Moyer v. Van De Vanter

• Citation: 12 Wash. 377,41 P. 60
• Parties: MOYER v. VAN DE VANTER.
• Decision Date: 23 July 1895
• Court: Washington Supreme Court

41 P. 60

12 Wash. 377

MOYER v. VAN DE VANTER.

Supreme Court of Washington

July 23, 1895

Appeal from superior court, King county; J. W. Langley, Judge.

Proceeding by William H. Moyer against Aaron T. Van de Vanter to contest the title to the office of sheriff of King county. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

Winsor Bush & Morris, John B. Hart, and White & Munday, for appellant.

Brady, Gay & McBride, Andrew F. Burleigh, and Struve, Allen, Hughes & McMicken, for respondent.

SCOTT, J.

The parties hereto were rival candidates at the last general election for the office of sheriff of King county. The county canvassing board found that respondent was entitled to the office, and declared him elected thereto, whereupon a certificate of election was issued to him. Within a few days thereafter, appellant filed a statement of contest, alleging matters to show that he had received the greatest number of legal votes and was entitled to the office. Issue was taken by the respondent upon certain of the material matters alleged, and a trial was had, which resulted in favor of the respondent, and this appeal was taken therefrom. A number of findings of fact were made by the lower court, which, with certain conclusions of law based thereon, were duly reduced to writing and made a part of the case. Whereupon appellant excepted as follows: "To these findings of fact and conclusions of law, and to each of them, the contestant excepts." An objection was made by the respondent to a consideration of any of the evidence introduced, or errors alleged with reference thereto, on the ground that no sufficient exception was taken to any fact found by the lower court; and, under repeated holdings of this court heretofore this objection must be sustained. As a consequence thereof the case presented upon appeal is much abbreviated; many of the questions sought to be raised by the appellant are eliminated; and the only question left for our consideration is whether the facts so found by the lower court are antagonistic to the conclusions of law and judgment. Appellant's main contention in this respect is based upon the seventh finding, which is as follows: "I find that in Franklin precinct there were 194 votes cast and counted for Aaron T. Van de Vanter, the defendant and contestee, and 17 votes for William H. Moyer, the plaintiff and contestant, for said office of sheriff, which said votes entered into and formed a part of the total legal votes hereinbefore found by me to be cast for each of the said contestant and contestee, to wit: on the part of Van de Vanter, entered into and made a part of the 4,380 votes so counted; on the part of Moyer, entered into and became a part of the 4,373 so counted for him. I further find that the election officers of Franklin precinct failed to place upon any of said ballots the initials of the inspector or any judge thereof before the said ballot was deposited in the ballot box. And I further find that a blank ballot was given to each and every elector without either the official stamp or the initials of an election officer thereon; and said elector took said ballot and the same was marked by said elector and returned by him to the election officers, when, in the presence of the elector, the inspector of said election placed upon said ballot the official stamp, furnished for that purpose by the county auditor, in pursuance of law, after which the said ballot was folded and placed within the ballot box, wherein it was kept until, at the time of the counting by the election officers, and at the close of the polls, all of the ballots of said precinct were counted, and returned, in a sealed box, by a special messenger, to the county auditor, in the manner directed by law. I further find, from the evidence and stipulations in this case, that the ballots voted by the electors, in each and every instance, were placed in the said box, and that the said ballots had been safely kept, and was produced into this court as an original exhibit, as evidence of the said recount. I further find that the election officers of Franklin precinct were in close and watchful attendance at the polls and of the ballot box and ballots during the entire election; that no ballots were used except those received from the election judges, or taken under their direction; that the election was held in an orderly manner that the votes were counted and returned to the county auditor as required by law; and that the vote so returned were the votes actually cast at Franklin precinct at said election." The important question to be determined is whether the vote cast in this precinct could be counted, the initials of no one of the election officers having been written on any of the ballots. The law provides that there shall be printed on the back of the ballots, with the rubber or other stamp provided for that purpose, the designation "official ballot," the name or number of the election precinct, the name of the county, the date of the election, the name and official designation of the clerk who furnishes the tickets to the judges of election, and that the inspector or one of the judges shall also write his initials thereon. Gen. St. §§ 382, 384. The ballots bore the proper stamp, and the fact that it was not placed thereon...