‘By reason of misconduct on the part of the election board of precinct No. 1 in Douglas, Cochise county, Ariz., at said election, a large number of ballots that had been properly and duly marked by the voters who cast the same so as to indicate their intent to vote for contestee were fraudulently changed by members of said election board by the partial erasure of the marks placed thereon by said voters and by fraudulently placing other marks thereon, and said ballots so fraudulently changed and marked by said election board were wrongfully counted for contestant, and the number of these were 123 or more.’
‘That their chief asset in the successful conduct of their ‘profession’ is the natural or acquired habit of successful mendacity and deceit.'
‘I have heard the evidence, and I now give those votes to Campbell that I feel were taken from Campbell and given to Hunt. By Mr. Ives: When? By the Court: At some time *265 during the count or shortly afterwards, somewhere along there. By Mr. Bullard: And the tally sheets should show 42 more votes for Campbell and 42 less for Hunt? By the Court: Yes; that is all.’
‘The court erred in rescinding its ruling striking out the precinct of Douglas No. 1 for the reason that the evidence shows gross misconduct and actual fraud to have been committed by the election officers therein as follows: The court found from the evidence that 42 ballots cast for appellee, and which should have been counted for appellee, were fraudulently changed by said election officers and counted for appellant, and that 5 additional ballots which as originally marked by the voters should not have been counted for appellant were fraudulently changed and fraudulently counted for appellant; that both said 42 ballots and said 5 ballots showed upon their face that they had been so fraudulently changed; that certain other ballots are shown to have been fraudulently changed by said election officers in the interest of a certain candidate for the office of justice of the peace; that the evidence indicated that, in addition to **601 said 47 ballots, certain other ballots, the number of which may not with certainty be ascertained, were fraudulently changed in the interest of appellant and counted for appellant; and that therefore the counting of said 42 ballots for appellee and the taking of said ballots from appellant's column did not purge the returns from said precinct of all of the fraud committed by said election officers with respect to the office of Governor.’
‘There is a distinction between particular illegal votes the effect of which may be proven and exactly computed and fraudulent combinations, coercion, and intimidation. It can never be precisely estimated how far the latter extends. Their effect cannot be arithmetically computed. It would be to encourage such things as part of the ordinary machinery of political contests to hold that they shall avoid only to the *266 extent that their influence may be computed. So wherever such practices or influences are shown to have prevailed, not slightly and in individual cases, but generally, so as to render the result uncertain, the entire vote so affected must be rejected.’
‘It has also been held by this court in the case of Dorey v. Lynn, 31 Kan. 758, 760, 3 Pac. 557, and in other cases, that, whenever the ballots cast at an election can be properly identified, they are the best evidence, and much better and more *276 reliable than a mere abstract or summary of the same made by the election officers; but whenever it is shown that they have wrongfully been tampered with, as has been shown in the present case, they lose their controlling character as evidence. Hudson v. Solomon, 19 Kan. 177, 187; Coglan v. Beard [65 Cal. 58] 2 Pac. 737. And where there is nothing else than discredited ballots to contradict the returns, the returns will be held to be conclusive.’
‘It was and is the theory of appellee that during the counting of the ballots as many as 42 ballots were fraudulently changed by erasing the cross in the square at the right of the name of appellee or the cross in the square at the head of the Republican column and inserting in pencil a cross either in the square at the head of the Democratic column or in the square opposite the name of appellant.’
‘It is not for the appellant to furnish hypothesis, but we do repeat that it is far more likely that some designing person, subsequent to the making of the returns, sought by this crude method to bring into disrepute a precinct in which, as the evidence shows, the appellant received a large majority.’
*277 ‘The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so great as when it is known precisely how many votes it will take to change the result; and men who are willing to sell their votes before election will quite as readily sell their testimony afterwards, especially as the means of detecting perjury and falsehood are not always at hand until after the wrong sought to be accomplished by it has become successful and the honest will of the people has been thwarted’
‘I didn't see the package containing the ballots from Wilgus precinct. I went out and looked for it. I have no personal knowledge whatever with respect to that package of ballots from Wilgus, and never saw it at all.’
