Banks v. Sergent | Cases | Westlaw

The appellant and appellee were opposing candidates for the office of sheriff of Letcher county at the regular election in November, 1897. On the face of the returns, the appellee received 505 votes and appellant 469 votes. The comparing board gave the certificate of election to the appellee. Thereupon, and within 10 days, the appellant gave notice of contest. The appellee gave a counter notice of contest, and upon this notice and counter notice proof was taken, and the contest heard and determined by the county board, composed of the county judge and two justices. The judgment of this board was for contestee, Sergent. The case was appealed to the circuit court, and the same judgment was rendered, and from that judgment this appeal is taken.

The notice of contest given by appellant seeks to have election returns from precinct No. 1 of Letcher county disregarded because of the fact, among others, that the polls were not closed at 4 p. m., the hour fixed by law, but that more than 100 votes were permitted to be cast at that precinct after 4 o'clock p. m. The returns of precinct No. 6 are sought to be disregarded for the same reason,—that from 25 to 50 votes were permitted to be cast at that precinct too late, and because 15 illegal voters had been permitted to vote for appellee, giving names. The charge is that each of these 15 persons had been disfranchised by the judgment of a circuit court. It is also claimed by the notice that there is an error of 10 votes in precinct No. 2, in that appellant by the returns is certified as having received 57 votes, when as a fact he received 67 votes. This notice also complains of the action of the election officers in precinct No. 5 in refusing to count certain ballots returned with the certificate, and appellant seeks to have these counted. There are other grounds of objection to precinct No. 1, —of fraud on the part of the election officers, in that they changed and falsified the result at that precinct as actually cast, by deducting from appellant's number 12 votes; the certificate being that he received 75 votes, when it is alleged that he received 87 votes. The appellee gave a counter notice, in which it is alleged that the 15 illegal voters who were named by appellant as voting at precinct No. 6 voted for appellant, and should be purged. The counter notice admits the alleged error in precinct No. 2 of 10 votes. Appellee charges that in precinct No. 5 there was no attempt to hold the election under the secret ballot law, but that the ballots were marked by the clerk on the table, in plain view of the other election officers, without any disability of the voter being shown, and in the presence of the voters there permitted to be assembled. On these charges and counter charges, as well as that in each of these precincts the officers of election used whisky on the day of the election, and separated, and votes were received by some of the officers in the absence of the other officers, much proof was taken by deposition, and the original ballots and returns are brought here. From the proof here it appears that 361 votes were polled at precinct No. 1. Of this number, appellant, by the returns, received 75, appellee received 121, and another candidate 67. In precinct No. 5, appellant received, by the returns, 131 votes, appellee 41 votes, and the other candidate 13; there being 230 votes cast at that precinct. In No. 6, by the returns, appellant received 53 votes and appellee 63, the other candidate receiving 9 votes; there being 153 votes cast at that precinct. The vote in the other three precincts is not questioned, except the error in 10 votes claimed by appellant in No. 2, which in the counter notice given by appellee is practically conceded.

It is contended by appellee that appellant must fail in this proceeding for the reason that the original notice of contest, which was given on the 6th day of November, was abandoned, and this proceeding is had under a subsequent notice, given on the 12th; appellee contending that a party contestant is bound by the first notice given, and that it could not be changed or amended, or additional grounds set up, in a subsequent notice. We do not assent to this proposition. We are of opinion that, within the time allowed by law to give notice of contest, a person may give notices additional and amendatory, or abandon the first and give others. He may give as many notices of grounds of contest as he desires, provided he does so within the limit of time allowed, and on the meeting of the board of contest he may file any one or all of the notices given, and rely on any or all grounds set out in either of the notices given.

After the board of contest had assembled and were sworn, the appellant offered to file additional grounds of contest, and the board refused to permit same to be filed, or to consider them, because they were not in the notices given within the 10 days allowed by law. This action is assigned by appellant as error, as the amendment was again offered in the circuit court with a like result, the court refusing to permit same to be filed. This question has been passed on by this court at this term in the contested election case of Anderson v. Likens, 47 S. W. 867. In that case it was expressly held that, after the limit fixed by law for giving notice of contest, an amendment or additional grounds of contest could not be filed. To that opinion we adhere.

