ON REHEARING.
BUDGE, J.A petition for rehearing has been granted in this ease, the canse has been reargued and resubmitted, and we have again examined the record and briefs of counsel. The controlling question in this ease is whether the elec*199tion returns are correct and should control as against the ballots found in the ballot-bos upon the trial. If this question is answered in the affirmative, respondent must be declared to have been duly elected and the judgment of the trial court affirmed, or a new trial granted.
The law is well established that where ballots have been preserved in accordance with the statutory requirements, so that they have in no way been tampered with, they are the primary and controlling evidence of the number of votes cast for the respective candidates, and are sufficient in themselves, without further evidence, to contradict and overthrow the returns. (Newhouse v. Alexander, 27 Okl. 46, Ann. Cas. 1912B, 674, 110 Pac. 1121, 30 L. R. A., N. S., 602, and note.)
It may also be laid down as a general rule, supported by the great weight of authority, that statutory provisions relating to keeping the ballots after an election will be deemed directory only, and not mandatory, and that therefore mere irregularities by the election officers in the performance of their duties in preserving the ballots, or omissions on their part strictly to obey the'statutory requirements, will not be allowed to result in the rejection of the ballots. (Averyt v. Williams, 8 Ariz. 355, 76 Pac. 463.) In 10 Am. & Eng. Ency. of Law, 2d ed., p. 830, it is said: “When it is made to appear that the statutory provisions have not been complied with, this fact alone does not render the ballots inadmissible, but merely throws upon the person who asks the recount, the burden of proof to show that they have not been tampered with.”
There are many cases which hold that if as a result of the ballots not being kept as required by statute, they are exposed so as to furnish a reasonable opportunity to be tampered with, they cannot be permitted to decide the result of an election.” (30 L. R. A., N. S., note, at p. 606.)
The evidence shows, without dispute, that on the morning following the election, the two ballot-boxes, furnished as required by C. S., secs. 571 and 629, one containing the bal*200lots voted and a checking list, and the other containing defaced, mutilated and unvoted ballots, stubs or ballots voted, a checking list, official rubber stamp, and all other material furnished the judges and clerks of election and-used or not used by them during the holding of the election; were taken by Dryer and Anderson, election judges, to the former’s office in Salmon City and were placed first in the front office and later in the back office; that the door leading out of the back office was usually kept locked, but the door to the front office was usually unlocked although Dryer was away from the office a considerable portion of the time.
C. S., see. 626, provides that: “After the canvass of the votes the judges of election must inclose and seal one of the poll lists; also all stubs and unused ticket books, electors’ oaths, defaced or mutilated ballots, and the election stamp, under cover, directed to the clerk of the board of county commissioners of the county in which such election was held. The packages thus sealed must be delivered direct to the said clerk personally, or transmitted by special messenger without expense to the county, or deposited in the nearest postoffice, by one of the judges to be chosen by lot, and the postage thereon and the fees for registering the same must be fully prepaid, and said package must be duly registered and'receipt therefor taken. The second poll list and ballots must be kept with the seal unbroken for at least eight months, unless the same is required as evidence in a court' of law in any ease arising under the election laws of this state, and then only when the judge having said ballot-box in charge is served with a subpoena requiring him to produce the same in court as evidence in any such before mentioned case, when the same may be opened under the direction of the court. ’ ’
Conceding that the foregoing statutory provisions are directory rather than mandatory, there was a flagrant disregard of • the statute by the election judges in that both ballot-boxes were taken to Dryer’s office, where unused ballots and the official rubber stamp were accessible and by *201means of which ballots could have been substituted or altered in order to change the result from that shown by the election returns.
