Farrell v. Larsen

• Decision Date: 31 July 1903
• Docket Number: 1468
• Citation: 26 Utah 283,73 P. 227
• Court: Utah Supreme Court
• Parties: A. L. FARRELL, Respondent, v. JACOB N. LARSEN, Appellant

73 P. 227

26 Utah 283

A. L. FARRELL, Respondent, v. JACOB N. LARSEN, Appellant

No. 1468

Supreme Court of Utah

July 31, 1903

Appeal from the First District Court, Cache County.--Hon. Charles H Hart, Judge.

Action by a rival candidate to contest the election of the defendant to the office of county clerk of Cache county, Utah. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

James C. Walters, Esq., for appellant.

There is no doubt that as a general proposition of law, the ballots are the best and primary evidence, and that the official canvass is secondary evidence. State v. Judge, 13 Ala. 805; People v. Holder, 28 Cal. 123; McCrary Elections, secs. 291, 439; Davenport v. Olerich, 73 N.W. 603.

But this rule is changed unless the ballots are shown to have been kept in a safe manner. Dorey v. Lynn (Kan.), 3 P. 557.

And "if the ballots have been rigorously preserved they are the best and highest evidence; if not, they are not only the weakest, but the most dangerous." People v Livingston, 79 N.Y. 290.

And the burden of proof is on the contestant to show that the ballots have been preserved with that care which precludes the suspicion of having been tampered with, and the opportunity of alteration or change. Hartman v. Young, 20 P. 17; Davenport v. Olerich, 73 N.W. 603; Fenton v. Scott, 20 P. 96; Rhode v. Steinmetz, 55 P. 614.

And before the ballots should be allowed in evidence to overturn the official count and return, it should appear affirmatively that they have been securely kept by the proper custodian of the law; that they have not been exposed to the public, or handled by unauthorized persons, and that no opportunity has been given for tampering with them. McCrary, Elections, p. 209; Cooley, Con. Limitations (5 Ed.), 78; Coglan v. Beard, 2 P. 737; Newton v. Newell, 6 N.W. 346; Albert v. Twohig, 53 N.W. 582; Martin v. Mills, 58 N.W. 732; Hartman v. Young, 20 P. 17; Powell v. Holman, 6 S.W. 705; People v. Livingston, 79 N.Y. 790; Hudson v. Solomon, 19 Kan. 177; Kingsley v. Berry, 94 Ill. 115; Caldwell v. McElvain, 56 N.E. 1012; Beall v. Alvert, 42 N.E. 166; Murphy v. Battle, 40 N.E. 470.

P. E. Keeler, Esq., for respondent.

Confining the assignment, then, to the question of admissibility, counsel submits the rule to be that where it appears that there is a possibility that unauthorized persons may have had access to the ballots, it is a question of fact for the court to determine from all the circumstances whether the identity and inviolability of the same are established, and unless there is reasonable probability that they have been tampered with, the ballots are the original evidence. And even under such circumstances the ballots are admissible for what they are worth, to be considered with all the other evidence in the case. Hudson v. Solomon, 19 Kan. 177; People v. Higgins, 3 Mich. 233; People v. Cicott, 16 Mich. 283; People v. Sackett, 14 Mich. 320; People v. Livingston, 79 N.Y. 287; Tebbe v. Smith, 41 P. 454; Hughes v. Holman, 32 P. 298; Hawser v. Pepper, 79 N.W. 1018; Hartman v. Young, 20 P. 17; Metzer v. Davis, 80 N.W. 557; Catron v. Craw, 46 N.E. 3; Ferguson v. Henry, 64 N.W. 292; Apple v. Barcroft, 41 N.E. 1116; Sone v. Williams, 32 S.W. 1016; Mallett v. Plumb, 22 A. 772; O'Gorman v. Richter, 16 N.W. 416.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

--The plaintiff, who was a rival candidate, brought this action to contest the election of the defendant to the office of county clerk of Cache county, Utah. The contestant alleged that the board of canvassers, at the election held November 4, 1902, returned 3,060 votes for him and 3,066 votes for the contestee; that a certificate of election was issued to the contestee; that in all of the districts of the county legal votes for the contestant were rejected, and illegal votes counted for the contestee; that ballots improperly marked, and bearing marks of identification, were counted for the contestee; and that, if all the illegal votes cast for the contestee were deducted from the total vote, the number of votes received by the contestee would be less than the number received by the contestant. At the trial, over the objection of the contestee that they "had not been sufficiently shown to have been preserved from interference," the ballots were admitted in evidence, and upon a recanvass of them in certain districts the court found that the contestant had received, of the legal votes cast, 3,034, and the contestee 3,023, and ordered the contestant to be declared elected, and the certificate of election of the contestee to be cancelled and annulled. Judgment was entered accordingly.

