Sailor v. Rankin

• Citation: 189 S.W. 357,125 Ark. 557
• Decision Date: 23 October 1916
• Docket Number: 205
• Parties: SAILOR v. RANKIN
• Court: Supreme Court of Arkansas

189 S.W. 357

125 Ark. 557

SAILOR v. RANKIN

No. 205

Supreme Court of Arkansas

October 23, 1916

Appeal from Perry Circuit Court; G. W. Hendricks, Judge; affirmed in part and reversed in part.

Judgment affirmed in part, reversed in part and cause remanded.

Sellers & Sellers, for appellants.

Nothing done to the returns after the election will affect the election or change the burden of proof. Webb v Bowden, 141 P. 652. The pleadings were too indefinite. 33 S.W. 669; 83 P. 393; 11 Am. St. 857; 1 Brewst. 26; 49 N.E 488; 33 S.E. 718; 95 S.W. 676. When amended pleadings setting up new facts may be filed. 6 W.Va. 713; 23 P. 84; 159 S.W 632; 159 S.W. 641; 111 Ark. 398; 61 Ark. 253; 58 Am. St. 239. When the whole poll must be cast out. 61 Ark. 111. The evidence of the ballots overcomes the returns. 79 N.W. 1018; 86 Ark. 269; 93 N.E. 291; 19 S.E. 557; 53 S.E. 706; 82 S.W. 1023. The result of an election should not be lightly set aside. 70 S.W. 668; 68 S.W. 1076; 70 S.W. 673. The ballots prima facie reflect the result of the election. 94 Ark. 482; 166 S.W. 762; 61 Ind. 392; 24 P. 258; 36 Ark. 446. They constitute the best evidence. 28 Cal. 124; 65 Cal. 58; 2 P. 737; 67 Cal. 303; 7 P. 738; 108 Cal. 101; 41 P. 454; 49 Am. St. 68; 29 L. R. A. 673; 27 Mich. 116; 114 Ky. 312; 70 S.W. 52; 75 S.W. 257; 89 S.W. 1; 94 Ill. 515; 91 Md. 626; 46 A. 1025; 108 Ill.App. 631; 8 N.D. 484; 79 N.W. 1018; 184 Ill. 552; 56 N.E. 1012; 64 N.E. 292. The presumption is that public officers do their duty. 11 Ark. 212; 22 Ark. 79; 24 Ark. 407; 31 Ark. 39; 32 Ark. 772; 45 Ark. 298; 25 Ark. 314; 5 B. & Adol. 546; 12 Wheat. 69; 94 Ark. 221; 95 Ark. 438; 96 Ark. 477; 50 Ark. 276. It will not be presumed that one violated the law. 67 Ark. 278; 34 Ark. 518; 97 Ark. 212; 82 S.W. 1023.

2. The burden is upon the contestant to show that the ballots have been tampered with. 7 P. 739; 28 Cal. 133; 2 P. 727; 79 N.W. 1021; 12 S.W. 107; 27 Mich. 116. The presumption arising from the identity of names is overcome by the presumption in favor of the regularity of official action. 60 S.W. 129; 42 N.E. 727; 4 Wend. 283; 22 S.W. 333; 5 Mon. 422; 2 Ill. 128; 8 Me. 75; 7 Cal. 279; 94 Ark. 481; 73 Ark. 187; 50 Ark. 85. Presumption as to genuineness of the ballots. 49 Ark. 24; 9 R. C. L. 1164; 50 Ark. 95; 30 Cal. 325; 2 Swan. 68; 22 Barb. 72; 77 Am. St. 306. To prove a vote illegal, the evidence must be conclusive. 22 P. 225; 61 Ind. 392; 33 La.Ann. 398; 133 Am. St. 939; 4 Wis. 420; 12. Wis. 551; 16 Wis. 146. It can not be proved that the voter intended to vote for one man when the ballot was cast for another. 5 Denio 409; 27 N.Y. 45; 84 Am. Dec. 242; Cooley's Const. Lim. 611; 25 Am. St. 215; 10 Am. St. 318; 35 S.W. 544; 33 S.W. 400. Burden on contestant to show disqualification of voter. 108 Ark. 301; 39 P. 327; 84 Am. Dec. 268; 78 Ill. 170; 60 How. Pr. 471. Failure to call judges to show irregularities. 61 Ark. 256; 73 Ark. 193. Where the returns are impeached, they are evidence of nothing. 119 P. 220; 63 Ill. 405.

Mehaffy, Reid & Mehaffy, John L. Hill and J. H. Bowen, for appellee.

When returns will be thrown out for fraud. 69 Ark. 501; McCrary on Elec. 449. A voter may contradict a ballot. 94 Ark. 483. The ballots are primary evidence of the result and must stand until impeached. 94 Ark. 478; Bowden v. Webb, 124 Ark. 244. Burden of maintaining the legality of the official count. 63 Ark. 175 86 Ark. 259.

