Patton v. Watkins

• Decision Date: 20 November 1901
• Citation: 31 So. 93,131 Ala. 387
• Parties: PATTON v. WATKINS.
• Court: Alabama Supreme Court

31 So. 93

131 Ala. 387

PATTON v. WATKINS.

Supreme Court of Alabama

November 20, 1901

Appeal from probate court, Jefferson county; J. P. Stiles, Judge.

Proceedings by J. P. Watkins, contesting the election of W. S. Patton to the office of constable. From a judgment of the probate court in favor of contestee, contestant appeals. Reversed.

F. E Blackburn and C. P. Beddow, for appellant.

Walker Percy, for appellee.

SHARPE J.

At an election held to fill the office of constable contestant and contestee were opposing candidates. There were two polling places in the precinct. At one of them contestant received a majority of the votes. At the other the contestee received a larger majority, and was accordingly declared elected. This result was contested in the probate court, and was sustained by the judgment of the probate judge, sitting without a jury. The evidence from which error in the judgment is sought to be shown relates only to the last-mentioned polling place. It shows that at that place no booths were provided for the occupation of voters while preparing their ballots, that ballots were prepared in a room adjoining that occupied by the inspectors, and that many voters had their ballots marked by W. T. Skinner, an official marker, without making oath to their own inability to do so, as prescribed by section 1623 of the Code. It also shows that, instead of keeping the polls open continuously from the hour of opening to the legal hour of closing, the inspectors left the polling place and remained away from it for about an hour and ten minutes while at dinner, and that, though they carried the ballot box with them when going to dinner, it was out of their sight. On the trial there was evidence, but with which Skinner's testimony was in conflict, tending to show that he acted in marking ballots cast by illiterate voters without any expression from those voters indicating for whom they desired to vote.

The statutes providing for contests for election disclose a policy adverse to disturbing results declared by election officers, wherever they are supported by true estimates of the legal votes cast. No malconduct, whether of officers or of persons, will furnish cause for setting aside an election "unless thereby the person declared elected, and whose election is being contested, be shown not to have received the highest number of legal votes, nor must any election contested under the provisions of this Code be annulled or set aside because of illegal votes given to the person whose election is contested, unless it appears that the number of illegal votes given to such person, if taken from him, would reduce the number of votes given to him below the number of legal votes given to some other person for the same office." Code, § 1668. In the trial of contests no provision is made for investing with the office any person other than the one whose election is declared, unless such other person "received, or would have received, had the ballots intended...