Mauck v. Brown

• Decision Date: 19 December 1899
• Docket Number: 10,717
• Citation: 81 N.W. 313,59 Neb. 382
• Parties: H. H. MAUCK, APPELLEE, v. E. D. BROWN, APPELLANT
• Court: Nebraska Supreme Court

81 N.W. 313

59 Neb. 382

H. H. MAUCK, APPELLEE, v. E. D. BROWN, APPELLANT

No. 10,717

Supreme Court of Nebraska

December 19, 1899

APPEAL from the district court of Nuckolls county. Heard below before HASTINGS, J. Reversed.

Reversed.

W. F Buck and S. A. Searle, for appellant:

Ballots on which the name of one judge only was indorsed should be counted. A voter who complies with the law, and marks his ballot correctly should not be disfranchised for errors fraud or negligence of election officers. See Horning v Burgess, 77 N. W. [Mich.], 446; People v. Wood, 148 N.Y. 142; People v. Bates, 11 Mich. 362; Lindstorm v. Board of Canvassers, 94 Mich. 467; Bragdon v. Navarre, 102 Mich. 259; People v. Avery, 102 Mich. 572; Moyer v. Van De Vanter, 41 Pac. [Wash.], 60; State v. Fransham, 48 Pac. [Mont.], 1; Cook v. Fisher, 69 N. W. [Ia.], 264; Parvin v. Wimberg, 30 N. E. [Ind.], 790; Gass v. State, 34 Ind. 425; Dobyns v. Weadon, 50 Ind. 298; Mustard v. Hoppess, 69 Ind. 324; Duncan v. Shenk, 109 Ind. 26; Storm v. Stevens, 104 Ind. 46; Stout v. Board of Commissioners, 107 Ind. 343; May v. Hoover, 112 Ind. 455; Martin v. Pifer, 96 Ind. 245; Middleton v. Greeson, 106 Ind. 18; In re Douglas, 58 Barb. [N.Y.], 174; Anderson v. Likens, 47 S.W. [Ky.], 867.

Spoiled ballots, with identification marks, erasures and other unnecessary marks, are illegal and void, and, when intentionally so marked by the voter, should not be counted. See Spurgin v. Thompson, 37 Neb. 45; Taylor v. Bleakley, 39 Pac. [Kan.], 1045; People v. Parkhurst, 53 N.Y.S. 598; Church v. Walker, 72 N. W. [S. Dak.], 101.

The statutory directions for marking ballots are mandatory, and ballots marked in violation of the statute should not be counted. See Martin v. Miles, 46 Neb. 772; Sego v. Stoddard, 36 N. E. [Ind.], 204; Sanner v. Patton, 40 N. E. [Ill.], 290; In re Vote Marks, 17 R. I. 812; Curran v. Clayton, 86 Me. 42; Vallier v. Brakke, 64 N. W. [S. Dak.], 180; McMahon v. Polk, 73 N. W. [S. Dak.], 77; McKittrick v. Pardee, 65 N. W. [S. Dak.], 23; Parmlee v. Healy, 64 N. W. [S. Dak.], 186; Zeis v. Passwater, 41 N. E. [Ind.], 796; Pennington v. Hare, 62 N. W. [Minn.], 116; Christopherson v. Common Council, 75 N. W. [Mich.], 445; Attorney General v. Glaser, 102 Mich. 405; Curran v. Clayton, 29 A. [Me.], 930; Tebbe v. Smith, 41 Pac. [Cal.], 454; Parker v. Orr, 41 N. E. [Ill.], 1002; People v. Board of Canvassers, 156 N.Y. 36; Hope v. Flentge, 140 Mo. 390; Ellis v. May, 58 N. W. [Mich.], 483; Attorney General v. McQuade, 94 Mich. 439; People v. Board of Canvassers, 129 N.Y. 395; State v. Walsh, 25 A. [Conn.], 1; Baxter v. Ellis, 15 S. E. [N. Car.], 939; Bechtel v. Albin, 33 N. E. [Ind.], 967; Van Winkle v. Crabtree, 55 Pac. [Ore.], 831; Whittam v. Zahorik, 59 N. W. [Ia.], 62.

Robert Ryan, also for appellant.

G. W. Stubbs, W. D. Oldham and Frank Irvine, contra:

Rulings below as to validity of ballots can only be reviewed in a proceeding in error. See Scroggin v. National Lumber Co. 41 Neb. 195; Ainsworth v. Taylor, 53 Neb. 484; Troup v. Horbach, 57 Neb. 644; Te Poel v. Shutt, 57 Neb. 592; Estep v. Schlesinger, 58 Neb. 62; Brotherton v. Brotherton, 12 Neb. 72; State v. Lancaster County, 13 Neb. 223; Morse v. Engle, 26 Neb. 247; Prentice Brownstone Co. v. King, 39 Neb. 816; Campbell v. Farmers & Merchants Bank, 49 Neb. 143; Dixon Nat. Bank v. Omaha Nat. Bank, 54 Neb. 796; Lowe v. Riley, 57 Neb. 252; Hayden v. Hale, 57 Neb. 349; Holmberg v. Hauck, 16 Neb. 337; Weigel v. City of Hastings, 29 Neb. 379; State v. Tibbets, 52 Neb. 229.

