Viel v. Summers

• Decision Date: 03 March 1922
• Citation: 35 Idaho 182,209 P. 454
• Parties: FRED L. VIEL, Appellant, v. HARRY L. SUMMERS, Respondent
• Court: Idaho Supreme Court

209 P. 454

35 Idaho 182

FRED L. VIEL, Appellant, v. HARRY L. SUMMERS, Respondent

Supreme Court of Idaho

March 3, 1922

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action to contest election of county commissioner of Lemhi county. Judgment for contestee. Reversed.

Judgment reversed, with directions. Costs awarded to appellant.

J. T Pence and John H. Padgham, for Appellant.

The ballot-box of Junction precinct having been proved to be safely kept, and in the same condition as when the ballots were placed in the box, the box locked and placed in the possession of the deputy sheriff, should have been admitted in evidence. The election judges should not be permitted either innocently or otherwise, to disfranchise electors, or count their ballots otherwise than as cast by them. The provisions of the statute as to the safekeeping of the ballots after election are directory. (Newhouse v Alexander, 27 Okla. 46, Ann. Cas. 1912B, 674, 110 P. 1121, 30 L. R. A., N. S., 602; McCarthy v. Wilson, 146 Cal. 323, 82 P. 243; Averyt v. Williams, 8 Ariz. 355, 76 P. 463; Hartman v. Young, 17 Ore. 150, 11 Am. St. 787, 20 P. 17, 2 L. R. A. 596; Murphy v. Lentz, 131 Iowa 328, 108 N.W. 530; 9 R. C. L. 1165, par. 153.)

The ballots of Depot precinct were properly admitted in evidence. The burden of showing that they had been tampered with, or changed, shifted to and rested upon the contestee. (Tebbe v. Smith, 108 Cal. 101, 49 Am. St. 68, 41 P. 454, 29 L. R. A. 673; People v. Holden, 28 Cal. 123; McMenomy v. Ruch, 142 Cal. 77, 75 P. 661.)

The ballots of Depot precinct having been identified and regularly admitted in evidence, were the best evidence and controlling, there being no evidence that they had been tampered with. (Dorey v. Lynn, 31 Kan. 758, 3 P. 557; Schneider v. Bray, 22 Nev. 272, 39 P. 326; State v. Thornburg, 177 Ind. 178, 97 N.E. 534; 20 C. J. 251, sec. 349, and notes 82, 91, 93; Cole v. Plowhead, 31 Idaho 288, 170 P. 732; Coglan v. Beard, 67 Cal. 303, 7 P. 738; Reynolds v. State, 61 Ind. 392; Albert v. Twohig, 35 Neb. 563, 53 N.W. 582; Davis v. Grunig, 143 Cal. 336, 76 P. 1102.)

Provisions in the election laws, as to time and place of holding elections, the qualifications of voters, and such others as are expressly made essential prerequisites to the validity of an election, are held mandatory; all others are directory. (Russell v. McDowell, 83 Cal. 70, 77, 23 P. 183; People v. City of Los Angeles, 133 Cal. 338, 65 P. 749.)

E. W. Whitcomb, for Respondent.

The ballot-box in Junction precinct was not properly kept after election and no verity could be attached to the ballots. (Farrell v. Larsen, 26 Utah 283, 73 P. 227, and cases cited; Hughes v. Holman, 23 Ore. 481, 32 P. 298; Powell v. Holman, 50 Ark. 85, 6 S.W. 505; Kindel v. Lebert, 23 Colo. 385, 58 Am. St. 234, 48 P. 641; Dennis v. Caughlin, 23 Nev. 188, 44 P. 818; Rhode v. Steinmetz, 25 Colo. 308, 55 P. 814; Quigley v. Phelps, 74 Wash. 73, Ann. Cas. 1915A, 679, 132 P. 738; Fishback v. Bramel, 6 Wyo. 293, 44 P. 840; C. S., sec. 626; McCrary, Elections, secs. 471, 473; Cooley, Const. Limitations, 7th ed., p. 941.)

The ballot-box in Depot precinct should not have been admitted in evidence. (Stokely v. Burke, 130 Tenn. 219, Ann. Cas. 1916B, 488, 169 S.W. 763; Quigley v. Phelps, supra; Huffaker v. Edgington, 30 Idaho 179, 163 P. 793.)

An admission of the ballots of Depot precinct in evidence does not necessarily make them the best evidence. (Graham v. Peters, 248 Ill. 50, 93 N.E. 315; Hartman v. Young, 17 Ore. 150, 11 Am. St. 787, 20 P. 17, 2 L. R. A. 596; Jeter v. Headley, 186 Ill. 34, 57 N.E. 784; West v. Sloan, 238 Ill. 330, 87 N.E. 323; Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018; People v. Livingston, 79 N.Y. 279; Chatham v. Mansfield, 1 Cal.App. 298, 82 P. 343; Tebbe v. Smith, 108 Cal. 101, 49 Am. St. 68, 41 P. 454, 29 L. R. A. 673.)

