Fenton v. Scott

• Decision Date: 20 December 1888
• Citation: 20 P. 95,17 Or. 189
• Parties: FENTON v. SCOTT.
• Court: Oregon Supreme Court

20 P. 95

17 Or. 189

FENTON v. SCOTT.

Supreme Court of Oregon

December 20, 1888

Appeal from circuit court, Lane county.

Action by J.E. Fenton against Rodney Scott, to contest the right to the office of county judge of Lane county. Judgment for defendant, and plaintiff appeals.

(Syllabus by the Court.)

The law is well settled that the burden of proof is on the plaintiff when he seeks to introduce the ballots to overturn the official count, to show affirmatively that the ballots have been tampered with, and that they are the genuine ballots cast by the voters.

While the ballots, when identified, are the best evidence, and are to prevail over the official count, yet, to entitle them to be resorted to and be recounted, the facts going to show their preservation must fix their identity beyond all reasonable doubt.

But this does not require that they must be proved genuine beyond all possible doubt, or beyond a mere possibility that they might have been interfered with. All that is required is that they be proved intact and genuine with a reasonable degree of certainty, and to the full satisfaction of the court.

Where the facts found do not disclose affirmatively that the ballots have been so safely preserved as to satisfy the trial court, beyond reasonable doubt, of their integrity or identity, and as a legal consequence refuses to recount them to overturn the official count, held, that their rejection was no error.

Where a ballot discloses a name written opposite to a printed name erased, the intention of the voter is to substitute the written for the erased name.

Where upon a ballot, the names of two representatives were erased and opposite, but slantingly, in consequence of the narrow margin upon which to write, two other names are written, and one of the names so written was a candidate for county judge on another ticket, but the printed name of the county judge on such ticket was not erased, held, that the facts did not disclose a case within the provisions of section 2528, Code Or.

L. Bilyeu and J.J. Walton, for appellant.

Washburn & Woodcock, and Condon & Dorris, for respondent.

LORD J.

This was a proceeding under the provisions of title 4, c. 14, §§ 2544-2548, Code Or. to contest the right of the defendant to the office of county judge of Lane county, to which he was declared elected by the board of canvassers of said county.

Without adverting to the pleadings, it is sufficient to say the contest proved adverse to the contestant, and it is from the judgment rendered therein that this appeal is brought. There are but two questions presented by this record, or in fact earnestly urged by counsel for the contestant, which we shall deem it necessary to consider. One of the main questions--in fact, the main one argued in the brief--which counsel for the contestant seeks to raise is the same question as counsel for the defendant sought to raise in Hartman v. Young, ante, 17, (just decided,) namely, that the proceeding under the statute to contest an election is in the nature of a suit in equity, and is to be tried by this court de novo upon the evidence; or, failing in that, that it is the duty of this court to say, as a matter of law, upon the evidence as to their safe preservation, that the ballots were the best evidence, and entitled to be recounted. Both of those questions were decided adversely to this contention in Hartman v. Young, and we must refer to it, without further argument, for an expression of our views.

But there is no difference upon the facts found and presented by this record in having considered the identical question claimed as error, and decided. The findings by the court in this case are stated with a fullness, particularity, and accuracy that is creditable, and in a way that enables this court to determine the correctness of the legal conclusions drawn therefrom. And this is especially so in regard to the facts found as to the care taken of the ballots, and all other matters in relation thereto, so that the correctness of the conclusion drawn by the trial court, and questioned by counsel for the contestant, is fully presented for our consideration and decision.

In a case like this, the law is well settled that the burden of proof is on the plaintiff, when he seeks to introduce the ballots to overturn the official count, to show affirmatively that the ballots have not been tampered with, and that they are the identical ballots cast by the voters. The authorities to this point are numerous, and are cited and discussed in Hartman v. Young, and need not be recalled here. The inquiry now is, is the legal conclusion which the court below draws upon the facts found such as the law pronounces? Upon the findings of fact as to the ballots of North Eugene and South Eugene precincts, the trial court declared, as a conclusion of law, that they were not "sufficiently identified to entitle them to be received in evidence to contradict the official returns," and consequently rejected them. The reason for this, in law, must have been because, under the facts, there was a want of that affirmative showing necessary to establish the identity of the ballots as the ones actually cast by the voters of those precincts.

Without unnecessarily incumbering the record, the court found as follows: "That the poll-books and sealed packages purporting to be the ballots cast at said election in North Eugene precinct, and the poll-books and a like package purporting to be the ballots cast at said election in South Eugene precinct, were delivered to the clerk of Lane county Or., by one of the judges of the election from each of said precincts, some time between June 4, 1888, and June 8, 1888. The exact date of said delivery does not appear from the evidence in this case. That said package purporting to be the ballots of said precincts were by said clerk deposited in a safe in his office, where they remained until the official canvass of the vote of said county was made on June 8, 1888, when they were taken from the said safe of the said clerk, and deposited in an open pigeon-hole in the vault, where they remained until about two days after this contest was instituted. The said vault is a room adjoining the office of said clerk in which the public records are kept, and opens into said office, and is accessible to and used by any person who may have occasion to examine the public records of said county, and such persons pass in and out of said vault during office hours whenever they desire so to do. That owing to some defect in the door of the vault it cannot be and was not closed at any time during the time said ballots were so deposited therein. That said clerk, or his deputy, was generally in said office during office hours, but occasionally for a short time both would be out, and the door of said office not locked. That said packages were taken from the vault by said clerk, and he testified on this trial that he found them in just the same condition as they were when he put them in, and that they have remained in his possession ever since delivered to him, and he did not know of any one handling ballots but himself, and in his opinion they were in same condition when offered in evidence on this trial as when delivered to him by the respective judges of said election, and that the said packages, or either of them, had not been opened to his knowledge since they were delivered to him. That said package, purporting to be the ballots of North and South Eugene precincts, respectively, were sealed up when offered in evidence in this case, and were each opened...