De Long v. Brown

• Decision Date: 10 April 1901
• Citation: 113 Iowa 370,85 N.W. 624
• Parties: DE LONG v. BROWN.
• Court: Iowa Supreme Court

113 Iowa 370

85 N.W. 624

DE LONG

v.BROWN.

Supreme Court of Iowa.

April 10, 1901.

Appeal from district court, Tama county.

Election contest over the office of county superintendent of schools. From judgment declaring the contestant elected, the incumbent appeals. Reversed.Caldwell & Walters and R. P. Fitzgerald, for appellant.

G. R. Struble, for appellee.

LADD, J.

The statute requires the auditor to carefully preserve the ballots received from the judges of election for six months. Section 1142, Code. The particular manner or place is not pointed out. If carefully done, this precludes any reasonably well founded suspicion that they may have been changed or tampered with, and in such event they form the best evidence of who has been elected. With their integrity thus fully established, they are silent witnesses which can neither err nor lie. And it is generally held, where the manner or mode of preservation has been enjoined by statute, a substantial compliance therewith must be shown, preliminary to the introduction of ballots in evidence. Davenport v. Olerich, 104 Iowa, 194, 73 N. W. 603, and cited cases. Mentzer v. Davis, 109 Iowa, 528, 80 N. W. 557; Hudson v. Solomon, 19 Kan. 177; Sone v. Williams (Mo. Sup.) 32 S. W. 1016. See decisions collected in 10 Am. & Eng. Enc. Law, 732, 830; also in briefs to Tebbe v. Smith (Cal.) 41 Pac. 454, 29 L. R. A. 673. The rule seems to prevail in Texas that if the ballots come from their lawful custodian in obedience to an appropriate writ, and are produced in court apparently intact, they are prima facie admissible. Hunnicutt v. State, 75 Tex. 233, 12 S. W. 106;Gray v. State (Tex. Civ. App.) 49 S. W. 699. While these circumstances, and also the presumption obtaining that an officer has performed his duty, should be given weight, we do not think they alone afford sufficient assurance of the identity and genuineness of the ballots. The official count as finally declared with respect to county officers is the ultimate conclusion of many officers presumed to have faithfully performed their respective duties, and concerning the correctness of which a very strong presumption obtains,--so strong that it ought not to be overcome by evidence, peculiarly susceptible to change, unless proven, not merely presumed, to have been properly preserved. This preliminary proof, unless waived, is essential to the competency of the ballots as evidence for any purpose as against the official count, and certainly no averment in the pleading is required as a basis for an objection to such competency. In Furguson v. Henry, 95 Iowa, 439, 64 N. W. 292, it was merely held that, although the ballots had been received in evidence, the incumbent might show them not to be the same as voted, or counted by the judges of election. What was said of the ballots coming through regular channels was by way of argument. The character of preliminary proof required was neither involved nor decided.

2. But the question of the competency of the ballots as evidence is one of fact, to be determined by the trial court; and, as the action is by ordinary proceedings, its finding cannot be disturbed unless without sufficient support in the evidence. Tebbe v. Smith (Cal.) 41 Pac. 455, 29 L. R. A. 673;People v. Livingston, 79 N. Y. 290;Hughes v. Holman (Or.) 32 Pac. 298;People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141. But the weight to be given to evidence and its admissibility are different matters. For this reason it is often difficult to determine whether the ballots, although the irregularities in their preservation may not justify their rejection as evidence, should be accepted, when their actual condition is disclosed, as better proof of who has been elected than the official count. In other words, there are always the two issues in such a case: (1) Were the ballots so preserved as that they should be received in evidence? and, (2) if so received, are they, in view of manner in which they have been kept, and their condition when examined, entitled to greater credit than the count as made by the officers of election?

3. The evidence disclosed that connected with the auditor's office is a vault, and below that another, in the basement, reached from the first by an iron stairway. The first was entered from the office through iron doors having a combination lock, and there appears to have been no doors to the second or lower vault, though it had an outside window, hung by cords and weights. The desk of the auditor and his deputy was so located that they could notice persons enter the vault, but could not see them after having gone in. The ballots before being received had been placed in paper envelopes or sacks about 6x14 inches, and 16 inches deep. These had been fastened by seals when received by the auditor, except one which was broken in order to extract the poll book, inadvertently included. The sacks when received were put in the upper vault, on the floor, under the table, but with no other covering, and remained there until after the canvass by the board of supervisors. They were then taken to the lower vault and placed on a box about a foot above the floor, and there remained until the trial before the contest board, said by appellant to have been 49 days after the election. At that time the sealing wax on some of the sacks had been cracked or broken by handling, but not so as to release the cords fastening them. The wax had been stamped with the seals of the respective townships, but not always making a good impression. In one instance the wax did not cover the cords, and by untying these the sack could be opened halfway without tearing. The seal of another was broken, but not so as to open, and the ends of the wires on which the ballots were strung were twisted, but not sealed. Still another did not have the cord through one side, and a space of 6 to 8 inches was not closed. In four of the sacks or envelopes the ballots were not folded, and in three they were not strung on wires. In another they were not wired, and there were four ballots more than the...