‘I found the package from Wilgus precinct under my counter on the day that I packed the ballots to bring them to this court. I don't know who put the package under my desk or how they got there. All the packages received by me from *278 the clerk of the board of supervisors were checked, and Wilgus was not then amongst them, and got into my office in some way unknown to me. I don't know how long the package had been in my office. Wilgus precinct was not in the list of packages turned over by the clerk of the board. This list was made up by the clerk of the board of supervisors and by a representative of both the Republican and Democratic parties, who excepted Wilgus precinct because it did not appear.’
‘2929. All proposed constitutional amendments or other propositions or questions to be submitted to the voters shall be printed at the bottom of the ballot, in such order as the secretary of state may designate, and each such amendment, proposition or question shall be followed by the words ‘Yes' and ‘No’ or ‘For .....’ and ‘Against .....’ as the nature of the amendment, proposition or question may require, and at the right of and opposite each of such words shall be placed a square of the size of those placed opposite the names of candidates, in which the voter may indicate his vote for or against such amendment, proposition, or question, by a mark (X).'
‘2940. Any person desiring to vote for all the candidates of any political party may do so by placing a cross in the square at the top of the column under the name of such party, otherwise he may vote for any candidate by placing his cross in the square opposite the name of such candidate.’
*280 ‘If you do not wish to vote a straight ticket, put an ‘X’ in the square after the name of each candidate that you wish to vote for.'
‘The decisions cited in the preceding sections upon the question whether the provisions of the law are mandatory or directory are not entirely harmonious. They, however, disclose a well-defined disposition on the part of the courts to distinguish between acts to be performed by the voters and those devolving upon the public officials charged with the conduct of the election. The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and, on the other, of relieving him from the consequence of a failure on the part of election officers to perform their duties according to the letter of the statute, where such failure has not prevented a fair election. The justice of this rule is apparent, *282 and it may be said to be the underlying principle to be applied in determining this question. The requirements of the law upon the elector are in the interest of pure elections, and should be complied with at least in substance, but to disfranchise the voter because of the mistakes or omissions of election officers would be to put him entirely at the mercy of political manipulators. The performance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do.’
‘Ballot No. 2 shows a cross, thus, X, not in the square or appropriate place opposite the name of appellant, but to the right of appellant's name, between such name and the square opposite the name of appellee. While there was some plausibility in the contention of appellant that the way in which this ballot was marked showed that it was the intention of the voter to vote for appellant, still, as was held in the case of Parker v. Orr (decided at the present term of this court) [158 Ill. 609] 41 N. E. 1002 [30 L. R. A. 227], it cannot be held a sufficient compliance with the statute. It is clear from the statute and the form of ballots prescribed that the appropriate place for the cross is in the circle or square preceding the title or name, and not some blank space discovered by the voter at the right of such title or name. [Italics ours.] As to the ballot in question, as the cross is between the names of appellant and appellee, being at the right of the former, and at the left of the latter, the only reason for supposing that the elector intended to vote for appellant, rather than for appellee, is that the cross is nearer appellant's than appellee's name.’
‘In each column at the right of the name of the candidate and on the same line there shall be a space so inclosed by rule work as to make a square three-eighths of an inch in size, in which a voter may designate his choice by a cross mark. Below the name of the last named candidate for each office in each column, shall be placed as many blank lines as there are offices of the kind to be filled, and in like manner a square shall be placed after such blank space. Upon such blank lines *289 the voter may write the names of any person or persons for whom he desires to vote whose names are not printed, and in the squares opposite the same, he shall designate his choice by a cross mark as in the case of printed names.’
‘The statute does not, however, prescribe any inflexible rule as to what shall or shall not be accepted as a cross mark, and any mark, however crude and imperfect in form, if it is apparent that it was honestly intended as a cross mark, and for nothing else, must be given effect as such; otherwise, electors unaccustomed to the use of pen or pencil might be disfranchised.’
‘The facts speak for themselves, and neither invite nor require argument. This precinct was never canvassed, and there is no evidence whatever tending to establish that the votes that were counted by the court were the votes actually cast.’
‘I presume he throwed it [the Wilgus package], in there and it went into the treasurer's office, and that is the only way I can account for it. * * * Evidently as he came in he throwed this Wilgus package in the wrong side and went on.’
‘In election cases, if the return is discredited, so that it is no longer evidence of the right of the party claiming under it, then the question who received the majority of the votes is to be ascertained by other legal proof. The vote of the district or precinct to which the return relates is not to be disregarded. The electors ought not to be disfranchised because no return is made or because it has been rendered valueless by the fraud or mistake of others.’
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