Sellers & Sellers, in reply.

OPINION

MCCULLOCH, C. J.

This is an appeal from the judgment of the circuit court of Perry County in a proceeding instituted to contest the result of an election held for the purpose of voting on the proposed removal of the county seat of that county from Perryville. There were two towns to which a removal was proposed, Perry and Bigelow, and each of those places received a very substantial number of votes. The county election commissioners rejected the returns from four precincts and omitted them from their return to the county court. On the hearing of this contest in the circuit court on appeal from the county court, it was conceded by both sides to the contest that the elections held in those four townships, and two others, were void, and that the returns from the six townships should be entirely excluded, which the circuit court accordingly did.

The face of the returns, with those six townships excluded, showed the following result: Total vote, 1869; for removal, 1,264; against removal, 594; for Bigelow, 1,175; for Perry, 635. The clerk's certified list of persons who had paid poll tax for the preceding year showed a total of 2,004 qualified electors. It thus appeared from the face of the returns that a majority of the votes cast at the election and also a majority of the total vote according to the number of poll taxes paid, was in favor of the proposal to remove the county seat and to establish the same at the town of Bigelow. Certain citizens thereupon instituted a contest in the county court on behalf of the town of Perry over the question of removal to Bigelow, and subsequently the appellees instituted a like proceeding on behalf of the town of Perryville contesting the vote on said removal, and the vote in favor of Bigelow.

Appellants filed their response on behalf of the town of Bigelow, and also a counter contest asking for the exclusion of the returns from the six townships already referred to. Each of the contests was based on alleged irregularities and frauds in four townships, constituting separate voting precincts, viz.: Casa, Roland, Houston and Perry, the last named township being the one in which the town of Bigelow is situated.

When the case was called for trial in the circuit court, the contestants on behalf of the town of Perry, withdrew their contest, and the cause proceeded to trial upon the contest of appellees on behalf of the town of Perryville. The court sustained the returns as made by the election officers in Houston and Perry townships, but excluded the vote from the other two townships, holding that the charges of fraud had been sustained. The circuit court decided, however, that the contestees had established the validity of 30 votes cast in Roland Township in favor of removal and in favor of Bigelow, and also had established the validity of 13 votes in Casa Township. It was therefore adjudged that the proposal to remove the county seat from Perryville, and the votes in favor of Bigelow, did not constitute a majority of the electors, and that both propositions had been lost. The contestees thereupon prosecuted the appeal to this court.

It is only necessary for us to review the decision of the court with respect to the election in Casa and Roland Townships, for in all other respects the decisions of the trial court were in favor of appellants.

It is contended, in the first place, that neither the pleadings nor the testimony warranted the judgment of the court excluding the returns from Casa and Roland townships. It is argued that the petitions for contest only attack the validity of specifically mentioned ballots in those two townships, and did not question the integrity of the returns as a whole. We find, however, on examination of the petition, that it is charged therein that the judges "committed such fraud and misconduct in the holding of said election in each of said precincts as to render the election therein void," and that the fraud and misconduct consisted of permitting a large number of persons to vote who were not qualified electors, some of whom did not reside in the precinct or county; that the election officers in said township electioneered with voters in the polling places, and that they fraudulently registered as voting certain persons who did not appear at all at the polls, and that they fraudulently changed the ballots of voters who cast their ballots against removal, so as to show that the same had been cast in favor of removal.

While the rule is that pleadings in a special statutory proceeding of this kind should be construed with some strictness, that does not mean that there should be such a technical construction of the pleadings as would defeat the obvious meaning and intention of the pleader. It was obviously the intention of the contestants to attack the validity of the whole return in each of the four townships mentioned, and it would be a very narrow interpretation of the language used in the petition to say that it was only intended to exclude certain votes. This intention is very plain when considered in connection with the fact that substantially all of the votes in those four townships were in favor of removal, and in favor of the town of Bigelow, and the effort of contestants was to show fraud of a general nature which would destroy the integrity of the returns of the election officers.

In support of the contention that the proof is insufficient to show such fraud as would warrant an exclusion of the whole poll of the two townships mentioned, learned counsel rely upon the rule which the authorities cited in their brief show to be well established, to the effect that the power to reject an entire poll being a dangerous power, "it should be exercised only in extreme cases, that is to say, in a case where it is impossible to ascertain with reasonable certainty the true vote." McCrary on Elections, section 523; Patton v. Coates, 41 Ark. 111; Webb v. Bowden, 124 Ark. 244, 187 S.W. 461. On the other hand, it is equally well settled that where, in a given voting precinct, it is shown that fraud was promiscuously committed by the election officers which affected the result to an extent, the exact limits of which it is impossible from the testimony to ascertain, and which fairly draws in question the integrity of the whole returns the same should be thrown out entirely and...