The trial court found that the ballots of Depot precinct “were in the .constructive possession of one of the election judges for over four months, .... and that while in his custody, they were exposed to the reach of Unauthorized persons, and that during said time they were changed and tampered with to an extent that makes them unreliable as evidence, and they do not express the intentions of the voters of said Depot precinct; and have no probative force.” The court also found that “the positive testimony of the election officials constitutes the best evidence as to the intentions of the voters of said Depot precinct, and an inspection of the ballots shows that at the time of their examination by the court, they were not in the same condition as when east by the voters, there being a difference between the count made by the court and the election judges respectively of fifty-four votes, and no evidence of fraud on the part of the election officers. It is further found that on the counting of the votes for other candidates other than that for commissioner of the first district, that the votes practically correspond with the returns made by the election judges. ’ ’
If there is evidence to support this finding, the judgment of the trial court should not be disturbed. In the original majority opinion it is held that: “ .... the ballots are the best evidence, and that the evidence is not sufficient to sustain the finding of the trial court to the effect that during the time the ballots were in the constructive possession of one of the election judges they were changed and tampered with to an extent that makes them unreliable as evidence, and that they do not express the intention of the voters of said precinct and have no probative force.”
It is not denied that the padlocks with which the ballot-boxes were locked were flimsy, nor that the slits in the boxes were considerably larger than provided by law, nor that *202they were not in the actual custody of any person, or afforded any protection other than as above stated.
It appears from the evidence that the office was on the ground floor and on one of the principal streets of Salmon City. Witness Anderson testified in this connection as follows:
“Q. Have”you had any talk with Mr. Dryer since this ease commenced, with reference to keeping this box?
‘' A. Discussed about it the last day or two.
“Q. Who was present and where was it?
“A. On the street, just he and I talking.
“Q. Who was present, anybody?
“A. John Dryer and myself.
“Q. You said on the street, whereabouts on the street?
“A. At the office, the office was open.” ‘
This evidence was sufficient to warrant the court in finding that Dryer’s office was on the street and on the ground floor, especially in view of the fact that the trial judge must have had ordinary information as to the location of the office. However, appellant does not assign this particular finding as error, and it should therefore be upheld.
Neither is it apparent that these boxes were not exposed to view. Mr. Dryer testified that he kept the boxes in his back office until the sheriff called for them. There is no greater reason for assuming that they were covered than that they were uncovered. The burden was upon the contestant to show in the first instance that the boxes were safely guarded. This he failed to do, but, upon the contrary, the evidence shows that they were not.
When the boxes were taken to Mr. Dryer’s office, the keys were given to Arbogast, one of the voting judges, who testified as follows:
“Q. I will ask you what was done with the ballots when the count was completed? '
“A. They were threaded and put in one of those ballot-boxes here.
“Q. What was put in the other box?
*203“A. What was what?
“Q. What was put in the other box?
“A. Well, I think one held all of the credentials belonging to the election, probably all. I don’t know whether— I don’t remember just exactly whether all the stuff — there was some surplus’ left, tickets that were not used and I think they were probably put in the other box.”
Upon opening the ballot-box it was found that the ballots were not strung on a string, and if the testimony of this witness is to be believed, then there Was a tampering with the ballots.
Percy Anderson, one of the counting judges, testified that at least twenty-five ballots were marked with a cross at the head of the Republican party ticket, “and a cross after the name of Yiel, and the name of Summers scratched out. ’ ’ The record shows he subsequently testified that there were about twenty-five such ballots, “the name of Summers not being crossed or scratched out.” From an examination of the entire testimony given by this witness it is apparent that the word “not” was omitted by the official reporter, and the trial judge certifies that if his attention had been called thereto he would have caused the word “not” to be inserted, thereby making the record speak the truth.
Mrs. Cecil Mulkey, one of the counting judges, in answer to a question as to whether there were quite a number of ballots marked with a cross at the head of the Republican ticket, a cross after the name of Yiel, and the name of Summers not stricken out, answered: “Yes, I would say a number. ’ ’
Upon opening the ballot-box, only two such ballots were found.
The rule is well established in this jurisdiction that where conflicting evidence is submitted to a trial court, sitting without a jury, either as a court of law or as a court of equity, the findings of the court on questions of fact will not be disturbed, where there is some competent evidence to support them. (Wolf v. Eagleson, 29 Ida. 177, 157 Pac. *2041122; Davenport v. Burke, 30 Ida. 599, 167 Pac. 481.) In Dennis v. Caughlin, 23 Nev. 188, 44 Pac. 818, witnesses testified that an unusual number of blank votes for the office of sheriff were noticed at the time of counting the votes, and some witnesses placed the number at from ten to twelve, while others placed it at a less figure. On a recount only three ballots were found showing such blank votes. The court accepted the returns and excluded the ballots, holding that in an election contest the finding of the trial court that the ballots have been tampered with after a canvass' and return by the election officers will not be disturbed where the' evidence is conflicting, and stating that the rule, that as between the ballots and a canvass of them the ballots control, has no application where the ballots have been tampered with after they were deposited in the box.
In view of the evidence to which reference has been made, it is hardly reasonable to hold that there is no substantial evidence to support the findings of the court. If this evidence is worthy of any consideration whatever, and we think it is, it creates a conflict, with respect to which the fiudiug of the trial court is conclusive under numerous decisions of this court.
Nor is it probable that all of those present at the holding of the election would fail to detect a mistake of fifty-four votes between these contestants. ' It was the special business of the election officials to properly count and keep tally of the votes cast. That such a mistáke was made would seem highly improbable in view of the fact that very little discrepancy was shown between the returns and ballots east for other candidates, and that not one of the officials present contradicted the returns made to the clerk of the board of county commissioners.
In Tebbe v. Smith, 108 Cal. 101, 49 Am. St. 68, 41 Pac. 454, 29 L. R. A. 673, it is held that the verity of ballots can be discredited by showing actual tampering therewith, “or that they have been exposed under such circumstances that a violation of them might have taken place. When all-*205this has been said, it remains to be added, that the ques tion is one of fact, to be determined in the first instance by the jury, or trial judge.”
In Hannah v. Green, 143 Cal. 19, 22, 76 Pac. 708, Mr. Justice McFarland, speaking for the court, uses the following language: “The question whether ballots have been sufficiently taken care of so as to preclude any reasonable suspicion that they are not in their original condition is a question which is largely within the judgment and discretion of the trial court, and its determination of that question should not be disturbed here, if the evidence fairly warrants the conclusion which the court reached on that subject.”
In Chatham, v. Mansfield, 1 Cal. App. 298, 82 Pac. 343, the court said: “Whenever circumstances appear that it iá apparent that opportunities existed for evil minded persons to have examined the ballots, and changed them, their integrity is impeached.”
While in the leading case of People v. Livingston, 79 N. Y. 279, the court observed: “They [the returns] may be impeached for fraud or mistake, but in attempting to remedy one evil we should be cautious not to open the door to another and far greater evil. After the election it is known just how many votes are required to change the result. The ballots themselves cannot be identified. They have no earmark. Everything depends upon keeping the ballot-boxes secure.....Every consideration of public policy, as well as the ordinary rules of evidence should establish the fact that the ballots are genuine. It is not sufficient that a mere possibility of security is proved, but the fact must be shown with reasonable certainty. 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.....”
The contents of both ballot-boxes were examined by the trial court, with the consent of counsel. Only one of these boxes was forwarded to this court. What the other contained we do not know, other than that it contained stubs *206of ballots voted, unvoted ballots, the official stamp, etc.; whether the stubs corresponded with the ballots cannot be determined from the evidence before us. Whether there was anything in the box, which was not forwarded to this court that influenced the trial court in reaching its decision, we cannot say. If, under any theory, either of these boxes was properly subject to examination by this court, both of them should have been sent up as part of the record. The character of the testimony offered in this case is such that in the opinion of the writer a new trial should be granted, in order that this court may have the benefit of all the evidence properly admissible in this ease.
The cause is, therefore, remanded for a new trial. No costs awarded.
McCarthy and Lee, JJ., concur.