The delivery of the ballot-boxes to the sheriff of Lemhi county was unlawful and contrary to the provisions of sec. 626, C. S. (Davies v. Board of County Commrs., 26 Idaho 450, 143 P. 945.)

RICE, C. J. Budge and McCarthy, JJ., concur. DUNN, J., Dissenting.

OPINION

RICE, C. J.

Appellant and respondent were Democratic and Republican candidates respectively for the office of county commissioner of Lemhi county at the election in 1920. On the face of the returns respondent had a majority of twenty-five votes, and was given the certificate of election. Appellant brought this contest on the ground that the said election returns were false, in that through the malconduct of the judges of election certain votes in Depot, Junction and Iron Creek precincts of said county which were cast for him were unlawfully counted for respondent, and that such votes were sufficient in number to give him the election.

On the argument in this court counsel for appellant abandoned the contest so far as Iron Creek and Junction precincts are concerned.

The case was tried before the court without a jury, and the ballot-boxes from said precincts were brought into court, opened and the ballots examined by the court. The court found that while the ballot-boxes in said Depot precinct "were in the constructive possession of one of the election judges for over four months, the same were not in his actual possession for much of said time, and that while in his custody, they were exposed to the reach of unauthorized persons, and that during said time they were changed and tampered with to an extent that makes them unreliable as evidence and they do not express the intentions of the voters of said Depot precinct; and have no probative force." It was also found that the office where the ballot-box was kept was on the ground floor of the principal street of said city of Salmon; that said ballot-box was unsealed and reasonable opportunity given for the tampering with said ballot-box and the votes therein; that after said ballot-box was taken into the custody of the sheriff it was placed in a vault in the sheriff's office, the door of which remained unlocked for the larger part of the time, and ofttimes there was no person in charge of the office when people frequently went there to transact business with the sheriff; that heavy election bets were depending on the outcome of this case; that said ballot-box was locked with a flimsy common padlock and had a slit in the top of considerable size.

Judgment was rendered for the contestee, who is respondent here, and the contestant appealed. He assigns errors in part as follows:

1. The court erred in admitting in evidence the statements of the election officers as to the manner of counting the ballots, and for the purpose of bolstering up their returns of election in the Depot precinct, as the ballots themselves were and are the best evidence of the number of votes cast at the said election.

2. The court erred in admitting in evidence, over the objections of the contestant, the returns of election in the Depot precinct for the purpose of showing that the vote was other than is shown by the ballots themselves in the said precinct, the ballots having been shown to have been safely kept, and in the same condition as when locked in the ballot-box the night of the election and placed in the possession of one of the judges of the election.

3. The court erred in finding that "heavy election bets were depending upon the outcome of this case," as the evidence does not support such finding.

4. The court erred in finding that "while these ballots of Depot precinct were in the constructive possession of one of the election judges for over four months, the same were not in his actual possession for much of said time, and that while in his custody, they were exposed to the reach of unauthorized persons, and that during said time they were changed and tampered with to an extent that makes them unreliable as evidence and they do not express the intentions of the voters of said Depot precinct; and have no probative force."

5. The court erred in finding that "the positive testimony of the election officials constitutes the best evidence as to the intentions of the voters of said Depot precinct, and an inspection of the ballots shows that at the time of their examination by the court, they were not in the same condition as when cast by the voters, there being a difference between the count made by the court and the election judges respectively of fifty-four votes, and no evidence of fraud on the part of the election officers. It is further found that on the counting of the votes for other candidates other than that for commissioner of the first district, that the votes practically correspond with the returns made by the election judges."

6. The court erred in finding that "the contestant has failed to prove the specific charges in his complaint."

7. The court erred in making finding VIII to the effect that the contestee received 1,057 votes and the contestant received 1,032 votes at said election, the said finding being contrary to the evidence and the conclusion that the said contestee was elected was and is erroneous and contrary to law and the evidence in the case.

The appellant also assigns as error the making of the conclusions of law that the returns of the officers at said election in the various precincts of Lemhi county constitute the best evidence as to the number of votes received by appellant and respondent; that respondent was duly elected a commissioner of said county at the election held in November, 1920, and is entitled to hold said office.

The evidence shows without dispute that early on the morning following the election the ballot-box containing the ballots cast in Depot precinct was locked and taken by Percy Anderson, one of the counting...