It was said in the case of Taaffe v. Sanderson, 173 Ark. 970,294 S.W. 74, that: "The real object of the courts, in all election contest cases, is to determine whether the contestant or the respondent has received the highest number of legal votes." The trial court appears to have made a very painstaking effort to discharge that duty. The court found that 922 illegal votes had been cast for appellant. The rotten *Page 1040 frauds attending the election appear to have so disgusted the majority that they have washed their hands of it all, before determining whether the contestant or respondent has received the highest number of legal votes. But in their haste and disgust the majority have departed from long and well-established rules for the trial of election contests, and I am therefore constrained to register my dissent.
The law provides and requires that the result of elections shall be certified by the officers holding them. This certificate is clothed with a presumption of verity which is conclusive, until the affirmative showing is made that it is false, and the burden of so showing is, of course, upon the party asserting the falsity of the certificate. The official election returns are quasi records and stand until overcome by affirmative evidence against their integrity. Schuman v. Sanderson, 73 Ark. 187, 83 S.W. 940; Powell v. Holman, 50 Ark. 85, 6 S.W. 505.
In ordinary election contests opposing candidates challenge the validity of votes counted for their opponents. After deciding what ballots were illegally cast, these are then put aside, and those remaining are counted and the result is determined. The testimony is thus confined to the challenged votes. When, however, it is shown that frauds were committed, not only by the electors in voting, but the officers of the election in holding the election, the returns which they make of the election are then said to be discredited. The case of Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680, cited in the majority opinion points out the difference in the effect of fraud committed by the electors from that committed by the officers of the election.
Now, it may be conceded that the testimony set out in the majority opinion so far discredits the certificate of the election officers in the four precincts which have been thrown out as to destroy the presumption of verity which would otherwise attend the election returns. It will be observed that two of these townships were carried by appellant, and the other two by appellee. But even so, this is no reason for not counting the legal votes which were not fraudulently cast in those townships. *Page 1041
A motion to throw out the returns of a particular precinct is, in effect, an objection only to the competency of the returns as evidence. To sustain this motion in a proper case (as the instant case may be conceded to be), the effect thereof is to determine that the certificate of the election officers has lost its probative value. Such a ruling does not determine the legality or illegality of any particular vote. It merely decides that the certificate of the election officers to the election returns is not proof as to the number of votes cast for any candidate. The throwing out the returns of any precinct affects only the method whereby the vote of that particular precinct may be established. Each candidate has as many votes after such a ruling as he had before; but he must present other evidence to show such votes; he can no longer rely on the election returns as proof.
I do not understand that the majority question these well-established principles, as they are declared in the cases cited in the majority opinion. The majority say: "We think the showing made by appellant was sufficient to impel the court to exclude the entire vote in said townships, and that it should have done so unless the appellee had offered to call in all the remaining electors in said townships, whose votes were not excluded as illegal to show by them that they were legal votes, and that the burden was upon the appellee to do so, because he was the beneficiary of such votes."
It is this statement, as applied to the facts of this case, which prompts my dissent. It appears to be conceded that appellee has the majority of the legal votes, unless both Belcher and White River Townships are discarded. The returns, as certified by the election officers, gave appellee only three votes in Lower Hill Township and no votes in Upper Hill Township. Of these three votes only one was counted by the court as legal. The majority hold that the entire vote of all these townships must be discarded and disregarded because the appellee had not called in all the electors whose votes were not excluded as illegal.
Now, the trial court did not sustain the motion to throw out entirely the vote of these townships. Had *Page 1042 this been done, the effect thereof would have been only to hold that the returns were not competent as evidence to establish the vote cast. Each party would then have had the absolute right to show by other evidence the vote cast for himself. This right could have been exercised or declined as each party saw fit, but without other evidence the votes cast in those precincts could not have been counted; not because they were illegal, but because they had not been proved to be legal.
It is very evident that each party challenged every vote adverse to himself, which he believed to be illegal, and the court has in fact and in effect determined the number of legal votes and the candidates for whom cast, independently of the election returns. But it should in any event be kept in mind that the trial court declined to throw out the votes of these townships. There was therefore, under this ruling of the trial court, neither necessity nor opportunity for appellee to prove the vote of any elector whose vote had not been challenged. Had the trial court, at the conclusion of all the testimony, excluded these townships, either party would then have had the right to offer other evidence as to the legal votes which he had received. A denial of this right would, under the majority opinion, have been error calling for the reversal of the judgment. The majority are themselves now committing that error. It is now held, for the first time, that the votes of these townships should be thrown out. It being now decided that the trial court should have thrown out these townships, it follows that each candidate should be allowed to show the number of legal votes which he received in those townships. Evidently this is what the trial court thought he was doing and had done; but, if not so, he should be permitted and required to ascertain that fact. The trial court having held that the verity of the election returns had not been discredited, it would not have been competent or necessary for appellee to prove the legality of votes not questioned, but the court did pass upon all the votes challenged.
Had the trial court sustained the motion to throw out the votes of these townships, then, and in that event, *Page 1043 the necessity for other evidence would have arisen, and the opportunity to offer such evidence would of course have been afforded. This opportunity should now be afforded.
The case of Williams v. Buchanan, 86 Ark. 259,110 S.W. 1024, defines the correct practice in accordance with the views I express. In that case the trial court had held that the fraudulent conduct of the election officers had so discredited the returns as to destroy their value as evidence. The contestant then made proof of the legal votes cast for himself; the contestee did not make this proof. Under those circumstances, only those votes shown to be legal were counted. But here, we have an entirely different case; the court in the instant case overruled the contestant's motion to throw out the townships. There was therefore no necessity for evidence other than the returns, except to prove or disprove the legality of the particular votes challenged. Yet it is held in effect by the majority that contestee should have brought before the court the 160 persons in Belcher township and the 661 persons in White River township, who had voted for him, to prove what the trial court had ruled had already been established by evidence competent and legally sufficient for that purpose.
The majority cite the case of Rhodes v. Driver,69 Ark. 501, 64 S.W. 272, but do not follow the practice there laid down. In that case the opinion recites "that the conduct of the officers of election in Fletcher township was such as to make the returns from that township entirely unreliable." It was said therefore that if the contestee would depend upon the vote of that township he would have to show by proof other than the returns themselves how the votes were cast. In that case, as in this, the trial court had not held that the presumption of verity of the election returns had been destroyed. This court reversed that ruling, but did not order that the vote of that township be disregarded, as has been done in the instant case. On the contrary, it was held that the contestee, after that ruling had been made by this court, "should yet have this privilege" of proving the legal votes which he received in that township. *Page 1044
Upon identical facts the same ruling should be made here, and the trial court should be directed to hear, if he has not already heard, testimony as to the legal votes cast for each candidate; and upon such testimony to find, if he has not already found, who received the largest number of the legal votes, thus fulfilling the real purpose of the contest.