Appellant complains of the action of the contesting board and the circuit court because they refused to count certain ballots returned from precinct No. 5. The originals of these *151 ballots are here, and are indorsed: “This ticket was counted for all persons under the rooster, and no one else. H. Banks, Clerk Election Precinct No. 5.” This exact indorsement is not on all the ballots, but they are similar. On inspection of the ballot, the cross is opposite appellant's name, which is under the “Log Cabin,” and appellant contends that the votes so marked should be counted for him. The opinion in Anderson v. Likens, supra, also is conclusive of this point. The certificate of the clerk of election alone amounts to no certificate. In any event, the certificate should not be on the ballot. It should be on a separate paper, attached to the ballot, and signed by all the officers of the election. The ballots so certified cannot be used as evidence of any fact, and they should not have been counted by the contesting board.

It is contended by appellant that voting precinct No. 1 should be disregarded, and the returns therefrom not counted for any person for the reason of the almost total failure to comply with any provision of the election law. The same contention is made as to precinct No. 6. On the other hand, appellee contends that the returns from precinct No. 5 should be disregarded, and not counted for any person, because of misconduct of the officers of election, and an almost utter failure to comply with the election law as to the secret ballot, and in canvassing and certifying returns. From the proof before us it appears that in precincts Nos. 1 and 6 the polls were kept open till after 4 o'clock p. m. At precinct No. 1 more than 100 votes were received after 4 o'clock p. m., and at precinct No. 6 fully 30 votes were received after 4 o'clock p. m. We are of opinion that the provision of the election law requiring the polls to close at 4 p. m. is mandatory, and not merely directory, and in any case where it is shown votes have been received at any precinct after 4 p. m. sufficient to affect the result, that that precinct should be disregarded, as there is no way to identify the tickets, if not destroyed, nor any power or way to ascertain how these illegal votes were cast, and consequently it is impossible to disregard these votes only, by deducting them from the party for whom they were cast, where it is clearly shown the polls were not closed at 4 o'clock. However, it appears that at precinct No. 1 the officers of election had whisky in the voting room, and used it themselves on that day, and permitted persons—an election officer or inspector or challenger, as the case might be—in many instances to accompany the voter into the booth where he stenciled his ballot, and permitted persons other than voters in the room or to remain in the room during election hours as well as while the canvass was had and certificates were prepared. This was all in violation of the express letter, as well as the spirit, of the law. In precinct No. 6 it is admitted, by both appellant and appellee, that 15 persons who had been disfranchised were permitted to vote, and the ballot stubs show that most of these voted early, and within the election hours. These 15, with the 30 who voted after 4 o'clock, would make nearly half of the vote at No. 6 precinct illegal. These illegal votes were all cast when the judges of the election knew they were illegal. In precinct No. 5 it is not clear at what hour the polls closed, but we will assume that they were closed at the right time. It is shown that at precinct No. 5 fully 75 persons had their ballots marked on the table by some officer of the election, without any disability being shown and without swearing the voter. The proof shows that the method adopted at this precinct was that the voter would be furnished with a card or slip of paper by some party on the outside before he went in to vote, and on the card were written the names of the parties he desired to vote for, and when the voter went in to vote he would present this card, and one of the election officers would read it aloud, while another officer, usually the clerk, would mark the ballot, and it was then deposited in the box. Again, it is shown that at this precinct the booths were placed near a window, with the windowlights out, and large cracks in the house, it being a log house; that, when the voter went into the booth to vote (such as did go in) it could be seen by the persons outside how he marked his ballot; and it is shown that on one occasion a candidate stood at the window, and asked the voter to “remember me.” (This candidate was not for sheriff.) Further, it is shown that, when the count of the votes was in progress, two of the officers —the clerk and another—did the counting, and at least one other officer sweetly slept. This precinct gave appellant 90 majority. It seems to us that at precinct No. 5 the officers of election wholly failed to hold the election under the law. It was in no sense a secret ballot. The secrecy of the ballot is the fundamental idea of all elections, and this is required by the constitution as well as by statute. This central idea being disregarded in this precinct, and a practical viva voce election held, as the proof shows, we are of opinion that the returns therefrom should be disregarded.

It is insisted, however, that the counter notice given by contestee is insufficient to bring before the court these irregularities in No. 5, and that, therefore, they cannot be considered. Without deciding whether a counter notice of contest is necessary, and without even intimating an opinion thereon, we conclude that the counter notice given by appellee is sufficient to bring those matters before us.

Disregarding these three precincts (Nos. 1, 5, and 6), and also counting for the contestant, Banks, the 10 votes in precinct No. 2, the result is not different from that certified by the county canvassing board. It results in the election of appellee, Sergent. The judgment of the circuit court, resulting the same way, is affirmed.