Ferguson v. Allen

• Decision Date: 18 April 1891
• Citation: 26 P. 570,7 Utah 263
• Court: Utah Supreme Court
• Parties: FERGUS FERGUSON, APPELLANT, v. CLARENCE E. ALLEN, RESPONDENT

26 P. 570

7 Utah 263

FERGUS FERGUSON, APPELLANT, v. CLARENCE E. ALLEN, RESPONDENT

Supreme Court of Utah

April 18, 1891

APPEAL from a judgment of the district court of the third district. The opinion states the facts except the following: The statutes of the Territory provide that qualified voters may object in writing to the right to vote of any person upon the voting lists, and that a hearing shall be had thereon before the deputy registration officer, and if upon such hearing the deputy registrar shall find that the person objected to is not a qualified voter he shall transmit the name to the judges of election, and such judges shall strike the name so certified from the lists before the opening of the polls that the ballot of the voter shall be delivered to the presiding judge of election, who shall, in the presence of the voter, on the name of the proposed voter being found on the registry list, and on all challenges being decided in favor of such voter, deposit it in the ballot box, but otherwise the vote shall be rejected. Sections 246, 251, 1 Comp. Laws, 1888.

Judgment affirmed, with costs.

Mr Arthur Brown and Mr. J. L. Rawlins, for the appellant.

Mr. C F. Lookout and Messrs. Zane and Putnam, for the respondent.

MINER, J. ZANE, C. J., and BLACKBURN, J., concurred in the result.

OPINION

MINER, J.:

The plaintiff, Fergus Ferguson, and the defendant, Clarence E. Allen, were each, respectively, candidates for the office of county clerk of the county of Salt Lake, Territory of Utah, at the August election in 1890, and the only candidates therefor. At the canvass of the votes by the county canvassers of the precinct returns, that body adjudged that defendant, Allen, had received a majority of fifteen votes; the said plaintiff having received 3,740 votes, and the defendant having received 3,755 votes; and a certificate of election was accordingly given to the defendant, Allen, who is now in possession of the office. The plaintiff, within the time required by law, filed his notice of contest, and now claims that there are two distinct errors in that computation,--that is: (1) In the Bingham precinct three polling places were provided by the Utah commission, but no division was had of the registration list. The whole registration was left with the judges of each poll. That poll No. 3 in such precinct was established up the canyon, in the mountains, for the accommodation of the voters at the Brooklyn mine. At this poll forty-one ballots were cast at this election,--thirty-nine for the contestee, Allen, and two for the contestant. Thirteen of the thirty-nine votes cast for contestee, Allen, were proved to be cast fraudulently, by persons not entitled to vote, and were rejected by the trial court, thus leaving Allen's vote in this precinct twenty-six.

It is now claimed by the contestant that the court erred in not rejecting the entire vote polled at this precinct, for the reason that the whole poll was proven fraudulent, and no legal votes were shown to have been cast. The contestant also claims that he is entitled to have counted in his favor fifteen votes in the South Cottonwood precinct, which were not returned by the judges of election; and claims that the facts concerning these fifteen voters are that fifteen legal voters, whose names appeared upon the registration list, who were entitled to vote, were wrongfully stricken from the registration list by the judges of election themselves, so as to prevent their vote; that the said fifteen voters, however, tried to vote, so far as they were able to do so, and that each of them tendered a ballot, together with an affidavit sworn in due form by each of said persons offering to vote, containing the oath required by the act of congress of March 3, 1887, known as the "Edmunds-Tucker Law;" and that the judges refused to put these ballots into the box. Each of the voters caused said ballots to be preserved, and his name written upon it, identified, and brought into court, so that the ballot was cast by each of the fifteen voters as far as it was in the power of the voter to cast it. Each of these votes contained the name of the contestant. Counting these votes, he would have a majority over the contestee of eight votes. Contestant claims: (1) That the court erred in not throwing out the entire ballot of the third poll of the Bingham precinct, and deducting all the thirty-nine votes from Allen's majority, for the reason that the whole of said poll was proven to be fraudulent, and no legal votes were shown to have been cast. (2) The court erred in not allowing the fifteen votes which it determined to have been wrongfully and illegally kept from the ballotbox in South Cottenwood precinct, and found to have been by the votes tendered for Fergus Ferguson, to be counted for him.

