Allen v. Funchess

As stated in the majority opinion herein, the returns of the election, as reported by the election managers throughout the county, disclosed that the appellee, Funchess, had received a majority of 23 votes as the Democratic nominee for the office of chancery clerk; and that on a recount of all the ballots, in accordance with Section 7 of the Corrupt Practices Act, Chapter 19, Laws of 1935, Ex. Session, the appellant Allen was shown to have received a majority of 29 votes.

In determining which of these two counts should prevail, or whether another primary election should be held at the two precincts in question, it is necessary to consider the question of what weight should be attached to the presumption of law in favor of the correctness of the returns made by the election managers. The presumption thus invoked by the appellee is based upon the theory that the election managers have counted the ballots, and have certified the result of their own personal knowledge. Section 4 of the Act here under consideration expressly provides that "when the polls shall be closed the managers shall then publicly open the box and immediately proceed to count the ballots, at the same time reading aloud the names of the persons voted for, which shall be taken down and called by for the clerks in the presence of the managers. . . . And candidates or their duly authorized representatives shall have the right to reasonably view and inspect the ballots as and when they are taken from the box and counted."

In the case of Briggs v. Gautier, 195 Miss. 472,15 So.2d 209, 211, decided by the court in banc October 11, 1943, the court quoted and construed the foregoing requirement of the Corrupt Practices Act in regard to the manner in which the counting of ballots were conducted at the Scranton precinct in Jackson County, and said: "As to whether or not the counting and calling of the ballots for the Scranton voting precinct by two of the managers and their assistants in the main courtroom while the remaining ballots were being counted and called by the other manager and his assistants in the grand jury room had the effect of being a total departure from the requirements of Section 4 of the Act here under consideration, we find that said section of the Act provides, among other things, that `when the polls shall be closed the managers shall then publicly open the box and immediately proceed to count the ballots, at the same time reading aloud the names of the persons voted for, which shall be taken down and called by the clerks in the presence of the managers.' That is to say, the managers, and not one manager, are required to count the ballots and also that whatever is done by the clerks is to be in the presence of the managers, and not in the presence of only one manager. Moreover, it is further required that `during the holding of the election and the counting of the ballots the whole proceedings shall be in fair and full view of the voting public. . . .' This evidently means that the voting public at the particular precinct is entitled to have a fair and full view of the counting and calling of the ballots as well as the holding of the election, which would be impossible if the ballots are divided for counting and some of them are being counted and called aloud at one place by one of the managers while the others are being counted and called aloud elsewhere by the other two managers. Then, too, the Act provides that the `candidates or their duly authorized representatives shall have the right to reasonably view and inspect the ballots as and when they are taken from the box and counted; . . . .' Neither could this right be availed of if the managers are permitted to divide the ballots and count at different places at one and the same time, unless the candidate is expected to anticipate such a procedure and have a sufficient number of authorized representatives at each voting precinct to view what is being done by each of the three managers when the count is taking place."

While it is to be conceded that the departure from this requirement of the statute was more pronounced and glaring in the Briggs case than was the manner of counting the ballots at the two voting precincts here involved, I am of the opinion that our construction as to the force and effect of this legal requirement is applicable in principle to the situation now presented in this case, since the record here discloses that after the polls were closed at one of the precincts in question, the ballots were divided so that a portion of them were counted at one table and the remainder at another table, approximately twelve or fifteen feet from each other, and that the calling aloud of the ballots as they were being counted was in progress at the same time, although the two counts were being conducted in the same room. Amid such confusion as necessarily existed, the probability is that the tallying official at one table would mistake the call being made at the other table as being one which he should record. Moreover, the election manager at one of the tables could not keep up with what was going on at the other with that degree of certainty which would enable him to certify the result of the entire count as of his own knowledge. The testimony of those engaged in the work at the respective tables, as to their calling and counting being correct, is not controlling as to whether there was such a departure from the requirements of the statute as to render the count illegal within the meaning of the law, as declared in the case of Briggs v. Gautier, supra, since the proof in that case likewise disclosed that the counting was correctly done. It also appears that the counting at the other precinct in question did not comply with the holding in the Briggs case. This being true, the presumption in favor of the correctness of the returns of the election managers would not prevail.

