Mathewson v. Campbell

• Decision Date: 07 February 1914
• Docket Number: 18,825
• Citation: 138 P. 637,91 Kan. 625
• Parties: JOHN E. MATHEWSON, Appellee, v. JESSIE CAMPBELL, Appellant
• Court: Kansas Supreme Court

138 P. 637

91 Kan. 625

JOHN E. MATHEWSON, Appellee, v. JESSIE CAMPBELL, Appellant

No. 18,825

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Brown district court; WILLIAM I. STUART, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ELECTION CONTEST--Defective Ballots--Identification Marks--Review. In an appeal from the district court in a proceeding to contest an election, the result being determinable from the markings upon the face of the ballots and where the questions are presented on the appeal without oral testimony and practically as they were presented in the trial court, the supreme court is required to determine what votes should have been counted and what should have been rejected substantially as it would have done if the same questions had been submitted to it in an original proceeding in quo warranto.

2. SAME--Ballots--Certain Marks Not Identification Marks. Certain official ballots delivered to the voters had printed thereon short horizontal marks in the middle of the squares at the right of the names of the candidates. Some of the voters completed cross marks by penciling a line across the printed horizontal mark, and as the defect resulted from the printing and preparation of the official ballot and there is nothing to show a fraudulent purpose it is held that the defect did not destroy the validity of the ballot.

3. SAME. The fact that voters wrote the name of "Theodore Roosevelt," which was the name of a candidate, in the blank column under the head of "Presidential Electors" and placed cross marks in the squares opposite did not, of itself, render the ballots invalid nor prevent the counting of the same in favor of the candidates for other offices whose names were legally marked upon the ballots.

4. SAME. The changing of a ballot furnished to an absent voter, and which had been printed and prepared for the district where he tendered his vote, in an effort to adapt it to the district in which he resided and where the vote was to be canvassed and Counted can not be regarded as a distinguishing mark, nor will such change, of itself, render the ballot invalid.

W. F. Means, and Sample F. Newlon, both of Hiawatha, for the appellant.

F. M. Pearl, of Hiawatha, for the appellee; A. M. Harvey, of Topeka, of counsel.

OPINION

JOHNSTON, C. J.:

This proceeding involves the title to the office of county clerk of Brown county. At the general election in 1912 Jessie Campbell and John E. Mathewson were candidates for that office. According to a canvass of the votes Jessie Campbell received 2349 votes as against 2331 received by John E. Mathewson, and the certificate of election was therefore issued to her. A contest was instituted by Mathewson, and the contest court found that he had received 2314 while Campbell had received but 2312 votes, and he was declared to have been legally elected. While all the ballots cast were examined by the contest court, the validity of but one hundred and twenty-two of them was actually in dispute. Of the challenged ballots twelve were counted for each of the contending parties, thirty-four which had been cast in favor of Mathewson were deemed to be invalid and were not counted, and sixty-four of them that were cast in favor of Campbell were held to be illegal in some particular and were rejected. She appealed from the decision and findings of the contest court, and on the appeal the challenged ballots were examined by the district court, and that tribunal found that nine of them were legal ballots which should be counted for Mathewson, and that nine of them were legal ballots in favor of Campbell. The remaining one hundred and four ballots, thirty-six of which had been cast for Mathewson and sixty-eight for Campbell, were found to be illegal, and were accordingly rejected. The result as declared was that Mathewson had received a total of 2311 votes and Campbell 2309.

The decision of the district court has been brought here for review, and it is contended that the findings of that court, based on evidence as to distinguishing marks and defects in the ballots, should be regarded as settling the questions of fact. It is conceded that an appeal is given by statute, and on the appeal the challenged ballots are presented here in the same form that they were presented in the district court. This court can no more rest its decision on the findings of the trial court, nor escape the responsibility of determining the validity of the challenged ballots, than if the contest for the office had been brought in this court in an original proceeding in quo warranto. The decision of that court is, of course, entitled to consideration, but, as has been frequently decided, where the case comes before this court on written or documentary evidence practically as it was presented in the district court, this court must decide for itself what the facts establish, substantially as it would if the case was original in this court. (Moore v. Pye, 10 Kan. 246; Robinson v. Melvin, 14 Kan. 484; Durham v. C. C. & M. Co., 22 Kan. 232; Bank v. McIntosh, 72 Kan. 603, 84 P. 535; Belknap v. Sleeth, 77 Kan. 164, 93 P. 580.)

In this case there was no oral evidence, and none that was conflicting. The legality of each ballot is to be determined solely by the markings on its face, and all that are in question are presented here just as they were in the district court. The contested ballots fall into few classes, and not all of these require consideration.

The first that will be considered is a class consisting of eight ballots, in which the cross marks had been made in squares by penciling one line across a mark which the printer had made in printing the ballot. In some unexplained way the printer had made a short horizontal mark in the center of the squares in a number of ballots, thus, [-]. These were sent out and delivered to the voters as valid ballots, and in marking the ballots some of the voters made a perpendicular mark with a lead pencil across the printed mark, thus, [+]. Seven of these votes were in favor of appellant Campbell and one in favor of Mathewson. This defect resulted from the form of the official ballot delivered to the voters, and might be called an invited defect. The voter is not responsible for the form of the ballot, nor for the mistakes made in its preparation. He knows of the statute which provides that no ballot shall be delivered to voters except those printed and indorsed as the law requires, and he naturally accepts without question those that are delivered to him with official authentication. He should not lose his vote where he, in good faith, marks and casts his official ballot merely because of an irregularity in the printing of it. It has been held that not every departure from the prescribed forms operates to destroy a ballot, and that slight errors of the officers in the preparation and printing of the ballots which are furnished voters will not invalidate an election or a ballot otherwise legal. It was held that the voting of ballots printed on colored paper and delivered to the voters by the officers did not destroy the validity of the ballots, although the statute expressly provided that they should be printed on white paper. (Boyd v. Mills, 53 Kan. 594, 37 P. 16, 25 L. R. A. 486, 42 Am. St. Rep. 306.) In another case it was decided that the printing and delivery to the voters of ballots without a party emblem, and where the voters placed a cross in the circle at the head of the ballot, they were not invalidated by the absence of the required party emblem. (Ogg v. Glover, 72 Kan. 247, 83 P. 1039.) Again, it was ruled that ballots...