
    Case 85 — Action by John B. Hurst against W. R. Bailey, Contesting an Election.
    June 12.
    Bailey v. Hurst.
    APPEAL FROM HARLAN CIRCUIT COURT.
    Judgment for Plaintiff and Defendant Appeals.
    Reversed.
    Elections — Drinking by Election Officers — Calling Particular Persons to Vote — Opening op Ballot Bon — Irregularities not Affecting Result — Recounting of Ballots — Conclusiveness of Officers’ Certificate — Ballots Tampered with.
    Held: 1. The vote of a precinct will not be thrown out because the election officers drank some liquor during election day, the quantity drunk not being sufficient to affect them in the discharge of their duties.
    2.- The calling of particular persons from the crowd to vote, iff order to save time, was -not a substantial irregularity; it not appearing that any one did not vote or left the grounds on account of delay.
    3. The direction of the statute that the ballot box must not be opened must give way to the more essential direction that the election must be held; and therefore, where the only pen of the clerk fell into the box by accident, the opening of the hox to take out the pen, in order that the election might proceed, was not improper, none of the ballots being touched.
    4. Irregularities in the mode of conducting the mere details of the election which do not tend to affect the result will be disregarded.
    5. In recounting the ballots upon the application of the contestant, the recount should be confined to the grounds of contest alleged.
    6. The certificate of the officers of election is prima facie correct, and' the presumption of the proper discharge of official duty in counting the votes is not overthrown by the ballots, if, when they are produced, it appears that they have been tampered with.
    N. B. HAYS, attorney for appellant.
    This is an election contest for the office of county judge of Harlan county at the November election, 1901.
    The certificate of election was given to the appellant, who, by the official count received 701 votes, while appellee, Hurst, received 546 votes, giving Bailey, the appellant, a majority of 155 votes. But by a recount ordered by the lower court, appellee, Hurst received 680 votes, while appellant received only 562 votes, giving a majority to appellee.
    On the merits of the case we contend:
    1. That the ballots can not be recounted for any purposé not specifically pointed out in the alleged grounds of contest — nor can a vote be taken from either party unless it is alleged as a ground of contest that said vote or votes were wrongfully counted for such party.
    2. That the grounds of contest alleged are mere irregularities, that did not affect the result of the election and should be disregarded.
    3. That where it appears from the evidence and the ballots themselves, that they had been tampered with before the recount was made, such recount can not overthrow the original official count and returns made by the officers of the election.
    AUTHORITIES CITED. .
    Stamper v. Higgins, 38 Mun., 222; Merit v. Hinton, 55 Ark., 12; McCreary on Elections, 4 Ed., sec. 475; Paine on Elections, sec. 787; Coghlan v. Beard, 65 Cal., 58; A. & E. Bney., vol. 17, 2 ed., p. 717; State v. Noble, 118 Ind., 350; Anderson v. ¡Likens, 20 R., 1001; Banks v-, Sergent, 20 R., 1024; Constitution, sec. 151; Kentucky .Statutes, 1586-87; Struss v. Johnson, 100 Ky., 319; Cowan v. Prowes, 93 Ky., 156; Wilson v. Hines, 99 Ky., 221; Luneeford v. Culton, 35 R., 504; Southall v. Griffith, 100 Ky., 91.
