Hunt v. Campbell

Citation19 Ariz. 254,169 P. 596
Decision Date22 December 1917
Docket NumberCivil 1588
PartiesGEORGE W. P. HUNT, Appellant, v. THOMAS E. CAMPBELL, Appellee
CourtSupreme Court of Arizona

[Copyrighted Material Omitted]

APPEAL from a judgment of the Superior Court of the county of Maricopa. R. C. Stanford, Judge. Reversed.

Mr Eugene S. Ives, Mr. F. C. Struckmeyer, Mr. Thomas W. Nealon and Mr. Louis B. Whitney, for Appellant.

Mr Richard E. Sloan, Mr. John H. Campbell, Messrs. Bullard & Jacobs and Mr. J. L. Gust, for Appellee.

OPINION

FRANKLIN, C.J.

This is an election contest. At the general election held in the state of Arizona on the seventh day of November, 1916, the contestant, who is the appellant here, and the contestee, who is the appellee, were rival candidates for the office of Governor. On the face of the official returns made to the Secretary of State and canvassed by him the contestee received the highest number of votes given for any candidate for the office. The Secretary of State thereupon, as the law provides, declared the contestee elected to the office of Governor of Arizona, and in due course issued and delivered to the contestee a certificate of his election. The superior court in which the contest was tried found that the number of legal votes cast at said election for the contestee, Thomas E. Campbell, was 28,151, and that the number of legal votes cast at said election for the contestant, George W. P. Hunt, was 28,084. Thereupon the court have judgment that said contestee, Thomas E. Campbell, was duly elected to the office of Governor of the state of Arizona at said election, and was and is entitled to the said certificate of election issued to him.

Exceptions to the pleadings upon which the contest case was tried have been taken by both parties. In view, however, of the stipulation entered into by the parties for the trial of the contest, and the parties having joined issue upon the disputed points, neither party being restricted in the offer of proof by reason of any technical objection to the pleadings, and no prejudice resulting either to the contestant or contestee, it is obvious that this case ought to be decided upon its merits, and these objections to the pleadings be deemed waived by the respective parties.

The official returns of the canvass of precinct No. 1 in Douglas, Cochise county, show that contestant received 229 votes and the contestee received 106. During the progress of the contest trial the contestee amended his answer and attacked this precinct on the ground of fraud. It is alleged in the amended answer that:

"By reason of misconduct on the part of the election board of precinct No. 1 in Douglas, Cochise county, Arizona, at said election, a large number of ballots that had been properly and duly marked by the voters who cast the same so as to indicate their intent to vote for contestee were fraudulently changed by members of said election board by the partial erasure of the marks placed thereon by said voters and by fraudulently placing other marks thereon and said ballots so fraudulently changed and marked by said election board were wrongfully counted for contestant, and the number of these were 123 or more."

Thenceforward the heat of the contest raged furiously around Douglas No. 1. It became the very head and front of the engagement, and its disposition is decisive of the contest. Nothing apparently has been left undone to picture before the court the conditions existing there on election day, even to the most minute particulars and trivial circumstances.

The Thiel Detective Service Company of Los Angeles, California, was employed in behalf of the contestee to furnish evidence regarding conditions in Douglas No. 1. Quite a number of their men were detailed upon the case with instructions to get acquainted with persons who had knowledge of what went on in Douglas, and especially with the election board, and particularly Art Pearson. They appear to have done their work thoroughly in ferreting out every clue and circumstance obtainable. Attorneys for contestant assert that these detectives admit:

"That their chief asset in the successful conduct of their 'profession' is the natural or acquired habit of successful mendacity and deceit."

This assertion is based, perhaps, only upon their inference from the evidence, but it does appear that an ability to be effective or obtain a given result is an important factor in obtaining and upbuilding a profitable employment in this line of endeavor. Like the pupils of Wackford Squeers, who, before spelling the word, were told to go out and wash WINDER, and, after the washing is done, come bank and spell winder. The evidence they produce, however, when competent and material, is legitimate evidence, and an appellate court will attach to it that weight and that credibility given by the trial court; no more, no less. Wide publicity has been given to alleged fraudulent practices in this Douglas No. 1. In this country every individual has a right to private judgment has, no doubt, been published many times, and perhaps so often tinctured, as might be expected, with party bias or with party prejudice. In the fervor of political contests this must be expected. Then we have the warmth of discussion in the oral argument of counsel before the bar of the court, in which this charge of fraud is vehemently asserted, to invigorate our solitary study of the case in the dispassionate temperature of the judicial chambers. All of this stimulates our powers for cool and solid judgment. Recollecting the weakness of our judgments and the vain presumption of hastily deciding on important subjects without mature deliberation and the thorough knowledge of the facts presented by the record in a given case, the people have adopted a legal code by which the judgments of their courts are to be regulated, and which body of rules their judicial officers are commanded to obey, and by this legal code the court is not permitted to found its decrees upon public rumor, or upon evidence about which a mere theory, suspicion, or conjecture may be maintained. The opinions of the court are published to the world and remain upon its archives for all time, and their errors and injustice, if any, may be detected and exposed. We have this high responsibility at the bar of the public. And though it may be thought by some that a court would be disposed to promote the views of a party, such considerations would make it tremble at the idea of doing this were it not moved otherwise by the pride of its reputation and honor.

