Murphy v. Lentz
| Decision Date | 12 July 1906 |
| Citation | 108 N.W. 530,131 Iowa 328 |
| Parties | P. H. MURPHY v. F. N. LENTZ, Appellant |
| Court | Iowa Supreme Court |
Appeal from Chickasaw District Court.--HON. L. E. FELLOWS, Judge.
THE parties hereto were opposing candidates for the office of auditor in and for Chickasaw County at the General election of 1904. Lentz was declared elected by the board of supervisors acting as canvassing board. Thereupon Murphy filed a statement of contest and upon trial before the court of contest was declared elected. Lentz then appealed to the district court where that decision was affirmed. He appeals.
Affirmed.
M. E Geiser and M. F. Condon, for appellant.
W. J Springer and W. A. Smith, for appellee.
The parties stipulated that "a count of the ballots as they now appear if admissible in evidence shows a greater number of ballots for contestant than incumbent." The remaining issue is whether the ballots have been so preserved as to indicate with reasonable certainty that when offered in evidence they were in the same condition as when cast by the electors. Davenport v. Olerich, 104 Iowa 194, 73 N.W. 603; Mentzer v. Davis, 109 Iowa 528, 80 N.W. 557; De Long v. Brown, 113 Iowa 370.
I. Errors are neither assigned nor argued and appellee insists that the cause cannot be heard anew. Nor could it have been prior to the amendment of section 1222 of the Code by the Twenty-eighth General Assembly by adding thereto the words: "The court shall hear the appeal in equity and determine all questions arising in the case." It is argued that this merely eliminates the jury from such trials. It does more. It changes the proceedings from ordinary to equitable by specifically requiring that the hearing shall be in equity. And having been so heard in the trial court the cause must be heard anew in this court. The amendment then but recently enacted appears to have been overlooked in Spurrier v. McLennan, 115 Iowa 461, 88 N.W. 1062.
II. The contestant, Murphy, had been the duly qualified and acting deputy auditor during the first term of the auditor, Fitzpatrick, who had been re-elected and qualified as auditor, but, though orally designating Murphy as his deputy and administering orally the usual oath to him there was no appointment in writing nor bond such as is exacted by section 481 of the Code. Nevertheless he continued to perform the duties of deputy auditor up to the 1st Monday of January, 1905. That he was deputy de facto during this period is not open to controversy. Buck v. Hawley, 129 Iowa 406, 105 N.W. 688; Herkimer v. Keeler, 109 Iowa 680, 81 N.W. 178.
As such he received a part of the election returns and had access to them up to Monday after election, but nothing in his conduct was made to appear inconsistent with his duties as deputy auditor. Appellant insists that the fact that he was acting in an official position, however, cannot shield him for that the rights of third persons are not involved and neither justice nor necessity requires that his acts with respect to the reception and care of the ballots be upheld, as the acts of an officer. If the premises were to be accepted undoubtedly he might not rely upon his acts as a de facto officer for protection, for he must be assumed to have been aware of his want of title. Thus where an officer seeks to recover the emoluments of an office as in People ex rel. v. Nolan, 101 N.Y. 539 (5 N.E. 446), or to acquire funds to which as an officer he is entitled as in People ex rel. v. Nostrand, 46 N.Y. 375; or undertakes to justify his acts on the ground of being an officer as in Short v. Symmes, 150 Mass. 298 (23 N.E. 42, 15 Am. St. Rep. 204), he must do so by proof that he is an officer de jure. This was well expressed in Plymouth v. Painter, 17 Conn. 585 (44 Am. Dec. 574), where it is said that "in a suit against a person for acts which he would have authority to do only as an officer he must in order to make out a justification, show that he is an officer de jure; because the title to the office, being directly drawn in question, in a suit to which he is a party, may be regularly decided; so where he sues for fees or sets up a title to property by virtue of his office he must show himself to be an officer de jure." See, also, McCue v. Wapello Co., 56 Iowa 698, 10 N.W. 248; Fylpaa v. Brown County, 6 S.D. 634 (62 N.W. 962). In these cases the title to the office was directly in issue and whether the interest is personal or by virtue of an office in his possession the officer de facto is not permitted to assert the same in his own interest nor should he be for as said he must be assumed to have knowledge of his want of title. But the contestant's right to exercise the duties of deputy auditor were not directly in issue, and the assumption that he alone was interested in the preservation of the ballots cannot be sustained. Theoretically the public alone was interested therein, and actually it is a matter of vital concern to the public that every contest over the incumbency of an office shall be determined justly and in accord with the will of the people as expressed in the voting booths. Coglan v. Beard, 67 Cal. 303 (7 P. 738).
The contestant had undertaken the duties of deputy auditor, and was bound to perform them honestly. This included the proper care of the ballots whenever that duty devolved upon him. Had the auditor been a candidate for re-election no one would pretend that he would have been disqualified from receiving and caring for the returns, or that, if he did so, he should for this reason only, be deprived of the advantage of a recount in event of a contest. Nor would any one think of inquiring into his title to the office then held in order to assail his official acts in relation to the election returns. Were it otherwise the acts of a de facto officer might have the effect of invalidating an election or as applied to himself of defeating the will of the people, the determination of whose choice is of far greater importance than the interest of any individual. The deputy auditor is in a like situation and in determining whether the ballots have been properly preserved the title of neither to his office is in issue. The public is primarily interested in their acts, and it is enough to endow them with all the sanctity of official acts that they may be proven to have been performed by officers de facto, regardless of whether also officers de jure. Doubtless any interest in the election aside from that of every citizen is proper matter of consideration and will call for a closer examination of conduct with reference to the returns. See Farrell v. Larsen (Utah), 73 P. 227; Hamilton v. Young, 26 Ky. L. Rep. 447 (81 S.W. 682). But from this alone it cannot be inferred that the ballots have not been preserved in safety.
III. Some of the ballots were not folded, others not wired, and still others not sealed by the election officers as directed by the statute. These provisions, in so far as they bear upon the result, are directory in character. Mere irregularities in not strictly pursuing them will not be permitted to defeat the will of the electors. McCreary on Elections, sections 228, 236; State v. Bernholtz 106 Iowa...
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