It is with extreme diffidence that I register my dissent to the opinion of my associates in this case. But my views of the section of the statute herein involved, and its proper construction, impel me to protest against the language used and the conclusions reached by them. The opinion breaks down every barrier provided by law against the perpetration of fraud in election. It not only emasculates, but in effect annihilates, the statute. The purpose of the statute was to make assured, protect, and safeguard the integrity of the ballot box. The reasons for its enactment are furnished by the history of the election laws, of their nonobservance by the election officers, and their construction by the courts.
Section 1596a-3, Ky. Statutes, affords the privilege and accords the exercise of the right to the governing authorities of political parties to select a list of eight names of individuals, from which the officers who are to hold the election must be selected.
It is common knowledge that the governing authorities of political parties in some sections of our state, when exercising the rights and privileges given to them by that section of the statute, indulged in the practice of selecting and placing on the list of the eight names those individuals who were known to have had acquired experience and skill in the art of perpetrating frauds in elections, and who could and would dexterously, without leaving signs or tokens thereof, debauch the ballot box. Fraud in elections is sometimes engaged in by only one or two individuals, but it is generally perpetrated in the execution of a scheme, design, or plan by a group or organization. The number of cases in the courts arising therefrom during the past several years have crowded each other on the courts' dockets. Since 1900 and until the enactment of the act of 1930 (chapter 49), which is construed by the court in this case, section 1596a-3, Ky. Statutes, authorized and intrusted the care and custody of the ballot boxes to the election officers from the closing of the polls until they were delivered to the county clerk's office, and two days were therein allowed for the election officers to discharge these statutory duties.
On account of the deference and respect of the courts to the supreme and all-important right of the *Page 647 voters to exercise their sovereign right and sacred duty to cast their ballots according to their own choosing, and to have them correctly counted, this court has repeatedly in a large number of cases announced and adhered to the rules which the court in its opinion in this case applies by the use of the following language:
"That, if the statutes do not expressly declare that noncompliance with a specified procedure shall result in throwing out the precinct or other district, a noncompliance that does not affect the fairness and equality of the election or the ascertainment of the true result will not vitiate the election. 9 R. C. L. 1091, 1092; Marilla v. Ratterman, 209 Ky. 409, 273 S.W. 69; Muncy v. Duff, 194 Ky. 303, 230 S.W. 49; Craig v. Spitzer, 140 Ky. 465, 131 S.W. 264, and cases cited. Cf. Stewart v. Wurts, 143 Ky. 50, 135 S.W. 434. To hold otherwise would be to subordinate the substance to the form, the end to the means. It is a transcendent rule that the right of suffrage will not be destroyed by irregularities or derelictions on the part of officers charged with the duty of conducting the election fairly and honestly, unless their misbehavior was such as to render impossible of judicial determination the will of the people as expressed at the polls."
The purpose of the act of 1930 (section 1482) was not only to repeal section 1596a-3, but to abrogate the exceptions and modifications thereof which had been grafted onto it by its construction by this court. By the construction of section 1482 as given to it by the court's opinion, it and the repealed section 1596a-3 are identical in meaning and in purpose. The opinion of the court grafts onto section 1482 the exceptions and modifications which the former opinions of this court added to and took from by construction section 1596a-3. Thus we have a new law in language, intent, and purpose, and by the opinion of the court identical with the repealed statute.
In the multitude of cases arising out of fraud in elections and involving the actions and conduct of election officers, in connection with the relationship thereto, this court was in most, if not in all of them, from the very nature of the charge, compelled to rely exclusively on the testimony of the officers of election and those who engaged in the perpetration of the fraud under their supervision, and oftentimes with their assistance. Because *Page 648 of the lack of experience in such nefarious and pernicious practices, it may be truly said that the ability of the courts to discern and expose fraud in such cases is about as unequal to the agility of those who engage therein in such a successful manner as to prevent a discovery thereof, as would be the qualifications of any member of the court to engage with Tunney in a fistic combat. The failure of the law as observed by the election officers and as administered by the courts were the reasons for the enactment of the act of 1930.
