Rohde v. Steinmetz

• Decision Date: 19 July 1898
• Parties: ROHDE v. STEINMETZ.
• Court: Colorado Supreme Court

55 P. 814

25 Colo. 308

ROHDE v. STEINMETZ.

Supreme Court of Colorado

July 19, 1898

Appeal from El Paso county court.

Action by F. J. Steinmetz against William E. Rohde. From a judgment for plaintiff, defendant appeals. Reversed.

Campbell C.J., dissenting.

Riddell & Starkweather, for appellant.

Felker & Dayton, for appellee.

GABBERT J.

Appellant received a certificate, certifying that at the last regular election of county officers for the county of El Paso he was elected treasurer. This certificate was based upon a canvass of the returns, made by the judges and canvassers of election in the several precincts of the county, according to which he was elected by a plurality of 106 votes over his competitor the appellee. The latter contests his election upon the ground that in specified precincts there was error and mistake in the canvass of the votes by the officers charged with the duty of determining the results from the ballots cast, in this: that in these several precincts there were votes cast for him, to the number of 269, which by error and mistake were not so counted, and that for like reasons votes to the number of 222, were counted for appellant which in fact were not cast for the latter. Fraud, malconduct, and corruption were also charged in the statement of contest, but, so far as disclosed by the evidence, there was no attempt to prove these charges; the testimony being limited to the issues of error and mistake.

At the trial of this contest there was introduced on behalf of appellee the testimony of the county clerk, which, in substance, was that the boxes containing the ballots cast in these precincts were delivered to him in the regular way and by the proper persons, within two days after election, and since that date had been in his custody and possession in the vault in his office, which vault was secured by an ordinary combination lock, and, so far as he knew, had been safely kept, and were in the same condition as delivered; that the combination of the lock was known by 2 of his office employés, and that all so employed, numbering 11 or 12, had access to the vault, when open, during business hours; that he thought, though not positive, that the combination of the lock was the same as when he assumed the duties of the office; that reputable citizens, whose business from time to time required an examination of the records of the office, had access to the vault during business hours; that he was not at the office all the time during these hours, but that neither of the ballot boxes could have been opened in the vault without being observed by some employé in the office; that there were a large number of ballot-box keys in and about the office, kept specially for the purpose of replacing those lost. The evidence of the deputies who knew the combination to the vault was to the effect that, usually, either one or the other attended to opening and closing it; that to the knowledge of neither had it been opened after business hours, or during the evening or night, and that, so far as they knew, no one had interfered with the ballot boxes; that, from the positions they occupied in the office when on duty, no one could enter the vault without their knowledge. It was also stipulated by counsel that the evidence of each of the other clerks in the office would be substantially the same as the last two. On behalf of appellee, this evidence was supplemented by the testimony of the judges of the several precincts from which the boxes were opened and the ballots recounted, except in 60, in which only two were called. This testimony was to the effect that, in their judgment, the respective boxes, so far as they could observe, were in the same condition as when locked and sealed, after the canvass of the ballots was completed. Upon the introduction of this testimony, the ballot boxes from the precincts in which a recount was demanded were opened, and the ballots offered, and admitted, on behalf of appellee, for the purpose of a recount.

The contest was finally narrowed to six precincts, for the reason that the recount of ballots in the others specified in the statement of contest did not affect the result; and a review of the evidence will be limited to these precincts. Appellant then introduced as witnesses the judges, clerks, watchers, and constables in these precincts, who participated in or were present when the votes were being counted, varying in number from three to six in each, whose testimony was clear and positive that the count made was correct; that no ballots were counted for him to which he was not entitled, and none omitted with which appellee should have been credited; that none doubly marked in the emblems or body, in such a manner as to nullify the vote for appellant, were counted for treasurer; and that the ballots exhibited before the court so doubly marked were not in that condition when counted. It also appears, from this evidence. that the utmost care was exercised on the part of the election officers to prevent mistake, and the ballots carefully examined for the purpose of ascertaining for whom cast. Politically, these witnesses represented the respective parties, or some of them, of which the parties to this contest were candidates, and, from their statements relating to their business and experience, were persons of intelligence and education, and fully capable of comprehending and performing the duties for which they were selected. Appellant also called the county clerk, and interrogated him relative to the proposition that the boxes could be unlocked, and the contents removed, without in any manner disturbing the seals placed upon the boxes by the judges, and the contents replaced, and the boxes relocked, without leaving any appearance that they had been opened. The court, without hearing further evidence on this subject, and at the request of appellant, made the following statement: 'That the keys to the ballot boxes 43, 52, 56, 58, 59, and 60, after being opened by the judges of the several precincts, were delivered by said judges to the court, by consent of both parties, since which time the court has, on one or more occasions, opened each of said boxes with the keys in his possession, and allowed the ballots to be taken therefrom, without interfering with the seal of the ballot box; and the court could perceive no change in the physical condition of the boxes, after being closed, from what they were previous, except in one case, by accident, where the seal had become loosened, and dropped off.'

In rebuttal, appellee introduced a number of witnesses who were in some manner officially connected with the reception and canvass of the ballots in the six precincts above mentioned, on which branch of the case the testimony, in substance, with reference to the particular precinct to which it referred, was that a number of ballots doubly marked in the emblems were counted and canvassed, and that all the ballots so marked were not conflicting as to all the candidates. None of these witnesses, however, pretend to state that any ballot was improperly counted, or that any candidate was credited with a vote, on ballots so marked, to which he was not entitled; nor does either of these witnesses state that any mistake or error was made, or that the canvass and count was not correct, but, on the contrary, when interrogated on the subject, admit that they were satisfied with the count when made, and believed then it was correct. One of these witnesses stated that he remembered one doubly-marked ballot in particular, over which there was quite a controversy, but which it was finally decided was not so marked as to be in conflict, but does not intimate that the decision was not correct. A witness who acted as watcher in one of the precincts stated that he noticed a number of doubly-marked ballots counted, and that there might have been 20 or 30 of that kind; but whether they were marked in such manner as to be conflicting, or for whom counted, he does not state. In this precinct 21 ballots were returned by the judges as defective, on account of being doubly marked. Another witness, who acted as judge in one of these precincts, states that some of the ballots were doubly marked, but in respect to an examination of them by himself, it was to the effect that he scrutinized each one carefully, as he did most of the calling off, for the purpose of enabling the clerk to make the tally; that doubly-marked ballots were counted for some of the candidates, but he does not claim incorrectly, and, on the contrary, says he did not see anything wrong in the count.

There is no claim that the ballots were tampered with in transit from the polling places to the office of the county clerk. On this evidence, and an inspection and recount of the ballots in the precincts in which a recount was demanded by the contestor, the finding and judgment of the court were for appellee. The difference in the recount by the court, and that returned by the judges from the several precincts, after deducting from appellee 10 votes in a precinct in which it was alleged in the answer, and stipulated by counsel, there was a clerical error of this number of votes in the computation made by the canvassing board of the returns from this precinct, was such that appellee was declared elected by a plurality of 138 votes over the appellant. In the five of the six precincts which affected the result on recount numbered 43, 52, 58, 59, and 60, the loss to appellant, as compared with the returns, was, respectively, 14, 9, 38, 61, and 31, while in the remaining one of these six precincts, being No. 56, his gain was 4; the result being a loss to him of 149 votes in these precincts. In the five of these six, numbered 43, 56, 58, 59, and 60,...