    JAS. ANDREW SCOTT & W. C. MARSHALL, iron appellant.
    1. We insist that Hurst’s alleged petition of nomination did not comply with the statute, and the lower court erred in compelling the county clerk to place appellee’s name under the “log cabin,” and in this way hundreds of voters were deceived into the belief that they were voting for the nominee of their party.
    2. We contend that the court, in appointing special commissioners to recount the vote, and failing in that order to specify and direct that in inspecting and recounting said vote, and in passing their opinion upon the regularity and legality of the same, they should only take into consideration, and inspect with reference to the grounds of contest set out in the pleadings in this case with reference to the respective precincts.
    3. The order appointing said commissioners, the report mads by them, and the confirmation thereof by the court, were and are all null and void. The judicial investigation for which th? ballots are preserved under tlie election law of 1900, can not be delegated; and the report of the commissioners of the recount, necessarily shows that the alleged facts set out, were arrived at by the exercise by them of judicial power, as we maintain, unauthorized.
    AUTHORITIES CITED.
    McCreary on Elections, secs. 702, 705, 87, 298; State, eos ret O’Malley v. Lesureur, 103 Mo. —, 22 S. W. Rep., 481; 17 Am. & Eng. Ency. of Law, 717; 39 Wis., 390; 119 Ind., 536; 4 Green, Iowa 104 and 120; 66 N. C., 309; 10 Am. St. Rep., 143; Chase’s Blackstone, 833' and 841; Kentucky- Statutes, Art. 2, chap. 2, sec. 395; Also secs. 1453 and 1587; 81 Ky., 254; 22 R., 692, 19 R. R., 977; 20 R., 1914 and 1001; 17 R., 1149.
    W. -S. PRYOR, MONTGOMERY & LEE, akd J. G. & J. S. FORESTER, EOB 4PPKLLEE.
    According to the certified returns and the fraudulent and illegal manner in which the votes were counted, Bailey, the appellant, was elected by a majority of 155 votes. Hurst contested, setting forth various grounds of- contest and also asked a recount of the ballots insisting that the returns on their face, showed that he had been elected; Bailey also insisted on a recount.
    , But when the recount is had, then, for the first time" we hear oí mutilated and changed ballots -and an effort is made to show that the windows of the clerk’s office could not be fastened down, and persons might have gone in and perpetrated this great wrong.
    Skidmore, the county clerk, the man who had been fighting Hurst, was there until January, when- the deputy under him succeeded him.
    Upon hearing the contest, this case was referred to commissioners to count the vote, the appellant selecting H. C. Rice, an uncle of appellee, and the appellee selecting A. B. Cornett. They were to coimt the vete in the presence of the attorneys for each party, and they made their reports showing that appellee had been elected by 118 votes.
    It is complained that by the appointment of these commissioners, they were invested with judicial power, such as the judge alone could exercise. It was not expected or necessary for the judge to sit quietly down and count all these ballots. It was done in his presences or at least when they made their report he had the ballots and boxes all before him.
    We insist that the court did not err in overruling the exceptions to the commissioners’ report,, that the case was fairly heard and tried in the manner provided by law, and that no-error has been committed to the prejudice of the substantial rights of appellant.
   Orimox or Tin-’ court by

