Martin v. Miles

• Decision Date: 17 April 1894
• Citation: 58 N.W. 732,40 Neb. 135
• Parties: MARTIN v. MILES.
• Court: Nebraska Supreme Court

40 Neb. 135

58 N.W. 732

MARTIN

v.MILES.

Supreme Court of Nebraska.

April 17, 1894.

Syllabus by the Court.

1. In a contest of election the ballots cast at the election constitute the primary evidence on which to determine the rights of the respective parties. It must appear, however, that these ballots 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 up by the several election boards. Albert v. Twohig, 53 N. W. 582, 35 Neb. 563, followed.

2. Where the testimony in a contested case showed that the ballots offered in evidence had been by the county clerk sent to the secretary of state, by whom, about a month afterwards, they had been returned to such county clerk in a grain sack, tied with a string, and not sealed, or in any other way fastened so as to afford evidence that the same had not been tampered with, and there was no evidence negativing the possibility that the string fastening said grain sack might have been untied, and its contents altered, held, that such ballots should not have been considered.

Appeal from district court, Cheyenne county; Neville, Judge.

Election contest by Leroy Martin against William P. Miles. From a decision in favor of said Martin, said Miles appeals. Reversed.

William P. Miles, George W. Heist, and Henry St. Rayner, for appellant.

H. D. Rhea, for appellee.

RYAN, C.

At the general election held in Cheyenne county, Neb., on November 8, 1892, the parties to this case were candidates for the office of county attorney of said county. The canvassers of the votes cast at said election declared that the incumbent had received 463 votes and that the contestant had received 462 votes for the aforesaid office of county attorney. Upon a trial in the county court it was found and adjudged that there had been cast for the incumbent 471 votes, and for the contestant 454 votes, a majority of 17 for the incumbent. On appeal in the district court of said county it was adjudged that contestant had received 503 votes, while the incumbent had received but 474, a majority of 29 in favor of the contestant. The incumbent appeals to this court.

It is deemed necessary to consider but one question, for reasons which will hereafter require no explanation. On the trial in the district court Daniel McAlleese, county clerk of Cheyenne county, testified as follows: “Q. You may state to the court if you have the ballots that were used and voted at the last general election, held November 8, 1892, in your possession. A. I could not say whether they were the same or not. They were sent to Lincoln to be examined in a case. I don't know what it was,--an amendment, I think, to the constitution,--and they were. returned again. I can't say. I don't know whether they were the same or not. Q. Are they the same ballots that were returned to you by the judges of election? A. I cannot tell. They were the same that were returned from Lincoln. Q. And the ones returned from the judges and clerks of election? A. They may be. I would not swear to it. * * * Q. How many packages did you send to Lincoln? A. I don't know how many. I think about 15. Q. 15 districts? A. Districts or precincts. Q. Were the same number sent back to you? A. I did not count them. It was my deputy.” On cross-examination this witness testified as follows: “Q. How long were they [the ballots] away from your office? A. I am not sure about that,--the exact time. Q. About how long? A. I think about a month. Q. And you do not know whether these ballots you say that you have in the county clerk's office now are the same ballots that were sent to Lincoln by you? A. I would not swear positively that they were, but I think they are. Q. Can you swear positively that they are all or the same ballots that were sent to Lincoln by you? A. I can't swear, because I did not count them.” On re-examination this witness testified as follows: “Q. By what authority did you send the ballots to Lincoln? A. By authority of the auditor of public accounts. By the Court: Do you mean the state auditor? A. Yes, sir; the secretary of state. Q. In what manner did you send them? A. My deputy sent them. * * * Q. Were they sent as directed by the auditor of public accounts? A. Yes, I presume they were. Q. In what manner were they returned, and by whom? A. My deputy can tell you that. I don't know. We have no instructions for their return whatever. By the Court: Do you know who they were received from? A. I do not. Q. Does your deputy know? A. He may know.” James McMullen the deputy clerk of said county, was then called, and testified that the ballots in question were sent to Lincoln by authority of an act passed by the state legislature, and certified to the county clerk of Cheyenne county by the secretary of state. This order was in the following language: “State of Nebraska, Office of the Secretary of State, Lincoln, Feby. 10, 1893. Danl. McAlleese, Esq., County Clerk, Cheyenne County, Sidney, Nebraska--Dear Sir: Your attention is respectfully called to house roll number 112, an act to recount the ballots cast for and against an amendment to the constitution relating to executive officers, and amendment to the constitution relating to permanent school funds, on the 8th of November, 1892, and to declare the result: Beit enacted by the legislature of Nebraska: ‘Sec. 1. County clerks of each county of this state are hereby required to forward on or before the 15th day of February, 1893, all ballots and poll books returned to said clerks by the judges and clerks of election held on the 8th day of November, 1892. * * * Sec. 5. Any county clerk failing to transmit the...