Ferguson v. Henry

• Decision Date: 04 October 1895
• Citation: 64 N.W. 292,95 Iowa 439
• Parties: FERGUSON v. HENRY.
• Court: Iowa Supreme Court

95 Iowa 439

64 N.W. 292

FERGUSON

v.HENRY.

Supreme Court of Iowa.

Oct. 4, 1895.

Appeal from district court, Cedar county; W. D. Thompson, Judge.

The plaintiff is the contestant for, and the defendant the incumbent of, the office of county clerk of Cedar county, and at the general election in 1894 the plaintiff was the Democratic candidate and the defendant the Republican candidate for such office. The board of supervisors, in its canvass of the returns, declared the defendant elected, and the plaintiff instituted proceedings to contest the election. The court of contest, which name, for convenience, we will use for the special tribunal, determined that the contestant was elected, and gave judgment accordingly. The incumbent appealed to the district court, in which a jury was impaneled, and at the close of the evidence the court, on motion of the incumbent, directed the jury to give a verdict for him, and from a judgment on such verdict the contestant appealed. Reversed.Wright & Wright and Charles W. Kepler, for contestant.

T. B. Hanley, W. N. Treichler, and Preston, Wheeler & Moffit, for incumbent.

GRANGER, J.

The canvass of the votes in the townships of the county was made November 7, 1894. The canvass of the returns by the board of supervisors was made on November 12, 1894. The statement of contest was filed with the county auditor on the 1st day of December, 1894. The incumbent, before the court of contest, moved to dismiss the petition of contestant, on the ground that the court was without jurisdiction, it having been filed more than 20 days after the canvass of the votes by the judges of election. The motion was overruled, and was again presented and overruled in the district court, and that action of the court is assigned as error on this appeal. The assignment presents the question of whether the 20 days in which the statement of contest is to be filed commences with the canvass of the votes by the judges of election in the different townships or that by the board of supervisors, which constitutes the county board of canvassers. It is provided by Code, § 697, that the contestant “shall file in the office of the county auditor, within twenty days after the votes have been canvassed, a written statement of his intention to contest the election.” The incumbent attaches importance to the words “after the votes have been canvassed,” and argues that the canvass by the township boards is of the votes, while that of the board of supervisors is of the returns; and, as the statement is to be filed within 20 days from the canvass of the votes, the time commences from the first canvass.

As to township boards, the law provides that “when the poll is closed, the judges shall proceed to canvass and ascertain the result of the election.” Code, § 622. It is then provided that: “When the canvass shall have been completed as provided by law, the clerks shall announce to the judges the total number of votes received for each candidate; at least one judge of the election shall then proclaim in a loud voice the total number of votes received for each of the persons voted for,” etc. Acts 24th Gen. Assem. c. 33, § 25. The law provides that the judges of the election shall make a return of the votes given for each person for each different office, and this return is to be canvassed by the board of supervisors. It is a return of the votes cast. The law requires the board of supervisors to “canvass the returns and make abstracts, stating in words * * * the name of each person voted for, and the number of votes given to each person for each different office.” Code, § 635. Both canvasses are of the votes. The one is from the ballots, and the other is from the returns. A conclusive thought, on this question, is this: The office in question is a county office. The result of the election is only declared by the county board of canvassers. The law provides, as to the county canvassers: “Each abstract of the votes for such officer as the county elects, shall contain a declaration of whom the canvassers determine to be elected.” Code, § 639. This is the first legal or official information of the result of the election of a county officer. Until then he is not presumed to know or have information that he may not be elected. In fact, before that no knowledge is presumed, and the law, as to a contest, should not operate before the result is known. The incumbent says, “The only persons who canvass the votes are the judges of election at the various election precincts.” The whole argument rests upon this thought. If we were to so hold, it would be a practical bar to contests for state offices, for in such cases the statement must be filed in 20 days from the day when the “votes are canvassed,” which is the same provision as that under consideration; and the result of their election is not declared until after the expiration of the 20 days; and, besides, the contest might be for causes arising with the state board of canvassers, whose duties are performed after the 20 days. The district court was clearly right in its ruling. It seems that the court later, on another motion, changed its ruling on this question, which will be noticed hereafter. See Clark v. Tracy, (filed at this term) 64 N. W. 290.

2. At the trial in the district court the contestant put in evidence ballots as returned to the auditor from the different voting precincts, under rulings of the court, and the ballots so counted gave to the contestant a majority over the incumbent of 18 votes, which the court held to be a prima facie case for contestant. The incumbent then put witnesses on the stand who, against objections, were permitted to testify that certain of such ballots shown them were not as they were voted or counted by the judges of election. Contestant insisted that it was error to admit the testimony, for the reason that no such issue was made by the pleading. We think that there was no error in the ruling of the district court in this respect. The issues were such that contestant assumed the burden of showing that he had received a greater number of votes than the incumbent, and to do that he put in evidence the ballots now in question, with others, which gave him a majority. The ballots thus in evidence were valuable, as such, because of their identity as those cast at the election. The proof that they came through the channels and from the...