[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Decided
January, 1906.
Error
from Lyon district court; FREDERICK A. MECKEL, judge.
STATEMENT.
THE
official returns disclosed that G. F. Arnold was elected to
the office of county commissioner from the second
commissioner district of Lyon county over his opponent, E.
Moorhead. In due time Moorhead commenced a contest for the
office, alleging errors and mistakes on the part of the
judges, clerks and canvassers of election in ascertaining and
declaring the result of the election whereby legal ballots in
his favor were rejected, whereby the benefit of ballots cast
for him was lost in keeping and footing the tally-sheets,
whereby ballots for him were counted for the contestee, and
whereby defective and illegal ballots were counted for the
contestee. The contestee denied the contestor's claims,
and asserted that ballots for him had been thrown out and
that mistakes in counting and tallying had been made against
him. A contest court was duly organized and a trial begun.
Proceedings were then had as follow:
"And
thereupon . . . the said clerk produced in court the said
ballots cast in Americus precinct. . . .
"Suggestion
by the court that the county clerk be sworn and show the
custody and identity of the ballots.
"Thereupon
the swearing and testifying of W. F. Eggers, as county clerk,
was waived by the attorneys for the contestee.
"Thereupon
the clerk in open court opened the ballots, which were
contained in a gunny-sack and strung upon a cord.
"It
was here agreed by the attorneys for the contestee and
contestor that the attorneys should examine the ballots, and
such as were conceded to be lawful and valid ballots should
be counted for the respective parties, and such as should be
excepted to by either party should be passed to the court,
marked for identification, and reserved for the further
consideration of the court.
"In
pursuance of the said agreement the ballots were brought into
court in the order of precinct as named in the statement of
contestor, and counted in the same order.
"All
of the ballots of all of the precincts of the said
commissioner district were counted except the ballots from
Phillips and Reading precincts, and the contested ballots
from the other precincts. Each of the parties took an
objection to one ballot for each the contestor and contestee
of the ballots from Americus precinct, which objection was
overruled and both ballots counted, one for each party, both
parties agreeing they were good ballots. And thereupon the
court adjourned until nine o'clock A. M. of the 24th of
December, 1904.
"On
December 24, 1904, the court having convened and all parties
being present, it was ordered that said court proceed, and
the clerk was ordered to produce the balance of the ballots
cast at said election in the said district, and they were
produced and counted in the following order: (1) Phillips
precinct; (2) Reading precinct.
"The
undisputed ballots having been counted by the court, the
court then heard arguments of the attorneys touching the
validity of the ballots which each side claimed should not be
counted.
"Thereupon
the court took the matter under advisement until the 27th day
of December, 1904, and declared the court adjourned until
that date, at nine o'clock A. M.
"At
nine o'clock A. M. on the 27th day of December, the court
having met pursuant to adjournment, and all parties being
present, the contestee produced W. F. Eggers, county clerk,
as a witness in his behalf.
"The
contestor objected to the introduction of any evidence for
the reason that the same was incompetent, irrelevant and
immaterial under the pleadings, no fraud having been alleged
by either party, and as tending to throw no light on any
issue joined in the pleadings. The said objection was by the
court overruled, and at the time excepted to by the
contestor."
At this
point in the record there follow some fifty-eight pages of
evidence introduced by both parties relating to the
authenticity of the ballots produced by the county clerk as
the ballots received by him from Americus township, and
relating to the manner in which the ballots cast in that
township were counted and the official returns of the
election kept. The record also contains the following
statement:
"During
all of the contest, while any and all of the ballots, or
purported ballots, sacks or papers were in the contest court,
the same were in the immediate presence of all three of the
judges for inspection and were inspected by said judges,
except the ballots agreed to by counsel as being valid on
their face."
The
contest court made elaborate findings of fact and conclusions
of law, as follow:
"Our
reasons for putting our decision in this contest in writing
is that the questions involved are unusual, and we wish to
put on record not only what we do, but why we do it. By the
official returns Mr. Moorhead received 816 votes and Mr
Arnold 850 votes, giving Mr. Arnold a majority of 34 votes,
and he received the certificate of election. In due time Mr.
