Williams v. Buchanan

• Decision Date: 20 April 1908
• Citation: 110 S.W. 1024,86 Ark. 259
• Parties: WILLIAMS v. BUCHANAN
• Court: Arkansas Supreme Court

110 S.W. 1024

86 Ark. 259

WILLIAMS v. BUCHANAN

Supreme Court of Arkansas

April 20, 1908

Appeal from Garland Circuit Court; W. H. Evans, Judge; reversed in part.

Buchanan instituted a contest for the office of sheriff of Garland County against Williams, alleging that contestant was duly elected, and that various frauds were committed in the election, whereby contestee secured a certificate of election and was commissioned.

The court made various findings of fact, of which it will be necessary to set out only the second, third and fifth, towit:

"Second That the judges in the election in Hot Springs Township voting precinct were guilty of wilfully fraudulent conduct in conducting said election by making out the votes of illiterate voters contrary to, the directions of such voters thereby making such voters vote for said Williams when they intended to and thought they were voting for Buchanan; that said judges in said Hot Springs Township precinct also wilfully violated the law by one of said judges making out the tickets or ballots of many illiterate voters in the absence of both of the judges and by the electioneering for said Williams in the voting room with the voters who came there to vote, the said judges fraudulently failed to count for Buchanan about forty votes which were cast for him, and that the fraudulent conduct of the said judges in said Hot Springs Township precinct was of such character and extent as to render the result of the said election in said precinct uncertain.

"Third That the election judges in the Second Ward of the city of Hot Springs were guilty of wilfully fraudulent conduct in making out the ballots or tickets of voters contrary to the direction of such voters, so as to make said voters vote for Williams when they intended to and thought they were voting for Buchanan; that one of said judges fraudulently erased names from some of the ballots during the counting of said ballots after the polls were closed; that said judges also wilfully violated the election law by one of said judges making out the ballots or tickets of many illiterate voters when both of the other judges were absent; that said judges also wilfully and fraudulently allowed many persons to vote in said election who were not legal voters in said Second Ward precinct, and wilfully and fraudulently refused to allow witnesses to appear before said judges to testify as to the qualifications of illegal voters, and that the fraudulent conduct of said judges in said Second Ward precinct rendered the result of the election in said precinct uncertain.

"Fifth That the contestant has proved by competent evidence that 297 legal votes were cast for him in said Hot Springs Tonwship precinct at said election, and that by ignoring and throwing out the vote of Hot Springs Township as certified by the election commissioners, which, as a matter of law, is done and giving to Buchanan the vote cast for him in said Hot Springs Township without purging the First, Second and Third Ward precincts of the city of Hot Springs of the said illegal votes cast for said Williams, and Buchanan has a majority of 184 legal votes in the county; and by throwing out the votes of Hot Springs Township as certified by said judges and commissioners and giving Buchanan the benefit of the said 297 votes which were cast for him in said township, and purging the First, Second and Third wards of the city of Hot Springs of the illegal votes which were cast for Williams in said precincts, and Buchanan's majority is 408. By throwing out the vote of Hot Springs Township and Second Ward of said city, as certified by the election officers, which as a matter of law is done, and giving to Buchanan the legal votes cast for him in said township, without purging the First and Third Ward precincts of the said illegal votes which were cast for Williams, and Buchanan's majority is 390, and by throwing out the votes of said township and the Second Ward as certified by the election officers and purging the First and Third Ward precincts of the said illegal votes which were cast for Williams and giving Buchanan the benefit of the legal votes cast for him in the township, and Buchanan's majority of legal votes in the county is 522. So that from every aspect of the case, as shown by the evidence, Buchanan was elected sheriff and ex officio collector of Garland County."

The court declared as a matter of law as follows:

"And as matter of law the court finds that the said S. A. Buchanan should have judgment against the said Williams for the possession of said office; that said Williams should be ousted therefrom, and that said Buchanan should recover against the said Williams the sum of $ 7,776.19 as his damages for being kept out of said office since the 31st day of October, 1906, to the first day of September, 1907, the date to which the proof in this case shows that said Williams has received and collected the salary and emoluments of said office; that the votes and returns of Hot Springs Township, and the Second Ward of the city of Hot Springs, as certified by the election judges and the election commissioners should be and are thrown out and ignored in determining the results of said election, because of the wilfully fraudulent acts and conduct of said election judges in conducting and holding said election, and that the vote proved by the respective parties hereto as cast for them in said voting precincts, independent of said certified returns, should be and are considered in arriving at the result of said election."