References as to correctness of rulings relating to ballots: State v. Russell, 34 Neb. 121; People v. Holden, 28 Cal. 136; Wyman v. Lemon, 51 Cal. 273.

OPINION

See opinion for statement of the case.

HARRISON, C. J.

The two parties to this action were candidates for the office of county attorney of Nuckolls county at the general election held November 8, 1898, and as a result of a canvass of the votes cast the appellant was declared elected, and the certificate of election was issued to him. It was determined that he had received 1,285 votes, and the appellee 1,284. The appellee, who had been for nearly two years prior to, and was at the time of, the election county attorney, refused to surrender the office, and instituted in the county court this action--a contest of the election. The contestant was successful in the county court, and the defeated party appealed to the district court, where the cause was tried and judgment rendered for the contestant, H. H. Mauck, and the contestee, E. D. Brown, has perfected an appeal to this court.

The ballots cast at the election were obtained and counted by the county court, and it was decided that the appellee had received 1,277 votes and the appellant 1,273, or that for the former there was a majority of four. In the district court the ballots were examined, and as the result of another count it was settled that for the appellee there were 1,277 legal votes and for the appellant 1,272--a difference of five in favor of the former, who was adjudged entitled to the office. In the trial courts the ballots were produced, identified and received in evidence, there being no further evidence introduced or offered.

It is urged for appellee that there can be no examination of the questions of litigation, for the reason that the evidence is not in the bill of exceptions. In the preparation of that document the counsel for appellant had attached thereto copies of the ballots, or exhibits, to which they desired to direct the attention of this court; but these, at the time of the settlement of the bill, were stricken out of it; hence are not here for any purpose. After the ballots had been counted in the district court, as to the disposition made of them, there appears the following statement: "The Court: All of said ballots have been admitted in evidence and examined by the court, resealed carefully in the presence of the court, and returned and redelivered to the custody of the county clerk of Nuckolls county, Nebraska, from whom they were obtained, and are numbered from 1 to 18 in the order in which they appear in the tally and result of their count, which has been kept by the court." The certificate of settlement and allowance of the bill of exceptions is as follows: "April 6, 1899. Both parties appear by attorney for the settlement of the proposed bill of exceptions in this cause. I, W. G. Hastings, judge of the seventh judicial district, and presiding at the trial of the above entitled cause, do hereby certify that this proposed bill of exceptions, as corrected by amendments allowed, contains all the testimony introduced and offered on said trial, except the original ballots, together with all objections made thereto, and the exceptions taken thereon; and I approve, settle and sign the same as the bill of exceptions in this case, and order that the same be made a part of the record in said cause in said court. The original ballots, marked in packages exhibits 1 to 18 inclusive, were at the trial carefully sealed and redelivered to the clerk of Nuckolls county, and are intended to be included in this bill of exceptions, and, when added, constitute all the evidence adduced in this cause, together with this bill. W. G. Hastings, Judge." This discloses that both parties were represented when the bill was settled and that therein was "intended to be included" the ballots in the packages in which they were placed at the close of the trial. April 10, or four days later, on application on behalf of the appellant, the trial judge ordered the county clerk of Nuckolls county to deliver the packages of ballots to the clerk of the district court and he to attach them to the bill of exceptions, and the order apparently was obeyed, the packages of ballots were, with the bill of exceptions, delivered by the clerk of the district court to the sheriff of the county, to be transmitted to the clerk of the supreme court, and the duty with which the sheriff was charged, it appears, has been performed. It might probably have been better practice to have obtained an order for the presence of the ballots at the time and place of the settlement of the bill; but, in the absence of any claim of anything wrong about the exhibits as attached, we will overrule the objections to the consideration of the bill.

It is argued for appellee that the matters of which appellant asks consideration are of alleged errors committed by the trial court, and will not be reviewed in an appeal. As we view the questions presented, they are rather of the sufficiency of the evidence received and weighed to sustain the findings and judgment, proper inquiries in an appeal proceeding.

There were discovered during the count of the ballots nine with the name of but one judge of election on the back of each. Seven of these were favorable to the election of appellant and two to that of appellee. They were not counted, and that they were not is of the complaints of appellant. In the decision of the case of Orr v. Bailey, 59 Neb. 128, 80 N.W. 495, similar questions were presented and examined, and it was determined that the provisions of the ballot law, that the signatures of two judges of the election should be written on the back of the ballot before given to the voter, and if not, the ballot should not be deposited in the ballot-box, and if it was, should not be counted, were mandatory, and ballots not so identified, or on the back of which there appeared the signature of but one judge of the election, should not be counted. A re-examination of the question at this time does not change our views of the matter; hence this objection must be overruled.

It will probably be best to here insert a statement of some of the principal prescriptions of the statute relative to the...