Moorhead filed a contest, putting in issue the count and
official returns of each of the election precincts in the
commissioner district. A proper determination of this issue
involved a recount of all the votes cast in the second
commissioner district of this county. What purported to be
the ballots cast at each of the nine precincts in the
district were brought before the contest court, by the proper
custodian of such ballots, the county clerk, and examined in
the presence of the court. Of the ballots counted by several
election boards, both contestor and contestee agreed in open
court that all but 116 were valid and were counted as such.
These 116 were objected to, some by the contestor and some by
the contestee, because it was claimed that there were
distinguishing marks thereon. As to 64 of the 116 ballots
objected to the objections are overruled and the votes
counted; as to 52 of them the objections are sustained and
they are not counted. Of the objectionable ballots thus
counted 36 are Arnold votes and 28 are Moorhead votes, and of
the 52 ballots not counted by the contest court 26 are Arnold
votes and 26 are Moorhead votes. There were also presented to
the contest court, by the contestor, what purported to be 33
ballots cast in the Americus township precinct, which were
rejected by the election board, and 4 of these which were
Moorhead votes were found not to have distinguishing marks
thereon, and so far as any invalidity by reason of any such
marks they should have been counted for Moorhead. If these 4
votes are counted and there is added thereto the votes
conceded to be valid on their face for Mr. Moorhead, and the
28 objectionable votes counted for him, it will give him 816
votes in the district, while the votes conceded to be valid
on their face cast for Mr. Arnold, and the 36 objectionable
votes counted by this court for him, will give him but 805
votes in the district, and giving Mr. Moorhead a majority of
11.
"Mr.
Arnold, however, objects to the counting by this court of any
of the ballots purporting to have been cast at the Americus
precinct, for the reason that they have not been preserved as
required by law, and were not brought into the contest court
in the same condition in which they were left by the election
board, and are therefore not as good and safe evidence of the
vote cast in the Americus precinct as the returns kept and
made by the board to the county commissioners as provided by
law. The official returns, as shown by the tally-sheets kept
and returned by the Americus election board, give Mr.
Moorhead 219 votes, and Mr. Arnold. 200 votes. The count by
this court of the purported ballots from that precinct gives
Mr. Moorhead 239 votes, and Mr. Arnold but 187 votes. Mr.
Moorhead's majority on the face of the returns is but 19
in Americus precinct, and on the count made by this court of
the purported ballots from that precinct his majority there
is 52, being a difference of 33 votes in favor of Mr.
Moorhead, and if that is taken as correct it gives Mr.
Moorhead a majority of 11 in the district; but if the count
as returned by the election board is taken as the best and
safest evidence of the Americus vote, it gives Mr. Arnold a
majority of 22 votes in the district. It is therefore
apparent that the controlling question of this contest is,
Which is the best and safest evidence of the vote cast in the
Americus precinct?
"The
law makes the count and returns of the election board prima
facie evidence of the Americus vote, and lays upon Mr.
Moorhead the burden of showing by competent evidence that
such returns are incorrect so as to affect the result of the
election of commissioner in the second commissioner district.
The law also makes the ballots, when properly preserved and
produced, the primary and controlling evidence, and if such
ballots and the returns made by the election board differ,
the ballots will control and be admitted as the best and
safest evidence. It was said, however, by our supreme court,
in Hudson v. Solomon, 19 Kan. 177, 186, that 'in order to
continue the ballots controlling as evidence, it must appear
that they have been preserved in the manner and by the
officers prescribed in the statute, and that while in such
custody they have not been so exposed to the reach of
unauthorized persons as to afford a reasonable probability of
their having been changed or tampered with.'
"This
principle was announced by Mr. Justice Brewer, now one of the
justices of the supreme court of the United States, and has
been adhered to by our courts ever since. Other courts have
laid down the same rule. In People, ex...