Section 1596a-3, supra, as it was observed by the election officers, construed and administered by the courts, was not only impotent as an impediment, but as a preventative against the perpetration of fraud in elections by the election officers and forces acting in concert with them, it was a consummate failure.
Prior to the enactment of section 1482 and during the existence of the repealed section 1596a-3, another section provided that, "where election officers fail to do their duty, or shall wilfully perform it in such a way as to hinder the object of the law, they may be punished by fine and imprisonment." A penalty was provided for a voter repeating or voting more than once at the same election, or voting in more than one precinct; for tampering with the ballots; for receiving a bribe; for bribing another; for unlawfully interfering with an election. These provisions of the statute are in their nature supplementary to section 1596a-3 to protect the integrity of the ballot boxes. These penal statutes have neither prevented nor deterred the commission of fraud in the counting, custody, and caring for the ballots cast in elections. All of them together scarcely hindered or delayed, much less prevented, the pollution of the ballot and the corruption of elections. The wisdom of the General Assembly and its admiration of, and desire for, purity in elections, and in order to remedy the defects in the law then in existence as construed and administered by the courts, and by reason of which fraud and corruption were generally indulged in so frequently, actuated the General Assembly at its 1930 session to enact a new election law. One of its provisions is section 1482, Ky. Statutes (Baldwin's 1930 Supplement), wherein it is provided:
"After all voters have voted, and the time to close has arrived, the officers shall announce the *Page 649 same at the door of the voting room and close the polls. They shall then go and take charge of the ballot box, at the booth, and in the presence of each other shall place the lock on the small vent lid and securely lock it, and return the key to the county clerk. Said election officers shall then stamp upon all unused stubs and ballots, with rubber stamp or by writing on the stub and the ballot attached thereto, the word 'unused' and place said stub or ballot book and all other utensils or election material into a linen envelope, to be provided by the county clerk for that purpose, and shall seal with sealing wax across the seal of the envelope and place the county election seal upon said wax, so as to make the letters plainly visible in three different places on said envelope, and each officer shall write his name across said sealed portion of said envelope. The officers of election shall immediately deliver the ballot box and the envelope containing the unused ballots to the county clerk. The judge and the sheriff of election, of opposite political faith, shall forthwith convey said ballot box and envelope to the county clerk's office, taking his receipt therefor. Said officers shall see that no person other than themselves has access to, or custody of, said ballot box, and they shall each remain in the presence of the other, until said box and envelope is delivered to the county clerk.
"The ballot box shall remain locked, from the time it leaves the county clerk's office and is returned to said office, and until the county election commissioners shall unlock the same for the purpose of counting the ballots as herein provided."
This provision was intended to, and does, supersede not only section 1596a-3, but the construction thereof as had been given by this court to that section, prior to the time section 1482 became operative. It should be presumed that the General Assembly was as familiar with the construction by this court of section 1596a-3 as it was with the contents of the section. The very language of section 1482, and its purpose, leave no room for doubt that it was intended in its effect and operation to be mandatory. This sentence in it, "The officers of election shall immediately deliver the ballot box and the envelope containing the unused ballots to the county clerk," thus *Page 650 makes this duty mandatory as to all of the officers of election, although there appears therein this sentence,
"The judge and the sheriff of election of opposite political faith, shall forthwith convey said ballot box and envelope to the county clerk's office, taking his receipt therefor."
These two sentences should not be so construed by the court as to relieve any one or more of them of the duties thereby imposed. A reasonable construction permits both of the quoted sections to operate, in order to avoid the ballot box falling into the hands of one officer, as appears in the present case. The construction of these two sentences is supported by the presence in this section of this language:
"They shall each remain in the presence of the other, until said box and envelope is delivered to the county clerk."
The sentence, "The judge and the sheriff of election, of opposite political faith, shall forthwith convey said ballot box and envelope to the county clerk's office, taking his receipt therefor," should not be construed to relieve the four election officers of the mandatory duty imposed upon them by the first sentence quoted from this section of the Statutes.
