Thornhill v. Wear

• Decision Date: 03 December 1912
• Docket Number: 19,683
• Citation: 131 La. 739,60 So. 228
• Court: Louisiana Supreme Court
• Parties: THORNHILL v. WEAR

60 So. 228

131 La. 739

THORNHILL v. WEAR

No. 19,683

Supreme Court of Louisiana

December 3, 1912

See opinion of BREAUX, C. J., 60 So. 231, partly concurring and partly dissenting.

Appeal from Thirtieth Judicial District Court, Parish of Caldwell William M. Wallace, Special Judge.

Election contest by Commodore Perry Thornhill against George Wear. From a judgment for contestant, contestee appeals. Judgment set aside, and suit dismissed.

See also, 59 So. 901, ante, p. 458; 59 So. 909, ante, p. 479.

Hudson Potts & Bernstein, of Monroe, Foster, Milling, Brian & Saal of New Orleans, George Wear, Jr., of Alexandria, and Nelson S. Woody, of New Orleans, for appellant.

Hundley & Hawthorn, of Alexandria, and Grisham & Oglesby, of Winnfield, for appellee.

OPINION

PROVOSTY, J.

At the Democratic primary election of September 3, 1912, plaintiff and defendant were rival candidates for nomination for the office of judge of the judicial district composed of the parishes of Caldwell and La Salle. Defendant was returned as elected, and the plaintiff filed the present suit, contesting the election. The case is now before this court for the second time. The first time it was remanded in order that certain ballot boxes, which, on objection made by defendant, the trial court had refused to open, should be opened and investigated. The reason for refusing to go into these boxes had been that no irregularity had been alleged in connection with them by either of the parties. But, in view of the wide scope which the evidence had taken, this court thought that as a matter of simple, ordinary justice they should be inquired into like those which had been specially attacked in the pleadings.

It seems, however, that on the termination of the first trial the officers who should have taken charge of these unopened boxes and kept them safely did not do so but left them to take care of themselves, where they happened to be scattered about the courtroom, and that they so remained unattended to by anybody and exposed to be tampered with by whoever might choose to do so from the date of said trial, October 17, 1912, to November 8, 1912, when, by order of the judge, they were put in a safe place. The courtroom where these boxes were thus left exposed was not locked, or guarded in any way, but was accessible to any one who might wish to enter, day or night. Persons going to or returning from the offices of plaintiff and defendant passed through it. The fastenings on these boxes were so flimsy that any one might at any time remove and replace them, and no one be the wiser. So that when plaintiff asked, on the second trial, that these boxes be opened and investigated, the defendant objected, on the ground that plaintiff should first be required to show that these boxes and their contents were in their original condition, untampered with. The trial court overruled this objection, but we think should have sustained it.

With a view to the possibility of the ballots being thereafter needed as evidence, the statute makes careful provision for their safe-keeping and protection against the danger of their being tampered with. Section 21 of Act 152 of 1898 provides:

"The third tally sheet, together with the ballots and a poll list of the persons voting, shall be returned to the ballot box, which shall thereupon be sealed by the commissioners, and the said ballot box containing the ballots and tally sheets and poll lists, as aforesaid, shall be delivered to the clerk of court, to be by him safely preserved for a period of six months."

Section 23 of the same act provides:

"The clerk of the court shall receive the boxes containing the ballots cast at any election, and the other papers herein provided for, sealed as hereinbefore provided, and shall retain them in his care for six months, etc."

McCrary on Elections (4th Ed.) c. 14, par. 471, p. 348, says:

" Where, as is the case in several of the states, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that ballots may be tampered with after the count is made, especially if the vote is very close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law from the time of the original count until they are produced before the proper court as evidence, and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and improper place, they cannot be offered to overcome the official count."

The same author in No. 472 lays down the further rule that:

"The party offering such ballots in evidence must show affirmatively that they have not been tampered with, and that they are the identical ballots cast at the election in question."

And quotes Chief Justice Church approvingly, as follows:

"Every consideration of public policy, as well as the ordinary rules of evidence, require that the party offering this evidence should establish the fact that the ballots are genuine."

Continuing, McCrary says.

"The burden of proof in such a case does not rest upon the party objecting to the ballots as evidence" -- citing Hartman v. Young, 17 Or. 150, 20 P. 17, 2 L. R. A. 596, 11 Am. St. Rep. 787; Beall v. Albert, 159 Ill. 127, 42 N.E. 166; Fenton v. Scott, 17 Or. 189, 20 P. 95, 11 Am. St. Rep. 801.

In No. 473 he says:

"The better opinion seems to be that, if the deviation from the statutory requirements relative to the manner of preserving the ballots has been such as necessarily expose them to the public or unauthorized persons, the court should exclude them."

Referring to the decision of People v. Holden, 28 Cal. 123, and commenting thereon, he says, in No. 475, p. 349, that:

"Before the ballots should be allowed in evidence to overturn the official count and returns, it should appear affirmatively that they have been safely kept by the proper custodian of the law, that they have not been exposed to public or handled by unauthorized persons, and that no opportunity had been given for tampering with them. If this is believed to be a rule founded upon the presumption that a fraud or a crime has been committed, the answer is that the rule does no more than to make choice between two presumptions of law, which in this instance are in conflict, and cannot both prevail. In such a case the question is: Which is the stronger, the more reasonable and the safer presumption? And inasmuch as the ballots are counted by the board of canvassers immediately upon the closing of the polls, and generally before there had been an opportunity for tampering, and when it cannot be known that the changing of a few votes will change the result, and in most cases by a board composed of friends of each of the competing candidates, it is believed that in the absence of all proof, in case of a conflict between the tally sheet and returns on one side, and the ballots as they are found to be at some period after the election is over, and after the state of the votes as returned has been made known, on the other, the correctness of the original official canvass made by sworn officers at the time of the election, should be presumed."

And in No. 476, on page 350, he says:

"In a more recent case arising under the same statute the Supreme Court of California refused to accept the result of a recount because it was not shown that the ballots had been in the inner room sealed up and preserved as required by law" -- citing People v. Burden, 45 Cal. 241; and also Hudson v. Solomon, 19 Kan. 177.

In No. 478, quoting approvingly from the case of Hudson v. Solomon, above cited, he says:

"The original ballots are undoubtedly the best evidence, where their identity is clearly established. The governing rules are thus well stated by Brewer, Judge, in Hudson v. Solomon: (1) As to the ballots cast at an election and a canvass of those ballots by the election officers, the former are the primary and controlling evidence; (2) in order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with. If there has been an opportunity for tampering with the ballots, they lose their character as primary evidence."

At No. 481, p. 353, he says:

"One of the most important and imperative requirements of the law of elections is that ballots from the time they are cast until they are canvassed must be safely and securely kept. Frauds upon the ballot boxes are very frequently perpetrated by tampering with the ballots after they are cast and before they are counted. * * * It is clear that where the law, which requires the ballots to be safely and securely kept until canvassed and the result announced, has been so grossly violated as to afford opportunity for fraud or tampering, the burden of proof should be shifted."

15 Cyc. p. 425, No. 13, under the heading, "Ballots as Evidence," (a) "When Properly Preserved," says:

"While the certificates of the various canvassing boards are conclusive on all collateral inquiries, they are only prima facie evidence in direct proceeding to contest an election. Hence in all cases where the right to an elective office is the subject-matter of an action, where the right is to be determined in any by the statutory proceeding to...