as questioned. The officers of election had certified by certificates regularly and duly entered on the night of the election at the close of the polls that appellee had received 935 votes and appellant 954 for the office in question. How the discrepancy occurred is not explained. Exception to the report of the commissioners was sustained upon a ground not now material. Thereupon the court, a special judge presiding, the regular judge having declined to sit in the case, ordered the ballots brought into court, and then proceeded, in the presence of counsel and the parties, to count the ballots. The result of that count was that each of the litigants was found to have received 949 of the unquestioned ballots.

The first question presented by this appeal is whether, in the first place, the ballots were properly before the court as evidence, and, in the second place, whether the court's action concerning the custody, inspection, and counting of the ballots was authorized by law. For appellant it is insisted that the ballots, not having been produced and proved within the time provided by the statute for the taking of proof in the case, could not be subsequently introduced, because to so allow would be to permit the introduction of evidence for the party so using them after the time allotted by the statute for that purpose. The court is of opinion that it was the purpose of the legislature, in enacting the law providing for the preservation of ballots, and providing that they should be locked in boxes with separate locks, so that the keys to one should be in the hands of the officers of the precinct of one of the political parties, and the keys to the other lock in the hands of the officers of the other political party, and that, in the event of a contest, the keys were to be delivered by such officers to the judge of the circuit court of the circuit having jurisdiction of the case, to make such ballots evidence of the first importance in a contested election. When such a contest is filed, the ballots become evidence by that fact for all proper purposes before the trial court, to be introduced and considered upon such issues as may be legally joined under the provisions of the act. We therefore decide that it was proper to consider the ballots on the determination of the questions in issue in this case in so far as they shed light thereon, and subject to the rule announced below.

Whether the court should have appointed commissioners to aid it in tabulating and counting the ballots is a matter not entirely free from doubt. It may well be argued that the duty of canvassing returns of an election can only be exercised by those officials specifically charged with it, who are, in the first place, the officers of election of the several precincts; then the commissioners of election of the county and then, in the case of contest, the circuit court upon whom jurisdiction is conferred by the statute. The expression in that act that "the action shall proceed as an equity action" would seem to have reference more especially to the manner of the production of evidence, which is by deposition exclusively under the Civil Code, in equitable cases, and dispensing with the jury; for in no other particular do the actions appear to be tried as equitable actions. In fact, in many particulars, noticeable in the terms of the statute, they are quite dissimilar from equitable actions. From the expression above referred to it has been thought that the court found its power to appoint commissioners. But whether this is true or not, it was not proper for the commissioners to have excluded the parties and their counsel from the proceedings when they were opening and canvassing the returns in litigation, nor was it regular or proper for them to have held a secret meeting for that purpose, however pure may have been their intentions. Certainly, the parties to the litigation, in person or by counsel or both, were entitled to witness, not merely the opening of the ballot boxes and the envelopes containing the ballots, but also to inspect their condition, and verify the actions of the commissioners. Such an arbitrary right should not be, and we hold is not, vested anywhere, with respect to the returns of an election. The rule may be stated to be that, where the ballots are preserved so that their identity is assured, they can be counted during a contest; and they are undoubtedly better evidence of the vote cast than the returns, and should prevail where there is a difference. Hughes v. Holman, 23 Or. 481, 32 P. 298; Owens v. State, 64 Tex. 500; People v. Holden, 28 Cal. 123. But before a recount of the ballots should be allowed to rebut the presumption of the correctness of the official returns, it should be proved satisfactorily that the ballots had not been tampered with since the election, and that those offered in evidence are the identical ones cast. On this point it was said in the case of People v. Holden, 28 Cal. 133: "We must presume that the officers of election honestly performed their duty in the premises; that they did not mutilate any of the ballots, but, on the contrary, strung them, in the condition in which they were found in the ballot box, on a thread, and sent them in that condition to the clerk's office. The same presumption exists in relation to their custody by the clerk. *** The legislature could have had no other design in thus providing for the preservation of the ballots than to make them evidence of their own contents, and a test of the correctness of the returns made up from them by the officers of the election. They are in fact made a part of the returns, for it is expressly provided that they shall be sealed up with the poll list and tally paper, with the certificates of the officers attached, and indorsed 'Election Returns."' That presumption of integrity of the ballots cannot attach, however, until it is first shown that they came from the officer whose duty it is by law to have and preserve them, and that they are apparently in the condition of preservation prescribed by the statute. When that much is shown, the legal presumption as to their integrity attaches. On the contrary, however, if it be shown either that they have been tampered with, or that access has been afforded to them to persons unauthorized by law, then the burden shifts, and it thereupon becomes the duty of the person offering and relying upon such ballots to prove affirmatively not only that they are the identical ballots cast in the election, but they have not been mutilated, changed nor tampered with. In People v. Livingston, 79 N.Y. 288, it was said: "The statute requires the ballot boxes to be preserved undisturbed...