Kelso v. Wright

• Citation: 81 N.W. 805,110 Iowa 560
• Parties: KELSO v. WRIGHT.
• Decision Date: 07 February 1900
• Court: United States State Supreme Court of Iowa

110 Iowa 560

81 N.W. 805

KELSO

v.WRIGHT.

Supreme Court of Iowa.

Feb. 7, 1900.

Appeal from district court, Lyon county; John F. Oliver, Judge.

This is a contest over the right to hold the office of member of board of supervisors of Lyon county. The board of contest found in favor of the incumbent. On appeal to the district court the incumbent was declared elected by a majority of one. Contestant appeals. Affirmed.Greenleaf & Greenleaf and Simon Fisher, for appellant.

Parsons & Riniker, for appellee.

DEEMER, J.

Lyon county is divided into districts for the purpose of electing members of the board of supervisors. District No. 1 is composed of four townships, to wit, Elgin, Grant, Liberal, and Midland. In his statement of intention to contest, plaintiff complainedof the vote in but two of these townships, to wit, Grant and Elgin. He set out the names of the parties who he claimed voted illegally in these townships. The incumbent, in his answer, stated that illegal votes were cast for contestant in Midland and Liberal townships, but that he did not know the names of these illegal voters. Section 698 of the Code of 1873, which was in force when these proceedings were had, reads as follows: “When the reception of illegal, or the rejection of legal, votes is alleged as a cause of contest, the names of the persons who so voted, or whose votes were rejected, with the precinct where they voted or offered to vote, shall be set forth in the statement.” At the trial, incumbent was permitted to introduce evidence of an illegal vote cast by one Wheatley in Midland township. This is claimed to be error, because the incumbent did not, in his answer, give the name as one of the persons who had voted illegally. One of the ballots introduced by contestant was not indorsed with the initials of a judge of election, nor did the names of any of the judges of election appear thereon. This ballot was rejected by the court, and of this complaint is made. It is claimed that one Miller, who voted for incumbent was not a qualified voter. One of the ballots was marked as follows:

IMAGE

It is claimed that the marks thereon are capable of being used for the purpose of being identified, and that it should not have been counted. Incumbent asked for and procured a recount of the votes cast in Liberal and Midland townships. This is said to be error, because incumbent did not name the persons who had voted illegally, and did not file a bond, as required by sections 697 and 698 of the Code of 1873. Of these questions in order.

1. The statute we have quoted with reference to what the statement of contest must show seems to have reference to the paper filed by contestant as the basis for his proceedings. Whether it applies to the answer filed by the incumbent may well be doubted, but the point need not be decided, for the reason that the answer filed by incumbent was not attacked in any manner, and was evidently treated as sufficient. But, whether so treated or not, it was sufficient, in the absence of attack, to justify the rulings made by the court in admitting the evidence as to Wheatley's qualifications. Indeed, no objection or exception seems to have been taken to the action of the court in receiving the evidence.

2. Section 25 of chapter 33 of the Acts of the 24th General Assembly provides that “no ballot without the official endorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted.” Section 21 of the same act provides that one of the judges shall give to the voter one, and only one, ballot, on the back of which such judge shall indorse his initials in such manner that they may be seen when the ballot is properly folded. It is manifest that the ballot which did not bear the...