Contestee has appealed.

Judgment reversed.

C. V. Teague, Jas. P. Clarke and R. G. Davies, for appellant.

1. The evidence does not sustain the second finding of the court as to Hot Springs Township, nor the third as to the Second Ward of Hot Springs. No fraud is shown, only that several mistakes were made. It was shown to be untrue that any ballots were made out contrary to the directions of the voters.

2. Ballot boxes must remain in custody and care of the proper officers prescribed by law. Slight irregularities of officers as to keeping or disposition of ballots or boxes are not grounds for exclusion of ballots, if it is clear no prejudice has resulted. If it appears that the ballots have been tampered with, they should be rejected as evidence. Kirby's Digest, § 2838; 10 A. & E. Ency. Law, 732; 50 Ark. 85; 15 Cyc. p. 426-7; McCreary on Elections, § 471. When ballots have been tampered with, the original count must prevail. 25 Col. 308; 15 Cyc. p. 429, § 4; Ib. p. 430.

3. An inspection of the ballots should not be ordered until the evidence is all in, and it is shown with reasonable certainty that ballots were illegally cast and that an examination is material to the determination of the contest. 12 Penn. 575; McCreary on Elections, § 482; 10 Phil. (Pa.) 389. It is therefore error to admit any ballot boxes or ballots in evidence and thereby overcome the presumption in favor of contestee and the returns. The burden was on contestant to prove by whom and for whom the ballots were cast. Where the alleged illegality of ballots cast is not clearly proved, it is proper to dismiss the contest. 15 Cyc. pp. 416-417; 41 Ark. 111.

4. Misconduct of election officers or irregularities must affect the result, or the election is not vitiated. 10 A. & E. Enc. Law, p. 67 and notes. Fraud vitiates an election return, but the entire return of a precinct should not be rejected when possible to eliminate fraudulent votes. 15 Cyc. p. 368; 42 Kans. 54. The result must be changed. 61 Ark. 286; 58 Id. 169.

5. The judgment of ouster and for fees, etc., clearly erroneous. Rhodes v. Driver, 69 Ark. 606; 5 L. R. A. 403; 11 Nev. 382; 15 Cyc. 440.

6. The depositions before the county court should have been suppressed. 80 Va. 58; 9 Ind. 31; 82 Va. 827; 2 A. K. Marsh (Ky.), 236; 33 Ind. 305; 13 Cyc. 938-9; 6 Enc. Pl. & Pr. p. 536, 604, 632.

7. The findings of a judge in a contested election case have the same effect as special findings of a jury. 73 Ark. 190.

8. All evidence after the trial in the county court and afterwards should have been excluded. Kirby's Digest, §§ 2860-1-2.

9. It was incumbent on appellee to show for whom all alleged illegal ballots were cast. 39 A. 686; 15 Cyc. note c and 419; 54 P. 71; 70 S.W. 852; 41 Id. 578.

10. The case was not tried at the first term of the county court after the election, and it abated. Kirby's Digest, §§ 2860-1; 69 Ark. 501; 41 Id. 127; 70 Id. 240; 75 Id. 457; 128 Ind. 174; 34 Cal. 329; 331, etc., and p. 635.

Greaves & Martin and Wood & Henderson, for appellee.

1. The findings of the circuit court have the same force and effect as the verdict of a jury, and will not be disturbed by this court if there is any evidence to support them. 73 Ark. 190; 50 Id. 85; 53 Id. 161; 50 Id. 275, 308; 81 Id. 247. The evidence sustains the findings of the court on all material points. On the second finding, it is shown that the judges electioneered in the poll room. Kirby's Digest, § 2853. The finding as to the second ward in Hot Springs is also amply sustained, and this, if the court properly declared the law, ends the controversy, as it gives Buchanan a majority sufficient to elect him. Fraud discredits returns, and they should be discarded, and only the votes proved should be counted. McCreary on Elections, § 574; 41 Ark. 111; 53 Id. 161; 61 Id. 257; 69 Id. 501; 73 Id. 193; 10 Am. & E. Enc. Law. 774, 838; 53 N.W. 944; 66 Id. 388; 24 P. 26; 49 Am. St. Rep. 69; Paine on Elections, §§ 592, 596; 25 L. R. A. 325.

2. The court properly refused to suppress the depositions filed in the county court. They were afterwards duly transcribed signed, filed, etc., within a reasonable time. There is nothing in the law limiting the time within which depositions...