The evidence upon this case as tried in the court below is not brought before this court by the record, and the only question before this court on the record is whether or not the findings of fact by the lower court justify the conclusions and judgment of the court below, or whether other and different conclusions of law should have been reached upon the facts as found. Upon these points the court below found, among others, the following facts: "(8) That at said poll No. 3, in Bingham precinct, said thirteen ballots were cast by persons who were not qualified electors of said precinct, but who fraudulently personated the names of persons whose names appeared upon the registration list, who were not present to vote. That each of said thirteen ballots were cast, counted, and returned for the incumbent, contestee Allen, for said office of county clerk. (9) That in the precinct of South Cottonwood, in said county, fifteen different persons presented themselves at the polling place on the day of election, and claimed the right to vote, and each tendered to the judges of election a ballot for contestant for said office of clerk of the county court, but with said ballot tendered on affidavit, sworn to before a justice of the peace by the persons so offering to vote, which affidavit contained the oath required by the Edmunds-Tucker law; and the ballot of each of said persons was refused by the judges for the reason that the names of none of said persons was upon the registry list of said precinct. That the names of each of said fifteen persons had, prior to said day of election, been upon the registration list of said precinct, but each of said names had been by the judges of election stricken from said list before the opening of the polls, in accordance with the directions in writing from the deputy registration officer of said precinct. That the right of each of said fifteen persons to vote at said election had been objected to by a qualified voter, in writing, before said deputy registrar, and a hearing had been had upon each of said objections after due notice had been given each of said persons before said deputy registrar, and said deputy registrar had determined on such hearing that the names of each of said persons should be stricken from the registration list of said precinct, which said determination was erroneous and illegal, the said fifteen persons being qualified voters; but was duly certified to said judges, and the vote of each of said persons was refused by said judges of election, for the reason that the name of each had been so stricken from the registration list."

Upon the foregoing facts as found, the trial court found therefrom the following conclusions of law: "That to the majority of fifteen for the incumbent, as shown upon the face of the canvass and return, there should be added six votes on account of the matters set out in the fourth, fifth, and sixth paragraphs of the foregoing findings of facts, and that from the majority of the incumbent, as thus increased, should be deducted fourteen votes, on account of the matter stated in the third and eighth paragraphs of said findings, leaving the incumbent a clear majority of seven votes out of all the legal votes cast for said office at said election. That the ballots offered to be cast for contestant in South Cottonwood precinct, as referred to in the ninth paragraph of the said findings of facts, and which were rejected by the judges, and were not in fact cast, cannot be counted, nor can any of them be counted or made available to the contestant in this proceeding. And upon the foregoing facts and conclusions, it is adjudged and determined by the court that the contestant's complaint be dismissed, and that he take nothing by this proceeding; that the incumbent was legally elected to said office of clerk of the county court of said Salt Lake County, and his right and title to said office is confirmed."

The above findings include so much only as may be material in this discussion. On examination of the eighth finding of fact, we are unable to discover that there is any error of the court in its findings of law, so far as they apply to the third poll of the Bingham precinct. It is apparent from the findings that thirteen ballots were cast fraudulently, by persons who were not qualified electors of that precinct, by personating those whose names appeared upon the registration list, but did not vote; and these thirteen votes were properly deducted from the vote of the contestee, Allen. That there was fraud practiced at this poll there can be no question; but it does not appear from the findings of fact that the incumbent, or any of the officers conducting the election, participated in such fraud, or knew of it, or that the proceedings were so tarnished with fraud, neglect, or improper conduct on the part of the officers that the result of the election was rendered so unreliable and fraudulent as to make it impossible to ascertain the...