Rhodes v. Driver

• Decision Date: 13 July 1901
• Citation: 64 S.W. 272,69 Ark. 501
• Parties: RHODES v. DRIVER LOVEWELL v. BOWEN
• Court: Arkansas Supreme Court

64 S.W. 272

69 Ark. 501

RHODES v. DRIVER

LOVEWELL v. BOWEN

Supreme Court of Arkansas

July 13, 1901

Appeal from Mississippi Circuit Court, FELIX G. TAYLOR, Judge.

Cause reversed and remanded.

S. S Semmes and G. W. Thomason, for appellants.

The court should have made appellees confine their proof to the allegations and responses. 32 Ark. 553. The fraud shown to have taken place in Fletcher township, in the absence of any attempt by contestees to purge the ballot, made it necessary to throw out the returns from that precinct. 41 Ark. 123; 61 Ark. 247; McCrary, Elections, §§ 534-7; 10 Am. &Eng. Enc. Law, 774, 5. A poll tax receipt, to entitle the holder to vote, should be issued between the first Monday in January and the Saturday preceding the first Monday in July. Acts 1895, 55; Const. 1874, Amdt. 2. And the tax must be paid within that time. 10 Am. & Eng. Enc. Law (2d Ed.), 594-5. The count of ballots in Fletcher township was fraudulent, and must be rejected. McCrary, Elections, §§ 569-571.

Rose & Coleman, for appellants also.

Fraud may be shown by circumstances in such cases as this. 6 Am. & Eng. Enc. Law, 354; 27 Ind. 206. The return of votes from men who have not paid their poll tax was a fraud by the election judges, and vitiates their return. 1 Brewst. 52; id., 107. Cf. 41 Ark. 111. The fraud in counting ballots of men who were dead, and who had not voted, is a further ground for rejection of the returns from Fletcher township. 61 Miss 664; 11 Kan. 308. The fact that the "voters" counted by the judges in Fletcher township could not be found when subpoenas were issued for them is strong proof of their non-existence. 40 Kan. 717; 9 Mont. 604; 55 N.Y. 534. The evidence shows also that more votes were cast for appellants than were counted in Fletcher township. This is a fraud sufficient to vitiate the return. 6 Am. & Eng. Enc. Law, 355; 3 Cong. Election Cas. 62; 6 id. 177. The requirement of the statute (Sand. & H. Dig. § 2653) that every ballot "have the name or initials of at least one of the judges indorsed on the back of it" is mandatory; and the act of indorsing the ballots is personal, and cannot be delegated. 183 Ill. 193; 81 N.W. 805; 59 Neb. 128; 81 N.W. 313; 9 Mont 608; Paine, Elections, § 592. The return from Fletcher township is not evidence of the vote cast, since it was fraudulent and irregular. McCrary, Elections, § 539; 9 Mont. 611; 26 Oh. St. 558; McCrary, Elections, 476; Smith Election Cas., 102; 55 N.Y. 536; 63 Ill. 418; 1 Brewst. 60.

W. J. Driver, L. P. Berry and Norton & Prewett, for appellees.

Where the evidence is conflicting, this court will not disturb the findings of a judge on questions of fact. 53 Ark. 161; 50 Ark. 308; id., 85; id. 275; 41 Ark. 111; 31 Ark. 476; 61 Ark. 247; 60 Ark. 250. The ballot is the best evidence of how the voter voted, particularly where he marks his own ballot. 31 Ark. 207. Illegal votes do not affect the result of an election, unless it appears that they were cast and counted. 54 Ark. 409. It was not necessary that two of the judges should take part in the mere manual labor of writing the ballot. 61 Ark. 247; Sand. & H. Dig. 2652. Contestees were entitled to show fraud by contestants. 32 Ark. 553; McCrary, Elections, § 544.

OPINION

WOOD, J.

At the general election on the 3d day of September 1900, in Mississippi county, J. W. Rhodes was a candidate for circuit clerk, and John A. Lovewell was a candidate for sheriff, on what was called the "Independent Ticket." C. S. Driver was a candidate for circuit clerk, and Sam Bowen for sheriff on the Democratic ticket. The general election returns showed that Driver received for clerk 910 votes, and that Rhodes received 812; that Bowen received 874 votes for sheriff, and Lovewell received 841. Driver and Bowen were accordingly declared elected to the offices, respectively, of circuit clerk and sheriff of Mississippi county, and were duly commissioned as such. On the 18th day of September, 1900, Rhodes gave notice to Driver that at the October term of the county court of Mississippi county, following, he would contest his election as clerk. Lovewell gave notice likewise to Bowen that he would contest his election for sheriff. The cases were trial in the county court, and the decision was in favor of the contestants, and on appeal to the circuit court the decision was in favor of the contestees, and the contestants are here, asking a reversal of that judgment.