As to whether or not the recount which disclosed the result to be a majority of 29 votes in favor of the appellant, Allen, should prevail, it would be necessary in any event, whether we assume that the ballots had been legally counted by the managers or not, that when the recount was taken the ballots were in the same condition, as to showing for whom they were cast, as when originally placed in the ballot box at the voting precinct. The presumption should be that they were in the same condition, in that regard, for the reason that to assume otherwise is to presume fraud and the commission of the crime of burglary and forgery, it being contended by appellee that the theory on which the judgment rendered by the special court should be sustained is that the substitution of new ballots for some of those originally placed in the box was accomplished in the nighttime by breaking into the office of the circuit clerk where the ballot boxes were then located and unsealed. If, however, the said presumption has been overcome by substantial evidence to the effect that the ballot boxes had been tampered with, and the substitution made in the manner complained of, then, of course, their integrity had been destroyed, and the contents of the two ballot boxes in question had lost their value as evidence. Consequently, the recount would have afforded no safe criterion by which to ascertain the will of a majority of the electors at such precincts. I would not feel justified in saying that there was no substantial evidence to sustain the decision of the Special Tribunal which heard the testimony and considered the documentary evidence offered in holding that the integrity of the ballots had been destroyed and their value lost as to the correctness of such recount, as a means of ascertaining the true will of the majority of the electors; although I am of the opinion that other than the fact that the boxes were unsealed, the evidence is unsatisfactory in that behalf in many respects.

For example, the testimony of the handwriting expert was to the effect that the initials of one of the managers had been simulated on the alleged spurious ballots to such an extent that the initialing manager at these two precincts were willing to testify positively as witnesses at the hearing that such initialing was in their own handwriting, as against the contention of the expert that those ballots in particular had all been voted by one and the same person; and if it be conceded that the signature of the initialing manager was, in reality, simulated, such fact is explained by the testimony of one of the lady managers that she relieved temporarily the lady whose initials appeared on the other ballots, and admitted having endeavored to simulate the signature of the latter with her consent, and which fact would by no means prove that several of the ballots initialed by her were marked with an "X" by one and the same person.

Again, it is probable that only a locksmith could have opened the steel doors to the clerk's office; and it would have been necessary that either he or an accomplice should have possessed expert skill as a forger to thus simulate the initialing by the manager, and also that they should have been unmindful of, or indifferent to, the danger of being apprehended while spending sufficient time in the clerk's office, at night, to have forged 26 ballots for substitution, using some of the left-over blank ballots then and there found in the ballot boxes.

But, assuming that I am in error in this conclusion, and that the proof is sufficient to justify the decision of the Special Tribunal, to the effect that the ballots had been tampered with in such manner, it would necessarily follow that if the counting of the contents of these two boxes on the evening of the election was illegal, for reasons hereinbefore stated, the result would be that another primary should be held at these two voting precincts, in order that a legal count may be made, and the true will of the electorate ascertained, since the substitution of the forged ballots has precluded a correct count by the Executive Committee, or the Special Tribunal that heard the contest.

In my opinion, we are not precluded from a consideration of the facts set forth in the bill of exceptions signed by the judge who presided over the Special Tribunal, or any other facts disclosed by the evidence in the records, for the reason that, as shown by the order contained in the majority opinion herein, the Special Tribunal did not make a finding of fact in the case. The order entered makes no reference to any particular factual issue but merely states the conclusion of the Special Tribunal to the effect that "The evidence in this case does not justify this Court in overturning the decision of the legally constituted authorities who have acted heretofore, to-wit: the officers holding the election and the Democratic Executive Committee." And when we look to the same evidence which must be supplied in the order of the Special Tribunal to make it a finding of fact, we find that one of the issues to be determined by this court therefrom is the legality of the counting at the precincts here involved. I think that when this is done, it follows that under the construction given the statute in the Briggs case, an illegal count is equivalent to no count at all.

Section 5, Chapter 19, Laws Ex. Session 1935, provides that where it is found that there have been failures in material particulars to comply with the requirements of the Act and to such an extent that it is impossible to arrive at the will of the voters at the precinct in question, the entire box may be thrown out under certain conditions not controlling in this case, or the executive committee, or the court upon review, may order another primary election to be held at that box.

I am therefore of the opinion that the cause should be reversed and that another primary election should be held at the two precincts in controversy to the end that the will of a majority of the electors may not be left in doubt.

Smith, C.J., concurs in this opinion.