Section 1482, Ky. Statutes, is not a penal statute. The duty thereby imposed on all four of the election officers to deliver immediately the ballot box to the county clerk is by its own language mandatory, but, in the case of an emergency, if one or both of the officers designated in the latter sentence cannot immediately deliver the ballot box to the county clerk, then some one of the four should take his place and discharge that duty.
In U.S. v. Baldridge (C. C.) 11 F. 552, 557 section 246 of the Code of Alabama, which is in these words, was before the court:
"It is the duty of all inspectors of elections in the election precincts, immediately upon the closing of the polls, to count out the votes so polled."
In construing it, the court said:
"This statute prescribes what the duty is, and the statutes of the United States make the duty mandatory that the inspectors shall, immediately *Page 651 upon the closing of the polls, count out the votes so polled. . . .
"The word 'immediately' here is the word to be construed, together with the other words of the section. It is to receive a reasonable construction, and does not mean that upon the instant or moment of time when the polls are closed that the counting shall begin, because that would be impossible and impracticable. Sometime would ordinarily elapse and be employed in preparing for the counting out of the vote; but then it clearly does mean that there is to be no unnecessary delay; that upon the closing of the polls the next thing to be done is the counting out of the votes. It means that no other business shall intervene to occupy and distract the attention of the officers in charge until the matter in hand shall be consummated. This view of the matter rests upon reason as well as the letter of the law.
"The object of the statute manifestly was that there should be no delay, because delays would offer opportunity for evil-disposed persons to tamper with the box, and change or rifle it of its contents. The object is that no opportunity shall be afforded which would serve as a suggestion or temptation to persons to tamper with the contents of the ballot box.
"It doubtless often occurs that some delay is necesary — as, for instance, to get lights; and in some cases a change of place from that where the voting was done might be rendered necessary by the circumstances surrounding the parties, and even the taking of food might be a necessity under the circumstances; but in such cases the ballot-box and its contents should be placed and kept securely in the custody and control of those responsible for it."
No authority, logic, or reason is offered by the court in the present case for not construing and applying the word "immediately" as it was construed and applied in the Baldridge case. The opinion of the court cites the Baldridge case as authority, and then not only ignores it, but applies principles in conflict therewith, and thus authorizes the counting of ballots which were in the sole possession of one election officer from 36 to 40 hours, and "who leant to Willis," the beneficiary of these particular ballots. *Page 652
Even under the rule enunciated in Edwards v. Logan, 114 Ky. 312, 70 S.W. 852, 854, 75 S.W. 257, 24 Ky. Law Rep. 1099, 25 Ky. Law Rep. 435, the contents of these three ballot boxes should not be received and counted.
The language of this court in that case, and which is applicable to the present one, is:
"If the boxes have been rigorously preserved, the ballots are the best and highest evidence, but, if not, they are not only the weakest, but the most dangerous, evidence.' Judge Cooley, in his work on Constitutional Limitation (625), announces substantially the same rule. Also, see People v. Sackett, 14 Mich. 320; People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141. The authorities are abundant that, where ballots have been so exposed as to have offered opportunity to be tampered with, and have not been guarded with that zealous care which will contravene all suspicion of substitution or change, they lose their presumptive purity, and are no longer to be relied on as evidence in a contest or judicial inquiry as to the result of an election. McCrary, Elect. 475, etc.; Powell v. Holman, 50 Ark. 94, 6 S.W. 505; Hudson v. Solomon, 19 Kan. 177 (Opinion by Brewer, J.); Hartman v. Young, 17 Or. 150, 20 P. 17, 2 L.R.A. 596, 11 Am. St. Rep. 787."
This is a typical case for the application of the law laid down by this court in Edwards v. Logan, supra, even if the new section of the statute does not operate to annul this court's more recent interpretation and application of the old statutes.