JUDGE HOBSON

Reversing.

Appellant, \Y R. Bailey, and’ appellee, John B. Thirst, were candidates for the office of county judge of Harlan county at the November election, 1901; Ilurst’s name being printed under the Republican device on the ballot, as-the nominee of that party, and Bailey’s name being printed under an independent device. By the official count, Bailey received 701 voles, and Hurst 540. Hurst filed this action, contesting Bailey’s election. The grounds of contest, as alleged in his petition, are as follows: (1) In the precinct where Bailey lived, known as “No. 3,” it was alleged that the officers of election were all drunk, and committed outrageous acts of fraud and corruption, — electioneering with the voters; leaving the voting place at boon; allowing votes to he taken -while some were absent; selecting persons from the crowd in waiting to vote, and holding the poll open until after 4 o’clock; not counting for contestant a large number of votes that were cast for him; and changing the.result of ihe vote after it had been announced. (21 It was alleged (hat in precinct No. 4 the officers allowed people to congregate within a few feet of the voting place, close' enough to hear what wms said by illerate voters, and inthnidato them. (31- In two other precincts (Nos, 1 and Al), it was alleged that the inspector kept tab of the votes called out, and the judges took no part in the count, except to string the ballots. In these two precincts, and in every other precinct in the county, it wras charged that in counting the ballots Hie ¿lection officers failed and refused to count for contestant a great number of ballots where the voter had placed his stencil in the circle under the log cabin, for the alleged reason that the voter did not also place the stencil in the small square opposite contestant’s name, although the voter had not attempted to vote for any other person for county judge. lie prayed a recount of Ihe ballots. The defendant, Hailey, filed an answer, which was made a counterclaim, denying the allegations of the petition, and pleading affirmatively that Hurst was not the nominee of the Republican party, and his name was improperly placed on the ballot under that device, but for which he would not have received 100 votes in the county, and that, at all the precincts, votes which were intended for (he contesten were counted for contestant. He also charged that in one precinct (No. 0), where Nurst received 7S majority, the polls were kept open until 5 o’clock, votes were openly bought for Hurst, and the ballots were exposed so that it could be known that the voter had voted as he promised. Other irregularities were charged in this precinct not unlike those charged by contestant as to district No. 3. He alleged that in four precincts, especially, many ballots were counted for nurst which were not legally cast for him, and also prayed a recount of the ballots. Proof was taken by the parties, and, when the cause came on to be heard, the court .appointed two commissioners to open the ballot boxes and recount the ballots, over the objections of Hailey. The commissioners performed their .duty as directed in the presence of the counsel of the parties. They agreed on the count of the ballots, but they did not agree on the report to be made to the court; one of them being of the opinion that the ballots had been tampered with since the official count, and that for this reason the recount made by them amounted to nofliing. By the recount, Bailey received 5G2 votes, and Hurst GSO votes. The circuit judge refused to allow the commissioner who was of opinion that the ballots had been tampered with to file the report which he tendered, and ordered him to sign the other report. Bailey then filed exceptions to the report, charging the mutilation of the ballots, and asking time to take proof by the election officers and others showing the facts. He filed their affidavits with his exceptions, and had them present in the court house to testify; but the circuit judge overruled the ex-eeption, and, without hearing the evidence offered, adjudged nurst the office. From this judgment, Bailey appeals.

The charges of fraud and corruption on the part of the election officers in precinct No. 3 are not sustained. None of the officers were drunk, although it is shown that the clerk drank, some whisky during the day, and one of the judges also took a drink because he was suffering- from, bowel trouble. The officers were not affected in the discharge of their duties by the whisky they drank, and there js no evidence of fraud or corruption on their part. It is-true, persons were called from the crowd to vote. This was done to save time. As they had only one boo til, the clerk would prepare the ballot for some one in the crowd waiting, selecting as well as he could the nearest man, while the voter was in the booth, and then call the man so selected in to get the ballot as soon as the booth was-empty. It was a very large and cumbersome ballot, extremely difficult to vote; and, from having only one booth, the voters' were necessarily delayed, and there was danger that all could not vote by 4 o’clock. It is not shown that any one did not vote or left the grounds on account of do-lay, and, on the coni vary, it is shown that all but two had voted at half past 3 o’clock. At the noon , recess nothing improper occurred, so far as is shown by the evidence; and, while there is proof that the polls were kept open after 4 o’clock, we think it -is outweighed by the proof thax the polls were closed at the' proper time.

The ballot was a very large one, and covered the entire table. The ballot box was set on a chair by the side of the table. During the forenoon the clerk, in picking up a ballot off the table, knocked'.off of it his pen that he was writing with, and it rolled over on the ballot box, and fell through the slit into the box. They then sent over to a neighbor’s and borrowed a pen. That afternoon precisely the same thing occurred again, the second pen falling into the box. They could not get another pen within several miles, and before they could do this the time for closing the polls would come; so the officers unlocked the box and took out the two pens — not touching a single ballot — and continued the voting. This did not vitiate the vote. The direction of the statute that the ballot box must not be opened must give way to the oilier and more essential direction that the election must lie held; and as they could not go on with the election without the pen, and the box was opened in the presence of all the officers, and by .common consent, and nothing disturbed in the box. no substantial harm was done.