The contestee now challenges the correctness of the judgment and decree by appeal, and insists, inter alia, that the court erred in admitting the ballots in evidence, and ordering them to be recounted in certain districts, where the contestant alleged illegal ballots had been counted by the board of canvassers. It is urged that, after the votes were counted, and the official returns and canvass made, the ballots were not kept and preserved as required by law. The statute concerning elections, in section 858, Revised Statutes 1898, on the subject of the disposal of ballots after counting by the judges of election, provides: "At all elections, the ballots as soon as read must be strung on a string by one of the judges, and must not thereafter be examined by any person. The 'excess' and 'defective' ballots, separately strung, shall, with the counted ballots, be carefully sealed in a strong envelope. Every 'excess' or 'defective' ballot must be marked by the judges, in writing, across the face thereof, 'Excluded on the ground of . . . ,' filling the blank with a brief statement of the reasons for the rejection, which statement must be dated and signed by the judges." Section 863 provides that the judges, before they adjourn, must deliver the package of ballots so counted and sealed to one of their number, who must, within 24 hours, deliver it, "without their having been opened to the county clerk, city recorder, or town clerk, as the case may be." Section 865 provides that upon the receipt of such package the clerk or recorder must file the same, and "must keep it unopened and unaltered for twelve months, after which time, if there is not a contest commenced in some tribunal having jurisdiction, he must burn the package without opening or examining the contents." These provisions of the statute, as will be seen, specify particularly how the ballots, after they have been read and counted by the judges of election, shall be sealed, to whom they shall be delivered, how and for what length of time and purpose, and in what manner finally destroyed. The statute prescribes the manner of the preservation with much strictness, and every consideration of public policy requires that its terms should be complied with as near as possible and practicable. The evident intent of the Legislature was to have the ballots, for the purposes of a contest, preserved untouched, undisturbed, and inviolate; and such intent is in harmony with the best interests of the State and its subjects. When preserved, as required by the statute, the ballots, under well-settled law, are the best and controlling evidence, in an election contest, to determine who is entitled to the particular office in controversy, and may be received to overturn the presumption that the returns are correct, and that the election officers performed their duty. The correctness of the official canvass and returns is presumed, since the same are made immediately upon the close of the polls, by sworn officers, usually in the presence of the friends of the competing candidates, before the result of the election is known, or an opportunity for tampering with the ballots is presented. Such being the case, the onus probandi, in all election contests, is upon the contestant, who offers and relies upon such evidence, to show that the ballots have been kept and preserved according to the requirements of the statute; and before the ballots can be received in evidence it must affirmatively appear from the testimony that they have been so preserved. The well-known rules of evidence, as well as public policy, require that he who relies upon such evidence should satisfactorily show that the ballots have been preserved according to law, and are genuine. When they have been so preserved, then, as between the returns and the ballots, the ballots must control. Experience has shown that temptation on the part of a defeated candidate or his friends to change the result of an election has been frequently manifest, especially where the vote was very close. In such case the danger of tampering with the ballots is so great that no opportunity must be afforded by those who are entrusted, under the law, with their safe-keeping. Therefore, in cases where the departure on the part of the custodian of the ballots from the statutory requirements for their preservation has been such as to necessarily expose them to unauthorized persons or the public, the ballots should not be received as evidence against the correctness of the official count and returns. The rule that the ballots must be kept and preserved in accordance with the requirements of the statute, to continue them as controlling evidence in an election contest, and that the burden is upon the contestant to prove that they were not improperly or unlawfully exposed, but were preserved and undisturbed, is doubtless in harmony with the great weight of authority.

In McCrary on Elections, sec. 471, the author says: "Where as is the case in several of the States, the statute provides a mode of preserving the identical ballots cast at an election for...