This is not a case where the sufficiency of the nominating petition was questioned before the election. On the contrary, the case is one where the petition was not only adjudged sufficient by the clerk, but Hubbard's name was placed on the ballot and he received more votes than Ledford. That being true, the burden was clearly on Ledford to show that the votes cast for Hubbard should not be counted because Hubbard's name was not properly on the ballot. To say the least, the rule that a candidate who does not question the right of his opponent to go on the ballot before the election may contest his election on the ground that his name was improperly on the ballot, and his votes should not be counted, though settled by the decisions of this court, is so harsh in its effect that no presumptions should be indulged in, but the defeated candidate should show by clear evidence that his opponent's name was not properly on the ballot. This Ledford sought to do by showing that Hubbard's petition did not contain the requisite number of names. In a sufficient number of instances to affect the result Ledford merely showed that the names of certain petitioners were not signed by them. Under our law a petitioner's name may be subscribed by himself or by someone else in his presence and at his request. The burden being on Ledford it was necessary for him to establish both propositions. Merely showing that the names of certain petitioners were not signed by them was not sufficient, for, notwithstanding this fact, their names may have been signed by others in their presence and at their request. Instead of holding that proof that the names of certain petitioners were not written by the petitioners themselves was sufficient to cast the burden on Hubbard to show that their names were written by others in their presence and at their request, the court should have held that Ledford failed to meet the burden, and his claim that the petition did not contain the requisite number of signers should have been rejected. Having done this the court should have proceeded to try the other grounds of contest on their merits.
For the reasons given I am impelled to dissent from the majority opinion. I am authorized to say that Judges Rees and Logan concur in this dissent. *Page 26