Hamilton v. Young

• Decision Date: 15 June 1904
• Citation: 81 S.W. 682
• Parties: HAMILTON v. YOUNG.
• Court: Kentucky Court of Appeals

81 S.W. 682

HAMILTON v. YOUNG.

Court of Appeals of Kentucky.

June 15, 1904

Appeal from Circuit Court, Metcalfe County.

"Not to be officially reported."

Proceedings by John U. Young against James A. Hamilton to contest defendant's election for the office of circuit court clerk. From a judgment for plaintiff, defendant appeals. Reversed.

Basil Richardson, W. L. Porter, Rollins Hurt, M. O. Scott, H. M Beachamp, J. W. Kinnaird, Baird & Richardson, and R. L Greene, for appellant.

Geo. T Duff, John C. Hutchison, John W. Compton, Jas. A. Conyers, J. Rogers Beauchamp, and Hazelrigg, Chenault & Hazelrigg, for appellee.

SETTLE J.

The appellant, James A. Hamilton, Jr., and the appellee, John U. Young, were rival candidates at the November election, 1903, for the office of circuit court clerk in the county of Metcalfe; the former being the nominee of the Democratic, and the latter of the Republican, party.

Upon the face of the returns made by the officers of election in the various voting precincts, the board of election commissioners found and declared appellant duly elected to the office in question by a majority of 49 votes, and gave him a certificate to that effect; whereupon appellee, denying appellant's right to the office, and claiming his own election thereto, entered a contest therefor by the institution of this action in the Metcalfe circuit court. The trial of the contest in the circuit court resulted in a judgment declaring appellee elected to the office in controversy by a majority of 25 votes. Of that judgment appellant complains, and the case is now before us for review and final adjudication.

The vote upon the face of the official returns was as follows:

It is conclusively shown by the evidence that the election officers of each precinct, as soon as the polls closed, without adjournment or separation, immediately opened the ballot boxes, counted the ballots therein, made tally sheets of the count, and announced by one of the judges of the election, in front of each voting room, the result of the election in the precinct; and that thereupon the officers in each precinct made out, and by their count of the ballots, returns thereof on the inside of the cover of the "stubbooks," duly signed the same, made and signed duplicates thereof, and duly delivered the same, together with the counted ballots, ballot boxes, and stubbooks to the proper officials.

Waiving the technical objection made to the averments of the petition, which are alleged to be insufficient "to constitute a specific charge that would apprise the opposite party of its nature and that would enable him to prepare a defense," we will at once proceed to the consideration of what we regard the most important question in the case, viz., were the ballots which were admitted by the lower court as evidence so kept and preserved as to manifest their integrity and entitle them to overcome the returns of the election officers and the certificate issued to appellant by the election commissioners?

In McCrary on Elections (section 471) it is said: "When, as is the case in several states, the statute provides a mode of preserving the identical ballots cast at an election for the purpose of being used as evidence in the case of a contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that the ballots may be tampered with after the count is made known, especially if the vote is very close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law from the time of the original official count until they are produced before the proper court or officer; and if it appears that they have been handled by unauthorized persons, or that they have been left in an exposed or improper place, they cannot be offered to overcome the official count."

In Bailey v. Hurst, 68 S.W. 869, 24 Ky. Law Rep. 508, this court, in an opinion by Judge Hobson, announced the following rule on this subject: "The certificate of the officers of election is prima facie correct, and the presumption of the proper discharge of official duty in counting the votes is not overthrown by the ballots, if, when they are produced, it appears that they have been tampered with. *** Although the general rule is that the ballots themselves are the best evidence of the number of votes cast, and for whom cast, yet this rule can have no application to a case where the ballots have been tampered with after they were deposited in the ballot box. In such a case the value of the ballots as evidence is almost totally destroyed, and the returns made by the officers of election presiding at the poles may become better evidence than the ballots."

In Edwards v. Logan, 70 S.W. 852, 24 Ky. Law Rep. 1099, it was also said by this court in an opinion by Judge O'Rear: "The rule may be stated to be that when 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 ballot 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. 123: '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 the 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 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 that they have not been mutilated, changed, or tampered with."

In Albert v. Twohig, 35 Neb. 563, 53 N.W. 582, it was said that although "the ballots cast constitute the primary evidence to determine the right of the respective parties, it must appear, however, that they have been preserved substantially in the manner and by the officers prescribed by the statute. If they have been placed in a position to be tampered with by interested parties, the burden of proof is on the party offering them in evidence to show that they are in the same condition as when sealed by the several election boards. And in the absence of such proof it was held that the ballots were properly rejected as evidence." People v. Livingstone, 79 N.Y. 288; Cooley's Constitutional Limitations, 625; People v. Sackett, 14 Mich. 320; People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141; Powell v. Holman, 50 Ark. 94, 6 S.W. 505; Hudson v. Solomon, 19 Kan. 177; Hartman v. Young, 17 Or. 150, 20 P. 17, 2 L. R. A. 596, 11 Am. St. Rep. 787; McCrary on Elections, 475.

From the foregoing authorities, and numerous others that might be cited, it is manifest that where it is made to appear that the ballots have been changed, or so exposed as to afford opportunity to be...