Windes v. Nelson

• Decision Date: 18 December 1900
• Citation: 60 S.W. 129,159 Mo. 51
• Court: Missouri Supreme Court
• Parties: WINDES v. NELSON.

60 S.W. 129

159 Mo. 51

WINDES v. NELSON.

Supreme Court of Missouri.

December 18, 1900.

ELECTIONS — CONTESTS — RECOUNT OF BALLOTS—PRESERVATION OF RETURNS—FRAUD OF CUSTODIAN—EVIDENCE—SUFFICIENCY.

1. The contestee of an election was the custodian of the ballots, which were delivered to him as county clerk by the election judges. He gave evidence that the ballots had been faithfully kept, and had not been tampered with. Contestant showed by 30 witnesses, who were uncontradicted, that they voted for him, but when their ballots were examined on recount contestant's name was scratched out, and no other name was inserted for the office. The recount showed 60 ballots on which contestant's name had been scratched and no name inserted in its stead, and 22 ballots on which contestant's name had been scratched and contestee's name inserted, and only a gain of one vote for contestant, making a total of 82 errors by the election judges against contestee out of a vote of 1,211, and only one against contestant out of a vote of 1,189. Held sufficient to show that the ballots were tampered with and changed after they were delivered by the election judges into the contestee's custody.

2. Where the ballots have been tampered with after they have been delivered by the election judges to the proper custodian, they cannot be used on a recount to overcome the prima facie facts shown by the returns made by the election judges.

3. Where the contestee of an election was the official custodian of the ballots after they were returned by the election judges, that some of them were changed in contestee's favor while in his possession will not vitiate the entire vote cast in his favor, and authorize contestant's election, as such fraud only affects the votes altered.

4. Const. art. 8, § 3, provides that in contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards as may be prescribed by law. Held that, as the legislature has not prescribed any such safeguards, it is improper, in an election contest, to permit the ballots to be compared with the poll books, and so disclose how each elector has voted, and thereby destroy the secrecy of the ballot.

In banc. Appeal from circuit court, Greene county; James T. Neville, Judge.

Action by H. H. Windes against O. A. Nelson, contesting the latter's election to the office of county clerk of Camden county. From a judgment in favor of defendant, complainant appeals. Affirmed.

This is a contested election case for the office of clerk of the county court of Camden county, growing out of the election held in 1898. The contestee was the incumbent of that office, and was the nominee of the Republican party for re-election to that office, and the contestant was the nominee of the Democratic party. The returns of the judges and clerks of election showed that the contestee was elected by a majority of 10 votes; that is, that contestant received 1,179 votes, contestee received 1,189 votes, and that there were 54 other votes cast at election, but were not cast for either party, making a total of 2,422 votes. The contestee issued to himself a certificate of election. On the 28th of November, 1898, the contestant served on the contestee a notice of contest. On the 8th of December, 1898, the contestee petitioned the clerk of the circuit court to issue an order on the contestee himself, the clerk of the county court, in whose custody the ballots, returns, tally sheets, poll books, etc., were, for a recount of the ballots. The circuit clerk issued the order. The contestee notified the contestant that the recount would be had on December 15, 1898. But it was postponed from time to time until April 12, 1899, when it was begun in the presence of the parties and their attorneys, and the deputy county clerk, who was a son of the contestee, with the result that it appeared that the contestee had been elected by a majority of 93 votes, instead of 10, as shown by the returns of the judges and clerks of election. At the February term, 1899, the contestant procured the venue to be changed from the circuit court of Camden county to the circuit court of Greene county. On the 22d of June, 1899, the contestant filed an amended notice of contest, the contestee filed an answer thereto, and on the 15th of September, 1899, the contestant filed a reply. On the 12th of October, 1899, on motion of contestant, the circuit court of Greene county ordered a recount, which was conducted as before, and resulted in showing that the contestee had received a majority of 91 votes; that is, that the contestee received 1,211 votes, the contestant received 1,120 votes, and there were 91 votes cast at the election but neither party hereto was voted for,—making a total of 2,422 votes. On the 11th of November, 1899, the contestant filed a second amended notice of contest, claiming that he had been elected, and assigning as ground of contest that 118 persons (whose names were set out) had voted for the contestee, when, for various reasons assigned, they were not entitled to vote. The contestee answered, and claimed that 131 persons (whose names were set out) had voted for contestant, when, for various reasons assigned, they were not entitled to vote; that 45 votes were cast for Harrison H. Windes, the nominee of the People's Party for said office, and improperly counted for the contestant; that the entire vote of Mack's Creek precinct was illegal, and should be rejected, because the judges and clerks of election did not give to each voter a copy of each and all of the official ballots furnished them, but gave to each voter only a copy of the ballot containing the nominees of the political party the judges knew or believed the voter belonged to, or such as the voter indicated that he preferred; and that the voters did not retire alone to the booth, and prepare their ballots, but were permitted by the judges to prepare and cast their ballots without doing so. On the 15th of November, 1899, the contestant filed a reply, in which he denied that the votes cast at the election were properly counted and canvassed by judges and clerks; averred that a large number of votes actually cast for contestant were, by mistake, not counted for him by the judges, which, if properly counted, would have given contestant a majority of several hundred votes; "and that said contestee, well knowing said fact, after the poll books and ballots had been delivered into his custody as county clerk, for the purpose of preventing the discovery of such mistake, mutilated and changed the ballots in his possession so that when a recount was had under this proceeding it became impossible to determine precisely the number of votes actually cast for him and contestee, respectively, at said general election. And the contestant further states that the errors charged by the contestee in counting the votes by the judges and clerks of election, as stated in his notice of contest, and as appears upon the face of the ballots on the recount, were not the actual ballots cast by the voters at said general election, but the said ballots were changed after they were received into the custody of the contestee as said county clerk, and were made in his interest, to defeat the rights of the contestant herein." The case was tried in the circuit court in November, 1899.

The difference between the vote as shown by the returns of the judges and clerks and as shown upon the second recount, in October, 1899, has been compressed into tabular form by counsel for contestant, and is not controverted by counsel for contestee, and is as follows:

                ======================================================================================================================================================================================================================================
                                     |                        Votes cast for                     |                                        |
                                     |                      Co. Clerk as Shown                   |                                        |                            Vote on County Clerk as Shown by Recount
                                     |                        by Returns of                      |                                        |                                     after it had been Changed
                                     |                      Judges and Clerks                    |                                        |
                                     |                          of Election                      |                                        |
                                     |-----------------------------------------------------------|                                        |-----------------------------------------------------------------------------------------------------------
                Townships —          |               |               |            |              |                                        |               |               |            |             |              |              |
                Precincts.           | Nelson Votes. | Windes Votes. | Nonvoting. | Total Votes  |                                        | Nelson Votes. | Windes Votes. | Nonvoting. | Total Votes | Windes Loses | Nelson Gains | Nelson's Total
                                     |               |               |            |    Cast.     |                                        |               |               |            |     Cast.   |   Scratches. |  Insertions. |      Gains
                ---------------------|---------------|---------------|------------|--------------|----------------------------------------|---------------|---------------|------------|-------------|--------------|--------------|------------------
                                     |       A       |      B        |     C      |      D       |                                        |       A1      |      B1       |      C1    |      D1     |              |              |
                Adair —

...