Hartman v. Young

• Decision Date: 19 December 1888
• Citation: 20 P. 17,17 Or. 150
• Parties: HARTMAN v. YOUNG.
• Court: Oregon Supreme Court

20 P. 17

17 Or. 150

HARTMAN v. YOUNG.

Supreme Court of Oregon

December 19, 1888

Appeal from circuit court, Umatilla county.

Action by George A. Hartman against J.N. Young, to contest the right to the office of county clerk of Umatilla county. Judgment for plaintiff, and defendant appeals.

(Syllabus by the Court.)

It is a primary rule of elections that the ballots constitute the best-the primary-evidence of the intention and choice of the voters.

In determining a contested election, the evidence of the ballots actually cast will control that furnished by the official count, provided the ballots have been preserved and protected from tampering

The official returns, when duly certified, are prima facie evidence that the result is as declared, but such return or canvass is never conclusive, unless made so by statute. As a quasi record it is entitled to the presumption of regularity, and is, prima facie, of its integrity.

As between ballots shown or admitted to be the identical ballots cast by the voters and such official count, the ballots are the best evidence.

The burden of proof rests on the plaintiff. He must establish to the satisfaction of the jury or trial court that the ballots have been kept intact, and are the genuine, identical ballots cast at the election; otherwise they will receive no credence, and be rejected as unworthy of credit.

Provisions of the statute for the safe-keeping of ballots are treated by the courts as a directory, and when it is shown that the ballots have been securely kept and preserved inviolate, they will not be excluded as evidence on account of some omission to comply with their directions.

Where the court finds that the ballots have been safely kept and preserved, that no one has tampered with them, and notwithstanding the opening of the box for the purpose stated, that the ballots were the genuine and identical ballots cast by the voters of South Pendleton precinct, the legal conclusion drawn therefrom by the trial court, viz that "such ballots are the best evidence, and entitled to be recounted," is in conformity with law, and such as it pronounces on that state of facts.

Richard Williams, J.C. Leisure, and Fred Page Tustin, for appellant.

D.W Bailey and W.M. Ramsey, 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 clerk of Umatilla county, to which he was declared elected by the board of canvassers of said county. In substance, the facts alleged impeach the correctness of the returns as certified in the wrongful and erroneous counting of the votes of South Pendleton precinct etc., whereby the defendant was declared duly elected, etc. The answer, after making the usual denials, alleged affirmatively and separately that the poll-book of said precinct, signed and attested as required by law, was certified and returned to the plaintiff, then county clerk of said county, showing that an election had been held in that precinct at the date therein stated, giving the number of votes, and that the defendant had received the majority, etc.; that the same was duly canvassed by the board, etc., and that the defendant was duly elected county clerk of said county; that the ballots polled at said election in said precinct were duly enveloped and sealed, as required by law, and returned to said county clerk, etc.; and that he, being then and there a candidate for the office of county clerk, etc., after he had received the said ballots, enveloped and sealed as aforesaid, did unlawfully break the seal, and remove therefrom the said ballots, etc.; and ever since the same have been in the hands of said plaintiff in a loose and unprotected condition, affording an opportunity for changes and alterations of said ballots; and on account of such circumstances the said ballots ought not to be recounted, etc. The reply put in issue the affirmative matter set up, and the trial proceeded to judgment in favor of the plaintiff.

It thus appears upon the issue made by the pleadings that the subject-matter upon which the contest is based is the recount of the vote of South Pendleton precinct, and which, according to the judgment, if allowable, is conclusive of the right of the parties. For the determination of the question presented by the record, it perhaps would have been more satisfactory to the court if counsel for the defendant had requested the court below to make its findings fuller in respect to the particular facts upon which such question is raised. The difficulty, however, seems to have been that he acted upon the hypothesis that the evidence as to the preservation of the ballots of South Pendleton precinct failed or was incompetent to establish their identity as a matter of law, and therefore inadmissible; when the only way, it would seem, that the question which he seeks to have litigated and determined can be raised on this record is: Is the judgment and legal conclusion which the trial court draws from the facts found, such as the law pronounces? It will therefore be necessary to state the substance of some of the evidence to show hereafter that it was competent and admissible, and also to show there was evidence tending to support the findings of the trial court in the particular questioned by this record.

The evidence certified to us in the record discloses that the poll-book, the ballot-box, and the ballots therein, of South Pendleton precinct, were duly delivered to the clerk after the election; and the ballot-box, according to the testimony of Mr. Watron, one of the judges of the election, "was sealed over the slit on the top with my name on it, and had two strips of paper around it, both sealed. *** The box could not be opened without tearing the papers off." That the contestant, who, as county clerk, received the poll-book and ballot-box of said precinct, and the key to the box, on the 5th day of June, and kept the box in the vault in the condition as delivered until the 12th day of that month, when he took it from the vault and carried it into the main office, where the vote was being canvassed, and in the presence of the other two members of the board, and several other persons who were present and overlooking the canvass, and opened it for the purpose of finding the poll-book, on the assumption that it was locked up in the box, as was the case in some of the other precincts; that he only raised up the ballots, and, seeing that the poll-book was not there, immediately returned them into the ballot-box, and relocked it, and that soon after he found the poll-book in the vault, where he had deposited it when handed to him by Mr. Watron; that the ballot-box and its contents, so locked, but not resealed, were returned to the vault, which was made of brick, with iron doors, and which stood open during the day; and that no one had a key to the ballot-box but himself; and that he and his deputy had a key to the vault; that various persons were permitted to go into the vault, such as he knew, and remain one and two hours; that the box remained on the shelf in the vault until called for by this proceeding, undisturbed; and that it had been kept by him safely, and had not been exposed to the public, or been tampered with; and that the box had never been opened except as stated, or in the possession of any one except himself; and that the contents of the box were the same as when he received it.

Substantially upon this evidence, the trial court found "that it appeared to the satisfaction of the court, and that affirmatively on part of the contestant, George A. Hartman, that the said ballots of South Pendleton precinct for Umatilla county have been kept safely by himself, the custodian of the same as by law provided; that said ballots have not been exposed to the public, or handled by unauthorized persons, and have been identified as the ballots cast by the voters of said South Pendleton precinct on June 5, 1888, and have been preserved intact; that they are genuine, and have not been tampered with; that they have been kept in the vault of the clerk's office of said county and state, locked in the ballot-box of said precinct, since their delivery into the custody of said Hartman, county clerk of said county and state, on June 5, 1888, continuously, until the canvass of the votes on June 12, 1888, when said box was removed into the clerk's office of said county, and for the purpose of finding the poll-book of said precinct, and then and there unlocked in the presence of the board of canvassers, and the ballots therein, tied together in one package, as such said package were lifted up and out of said box by said Hartman, and by him at once returned into said box, and the said box was relocked in the presence of said board, and upon the conclusion of said canvass the said box and ballots so locked therein were returned to the said vault by said Hartman, where it and said ballots have remained continuously since said date until removed therefrom on the trial of this action on July 16, 1888." And as a conclusion from such facts finds "that as such ballots of said precinct they are entitled to be admitted as the best evidence, and recounted," etc.

From this statement it becomes apparent why counsel for defendant is anxious to reach the evidence by his exception, and have the court pass on its admissibility as a matter of law; or failing in that, that the court shall regard and treat the proceeding under the statute to contest the election in the nature of a suit in equity, so that the court may examine the evidence and try the case de novo. Upon this last proposition it is sufficient to say that the proceeding under the statute is to be tried as an action...