It may be suggested that for a paltry sum some election officers would hold out ballot boxes for the purpose of invalidating the ballots cast in that particular precinct, and thereby defeat a candidate. It may be admitted that this may occur in isolated instances, but it is equally as true that, if such officers in any precinct should for a small sum be influenced to so hold out the ballot box to invalidate the ballots, the same officers for an additional sum would tamper with, and destroy, the actual vote cast in the precinct. Every rule of action prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong, frequently works a hardship against the highest citizenship of some members of society. *Page 653
Fair, free, and honest elections are the desire and purpose of the law. And, whilst the construing of section 1482 to be mandatory might in isolated cases result in a hardship to a candidate, it is very clear that such construction will result in depriving those who engage in committing fraud in elections of both time and opportunity of committing acts to destroy in an entire county, district, or even the state, by the execution of a general plan of defeating an honest election, and a fair and free count of the ballots cast thereat.
The old law, section 1596a-3, required a count of the ballots, the sealing of them, the inclosing of them in a ballot box, securely locked, and a certificate showing the count to be signed by all the election officers, and returned within the ballot box to the county clerk's office. This provision afforded slight means of detecting and discovering fraud in elections, committed by election officers and those acting with them, between the time of closing the polls and the delivery of the ballot box to the county clerk. Section 1482 requires the ballots in the ballot box to be returned to the county clerk, but it requires no certificate, and authorizes the making of no record by the election officers, which might be used in lieu of the certificate authorized by the repealed law and which might be used to check and to discover the tampering with the ballots by the election officers between the time of closing the polls and the delivery of the ballot box to the county clerk to be placed by him under guard and kept thereunder until the ballots are counted. The only protection against fraud afforded by section 1482 is the honesty and integrity of the election officials who deliver the ballot box to the county clerk. It is plain that, if they are corrupt or willing to participate in tampering with the ballots, or permit them to be tampered with during this space of time, there is no means or methods provided by the law to prevent them from being tampered with, or to discover and disclose such tampering except the officials who have the custody of the ballot box during that interval. It should be conceded that, if they are of that type and character who will engage in the commission of fraud, they will exonerate themselves and save the integrity of the ballot by "swearing a he like a gentleman." This shows the importance of the courts requiring a strict compliance with section 1482.
In the present case the ballot boxes in the three precincts in the representative district were carried by one *Page 654 officer in each of the precincts to his home where the same remained from Saturday night until some time the following Monday morning, or from 36 to 40 hours, thus affording ample time and opportunity for tampering with the ballots in these respective precincts.
In these three precincts it appears that the officers who carried the ballot boxes to their homes "leant for Willis," the contestee. The county clerk of Edmonson county testified that the ballot boxes used in that county "easily admitted a 100 page magazine to be stuffed under the lid into the box, without opening the vent or wrinkling the magazine." "To turn the box upside down and shake out a ballot was a simple process, and to replace the ballot so removed with another."
I submit that, if the election officers in the three precincts involved may be afforded the opportunity of 36 to 40 hours time in which to tamper with the ballot boxes of the type and character shown by the evidence to have been used in this election, and that section 1482 be construed as authorizing such disregard of it, then the election officers in any other precinct in any other or subsequent election may disregard it, and may retain in their individual custody, at their homes or wherever convenient, the ballot boxes containing the ballots of the voters under the authority of this case. Such a construction of the statute affords an "Appian Way" to fraud in elections, and renders section 1482 without force and effect, and leaves the section repealed by it in effect. The giving to it the construction given by this court, in the majority opinion, makes it in effect and purpose the same as the law which it was intended to supersede, and leaves those who desire to continue the perpetration of frauds in elections without let or hindrance, in the same manner and way in which fraud was committed in elections prior to its enactment. When this court by its construction of section 1482 permits it to operate as mandatory then the candidates and their friends in the future will know the duty resting upon election officers to comply with it, and that the duty must be discharged by them or the ballots will not be counted in case of contest. The authorities of the political parties will then select and submit names of individuals for election officers who will perform their duty instead of selecting individuals who will disregard their oath of office and statutory duty in order to win *Page 655 election by means of fraud, as history of elections in this state shows has been done.
With these views, I am constrained respectfully to dissent from the majority opinion.