To be impartial and correct is therefore our duty. If, under the facts of the case and by the rules of law, the contestant is entitled to the votes of this precinct, he ought to have them, and this court must not be deterred in the performance of a duty so plain by any reason of the political affiliation of its members, or because to some its judgment for considerations of such a character may appear not to be impartial unless it be against the contestant or unfair to him. It must be kept in mind that no court in Christendom is permitted to found its judgment upon mere suspicion and conjecture of wrongdoing, but, unless there be satisfactory evidence to the contrary, to look upon the acts of public officials with a presumption of their rectitude and good faith.

"In no case is it more imperative than in election contests that the maxim should be applied that the burden of proving fraud is upon him who alleges it. It ought never to be inferred from slight irregularities, unconnected with incriminating circumstances; nor should it be held as established by mere suspicions, often having no higher origin than partisan bias and political prejudices." Bingham v. Broadwell, 73 Neb. 605, 103 N.W. 323.

Thus prepared, we shall look at the charge of fraud in Douglas precinct No. 1, and, putting it with the recorded facts in the retort and by the aid of legal principles then with some violence of fire, discover, if we may, what of dross and alloy is to be found in all this.

At first the court rejected the entire precinct, but later, on more mature reflection and deliberate consideration, the ruling was set aside. Said the court:

"I have heard the evidence, and I now give those votes to Campbell that I feel were taken from Campbell and given to Hunt. By Mr. Ives: When? By the Court: At some time during the count or shortly afterward, somewhere along there. By Mr. Bullard: And the tally sheets should show 42 more votes for Campbell and 42 less for Hunt? By the Court: Yes; that is all."

The contestee assigns error as follows:

"The court erred in rescinding its ruling striking out the precinct of Douglas No. 1 for the reason that the evidence shows gross misconduct and actual fraud to have been committed by the election officers therein as follows: The court found from the evidence that 42 ballots cast for appellee, and which should have been counted for appellee were fraudulently changed by said election officers and counted for appellant, and that 5 additional ballots which as originally marked by the voters should not have been counted for appellant were fraudulently changed and fraudulently counted for appellant; that both said 42 ballots and said 5 ballots showed upon their face that they had been so fraudulently changed; that certain other ballots are shown to have been fraudulently changed by said election officers in the interest of a certain candidate for the office of justice of the peace; that the evidence indicated that, in addition to said 47 ballots, certain other ballots, the number of which may not with certainty be ascertained, were fraudulently changed in the interest of appellant and counted for appellant; and that therefore the counting of said 42 ballots for appellee...

To continue reading

Request your trial
26 cases
  • Thompson v. Boling
    • United States
    • Kentucky Court of Appeals
    • September 29, 1931
    ... ... appears, does not constitute a vote for any one. 20 C.J. § ... 187, p. 158; 9 R.C.L. § 131, p. 1132; Hunt v ... Campbell, 19 Ariz. 254, 169 P. 596; O'Connell v ... Mathews, 177 Mass. 518, 59 N.E. 195; Flanders v ... Roberts, 182 Mass. 524, 65 N.E ... ...
  • Verdugo v. Industrial Commission
    • United States
    • Arizona Supreme Court
    • January 14, 1972
    ...question.' This court has adhered to the general rule of law that public officers are presumed to have done their duty, Hunt v. Campbell, 19 Ariz. 254, 169 P. 596 (1917); Industrial Commission of Arizona v. J. & J. Const. Co., 72 Ariz. 139, 231 P.2d 762 (1951), and that acts of public offic......
  • Thompson v. Boling
    • United States
    • United States State Supreme Court — District of Kentucky
    • September 29, 1931
    ...where nothing more appears, does not constitute a vote for any one. 20 C.J. sec. 187, p. 158; 9 R.C.L. sec. 131, p. 1132; Hunt v. Campbell, 19 Ariz. 254, 169 P. 596; O'Connell v. Mathews, 177 Mass. 518, 59 N.E. 195; v. Roberts, 182 Mass. 524, 65 N.E. 902; In re Flynn, 181 Pa. 457, 37 A. 523......
  • Peterson v. Billings
    • United States
    • Montana Supreme Court
    • December 19, 1939
    ...that it may be identified. Typical of the language used is that found in two cases holding a check mark insufficient. In Hunt v. Campbell, 19 Ariz. 254, 169 P. 596, 611, the court uses this language: “It evinces an honest effort to comply with the law,” and later in speaking of another ball......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT