The present section 1482, as contained in the last supplement to our Kentucky Statutes (and which is section 4 of chapter 49 of the 1930 Acts, commonly known as the Brock-Gilbert Bill), contains, inter alia, this provision: "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," etc. Immediately preceding and immediately following that excerpt language is found in the more lengthy one contained in the majority opinion. One of the major questions presented in the case and determined *Page 644 by that opinion was and is: What shall be the effect if such election officers should fail to comply with the inserted provisions of the statute?
There are three possible answers that might be made to the question, since the statute itself makes no provision with reference thereto, or rather it does not expressly provide what shall be the consequences of such violation, leaving the question to be answered by judicial interpretation. The three suggested possible answers are: (1) That the ballots in the box when retained by the election officers and not delivered in substantial compliance with the requirements of the statute, shall be thrown out and not counted; (2) that, notwithstanding such violations, the voters in the precinct so affected should not be deprived of their right of suffrage by the derelict officers of election, and, because thereof, the ballots should be counted by the county election commissioners; and (3) that whether the vote cast in precincts so involved should or not be counted is dependent upon collateral facts that should be established by clear and convincing proof, to be furnished by the one seeking to count them, since the fact of delay, delivery, or transportation as required by the statute would create an adverse presumption and cast the burden on such one to prove the undoubted integrity of the contents of the ballot box sought to be counted, thereby leaving the question in each case to be answered in the light of the proven facts by evidence to the extent and degree indicated.
The opinion on this question, and with which I agree, adopted the latter interpretation, (3), and concluded that under the evidence adduced the votes in the contested precincts should be counted, because the evidence clearly and convincingly shows that the involved violations were the result of ignorance on the part of the election officer, and which might well be true following so recently after the enactment of the 1930 statute. Furthermore, they were of such sparse and isolated occurrence, as to refute the conclusion that preconceived fraud was intended or attempted, or that the contents of the boxes had been disturbed in any respect whatever after the closing of the polls and until delivery was made to the county court clerk. However, if such violations prevailed to such an extent as to indicate formation and execution of a preconceived plan or scheme to alter the returns and make them evidence a different result after being delivered to the county court clerk than was true when the election *Page 645 closed, then a different rule would prevail, and possibly the votes in the entire county or governmental territory so affected would be ipso facto thrown out and not counted. It will thus be seen that the majority opinion pursued a middle ground, the object and purpose of which was to so construe the statute as to prevent as much as possible opportunities for fraud, and at the same time to preserve the right of the voter to have his ballot counted as east. The dissenting opinion adopts and approves answer 1, supra, as the correct interpretation of the intention of the Legislature in enacting the statute; but that interpretation furnishes, to my mind, the most-extended opportunities for easily committed fraud than would follow the adoption of any of the three interpretations suggested. Under it, all that the sheriff of the election would have to do, in order to prevent the counting of the votes cast at a precinct wherein his political opponents received a substantial majority, would be to delay the delivery of the ballot box and ballots to the county court clerk and to take the chances or being prosecuted and fined the insignificant amount provided by the statute for such a violation. To illustrate: If a precinct was known to contain a majority of, say 150 Democrats, or known to contain that majority of Republicans, and the sheriff of the election was of an opposite political faith to that majority, he could destroy it by failing to substantially comply with the statute by delaying the delivery of the box and the ballots to the county court clerk as directed by the statute. Such a consequence would so inevitably follow that interpretation and without any manipulation whatever with the ballot box or its contents.
On the other hand, if such a great number of precincts should be so involved as to indicate a settled scheme and purpose to defraud, and wherein opportunities for that purpose could and would be furnished, expediency would suggest, that the intention and purpose of the Legislature would more nearly be subserved by penalizing such action in such a way as to deny the reward sought to be obtained by such manifested and designed scheme.
I therefore agree with the majority members of the court in adopting the course outlined in answer 3, supra, as being the fairest and most just one of any of those named, or any that suggested themselves to the court. *Page 646