The notices of contest, as a preliminary and predicate for the charge of fraud, allege that all of the officers of election of Fletcher township were strong partisans of the contestees, and charged generally that, in conducting the election, the officers permitted and committed so many "gross irregularities, violations of the election laws, frauds and corruptions" that "the returns of said election from said township are of so uncertain and untrustworthy a nature, in ascertaining and arriving at the true and correct vote of said township, that the entire vote of said township should be cast aside and thrown out." The notices then specifically charge that persons were permitted to vote who had no poll-tax receipts; that the poll lists contained the names of persons as having voted who did not vote; that some 60 persons voted for Rhodes for clerk in Fletcher township, when the returns only gave him 22 votes, and gave Driver 232; that 79 persons voted for Lovewell, when the returns only gave him 25 votes, and gave Bowen 235; that the votes were taken away from the contestants, respectively, either in fraudulently marking the tickets for contestees, when the voters had directed them to be marked for contestants, or in fraudulently counting them for contestees; that only one judge was present and assisted in marking these ballots; that, after the time had expired by law for issuing poll-tax receipts for the year 1899, some 250 poll-tax receipts had been issued by the contestee, Bowen, who at the time was collector of the county, a large number of the holders of which poll-tax receipts voted for the contestees.

One of the judges of election testified: "I think, when we started out in the morning, we got it sort of mixed. All of us were putting our initials on the tickets, and I suggested that only one judge put his initials on, and they said, 'You just do that,' and along during the day some one would be making out his ticket, and I would be assisting him, and another man would come in to vote while I was busy with the first voter, and the other judges would number his ticket and put my initials on it; but I numbered, and put my initials on, most of the tickets." The statute provides: "Before delivering a ballot to an elector, at least one of the judges shall write his name or initials on the back thereof." Section 2650, Sand. & H. Dig. "No ballot shall be received from any elector or deposited in the ballot box which does not have the name or initials of at least one of the judges indorsed on the back of it." Section 2653, Sand. & H. Dig.

Illinois has the Australian ballot law, which provides that "one of the judges shall give the voter one, and only one, ballot, on the back of which such judge shall indorse his initials in such manner that they may be seen when the ballot is properly folded," etc., and "no ballot without the official indorsement shall be allowed to be deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted." Sections 22 and 26, Laws of Illinois, 1891. In the recent case of Kelly v. Adams, 183 Ill. 193, 55 N.E. 837, one of the ballots was not indorsed on the back with the initial of either judge of the election. The supreme court, in holding the ballot bad, said: "The evidence shows that this ballot had no indorsement to show that it was an official ballot, provided in accordance with the law. To ignore this provision of the statute, and allow ballots to be counted which do not contain the official indorsement, would authorize the voting of ballots that might have been surreptitiously obtained or copied, and one of the purposes of the ballot law be entirely frittered away, and the door opened for fraud."

Nebraska has a similar statute, providing that upon the ballots "two of the judges shall first write their names in ink," and "no judge of election shall deposit in any ballot box any ballot unless the same is identified by the signature of two of the judges," etc., and that in the canvass of the votes any ballot which is not indorsed as provided in the act by the signature of two judges upon the back thereof shall be void, and shall not be counted." In Orr v. Bailey, 59 Neb. 128, 80 N.W. 495, the name of only one judge was indorsed. The supreme court of Nebraska, in holding such ballots void, quoted Judge McCrary as follows: "Such statutes are intended to prevent fraudulent voting, and, if the legislature is of the opinion that the general good to be derived from their enforcement will more than counteract the evil resulting from the occasional throwing out of votes honestly cast, the courts cannot consider the mere question of policy." McCrary, Elections, § 226.

A statute of Indiana required the polling clerks to write their initials in ink on the lower left hand corner of the ballot, etc., and provided that "in the canvass of the votes any ballot which is not indorsed with the initials of the poll clerks, as provided in this act, shall be void and not counted." The supreme court of Indiana, in Parvin v. Wireberg, said: "Of course, so much of the statute as requires the ballots to be indorsed with the initials of the poll clerks is mandatory." 130 Ind. 561, 571.

A statute of Missouri provides: "It shall be the duty of judges to cause to be placed on each ballot the...