The complaint made as to precinct No. 4 is not sustained by the evidence, nor is the complaint made by appellant as to precinct No. G. It is true, there were some irregularities in all of these precincts, as there nearly always are in an election in some voting places. Rut none of these things affected the result. The rule as to these irregularities is thus well stated in McCrary, Elect., section 228: “Those provisions of a statute which affect the time and place of the election and the legal qualifications of tin' electors are generally of the substance of the election, while those touching the recording and return of the legal votes received, and the mode and manner of conducting the men* .details of the election, are directory. The principie is that irregularities which do not tend to affect results are not to defeat the will of the majority. The will of the majority is to be respected, even when irregularly expressed. The officers of election may be liable to punishment for a violation of the directory provisions- of a statute, yet the people are not to suffer on account of the default of their agents.”

The difference between the official count and the recount by the precincts is as follows:

It will thus be seen that the essential difference between the two counts was in precincts 3 and 4. In precinct 3, which was Bailey’s home precinct, he received by the official count 110 votes, and by the recount 2, Avhile Hurst.received in this precinct by the official count 5 votes, and by the recount 12. In precinct. 4 Bailey received by the official count 124 votes, and by the recount 86, while Hurst received by the official count 36 votes, and by the recount 57. The proof shows that Bailey was an old soldier and crippled, and that his neighbors were pretty unanimously for him. The change in the result in precinct 3 was brought about by the fact that on the recount all the ballots that were cast for Bailey in that precinct were thrown out but 2, on account of the fact that all the ballots but 2, when recounted, were 'marked in some wa'y so as to make them illegal. If there was no evidence in the record, it would be incredible that, in any precinct where everybody was substantially for a candidate, the ballots should all be spoiled in this way; and, from our inspection of these ballots, we have» no doubt that they were mutilated after they left the hands of the election officers. The additional marks are made; in a different ink. They are not made» with a stencil. The commissioner reports that the seals were broken when they opened the ballots, and it appears from the testimony of the election officers that they counted the ballots, as they thought, correctly,- without dispute or difference of judgment. The ballot-boxes have been brought before us. They are made of planks nailed together, and locked with a staple, which is not clinched. • They could be opened without any trouble, and were simply kept in the clerk’s office from the time of the election until the recount. There» was abundant opportunity for tampering with them. The» same thing is true in precinct No. 4, although the fraud there is not so patent as in the case of precinct No. 3. The gain by Iiurst in these two precincts is in some measure due to the fact, as we are satisfied from an examination of the ballots, that some voters did not vote in the race for county judge, and part of these ballots have since been marked for TTurst. If we give Bailev the vote counted for him by the election officers in these two precincts, he is elected, although Hurst is conceded all the votes given him on the recount. It will be observed that Hurst, in his petition, did not charge that votes had been counted for*Bailey which ought to have been counted for him, except in precinct No. 3, where it was charged that votes that were cast for Hurst had been counted for Bailey, and in this precinct Hurst only gained 7 votes on the recount. The object of requiring the grounds of contest stated is to apprise the opposite party of what he is expected to meet. The proof should not only be confined to what is alleged, but, in recounting the ballots, the. recount should be confined to the grounds of contest alleged in the petition. The certificate of the officers of election is primafacie correct, and the presumption of the proper discharge of official duty in 'counting the votes is not overthrown by the ballots, if, when they are produced, it appears that they have been tampered with. The rule on this subject is thus well stated in McCrary on Elections: “Where, as is the case in several of the States, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that the ballots may be tampered with after the count is made known, especially if the vote is very close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law from the time of the original official count until they are produced before the proper court or officer; and if it appear that they have been handled by unauthorized perrons, or that they have been left in' an exposed and improper place, they can not be offered to overcome the official count.” Section 471. “Although the general rule is that the ballots themselves are the best evidence of the number of votes cast, and for whom cast, yet this rule can have no application to a case where the ballots have been tampered with after they were deposited in the ballot box. In such a case the value of the ballots as evidence is almost totally destroyed, and the returns made by the officers of election presiding at the polls may become better evidence than the ballots.” Section 474. From an inspection of the ballots themselves, we are satisfied that this rule should be applied here, and that the certificate of the election officer's is the best evidence as to how the votes were cast.

Judgment reversed, with directions to dismiss the petition.

Whole court sitting.  