I dislike to dissent in a case like this, but as I know of no way to decide cases except to apply well-established principles of law to the facts, regardless of whom it affects, or of what others may think, and the majority opinion is a radical departure from that rule, there is no other alternative.
On the passage of the act providing for the preservation of ballots, we adopted in the case of Bailey v. Hurst, 113 Ky. 699, 68 S.W. 867, 869, 24 Ky. Law Rep. 504, the following rule from section 471 of McCrary on Elections, which is peculiarly applicable to this case:
"Where, as is the case in several of the states, the statute provides a mode of preserving the identical ballots cast at an election, for the purpose of being used as evidence in case of contest, such statute, and particularly those provisions which provide for the safe-keeping of such ballots, must be followed with great care. The danger that the ballots may be tampered with after the count is made known, especially if the vote is very close, is so great that no opportunity for such tampering can be permitted. Such ballots, in order to be received in evidence, must have remained in the custody of the proper officers of the law from the time of the original official count until they are produced before the proper court or officer; and if it appear that they have been handled by unauthorized persons, or that they have been left in an exposed and improper place, they cannot be offered to overcome the official count."
Six months later we quoted with approval in Edwards v. Logan,114 Ky. 313, 70 S.W. 852, 854, 75 S.W. 257, 24 Ky. Law Rep. 1099, 25 Ky. Law Rep. 435, the following from People v. Livingston, 79 N.Y. 288:
"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, and the difficulty of doing this for several months, in the face of temptation and opportunity, requires that the utmost scrutiny and care *Page 151 should be exercised in receiving the evidence. Every consideration of public policy, as well as the ordinary rules of evidence, require that the party offering this evidence should establish the fact that the ballots are genuine. It is not sufficient that the mere probability of security is proved, but the fact must be shown with a reasonable degree of 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."
This rule has been consistently followed in all subsequent cases. Thus in Thompson v. Stone, 164 Ky. 18, 174 S.W. 763,764, the court, after referring to the authorities, said:
"So in this case the question is whether unauthorized or interested persons have had opportunities to tamper with them [the ballots]. If so, then the lower court properly declined to open the boxes and count the ballots."
In support of his motion for a recount in that case, the contestant filed his affidavit showing that the ballot boxes were placed in the clerk's office where persons were accustomed to work at night, but stating that the affiant did not charge or say that the parties so using the office had tampered with, or had any intention of tampering with, the ballot boxes. Before passing on the motion the court heard the testimony of the clerk and his deputies, and their evidence corroborated the affidavit. In holding that the circuit court properly declined to consider the ballots the court said:
"The affidavit discredits the integrity of the ballots, for it is apparent that there was every opportunity to tamper with them."
In Browning v. Lovitt, 139 Ky. 480, 94 S.W. 661, 663, 29 Ky. Law Rep. 692, we held that:
"When a recount is demanded and made, if the box appears to have been opened since its delivery to the clerk by the officers of the election, or if the ballots show evidence of having been tampered with, the court should reject them, and accept the certificate *Page 152 of the officers of the election as the correct vote in the precinct."
On the other hand, in Rich v. Young, 176 Ky. 813,197 S.W. 442, we held that, although the inspection of the ballot box upon its tender in evidence by the legal custodian showed no indication that it had been tampered with, this was not sufficient to warrant a recount of the ballots unless there was clear and convincing proof that the ballot boxes and the ballots had "been rigorously preserved." The rule deducible from these authorities and others that might be quoted is that, before recourse may be had to the ballots to overcome the certificate of election, (1) it must be clearly and satisfactorily proved that the ballots have been rigorously preserved, and (2) there must be no internal evidence of tampering. Hence, if either element is lacking a recount may not be had.
The circuit judge, who was on the ground, understood the conditions, was familiar with the setting, and knew the witnesses, held after a long hearing that there was abundant opportunity for tampering with the ballots, and thereafter inspected two of the ballot boxes and found their conditions altogether different from that described by witnesses introduced by the contestant as existing at the time of their delivery. It further appeared on the hearing that the locks on the boxes were 10-cent locks and insecure; that in some instances the keys to the box were tied with strings on the outside of the box; that other keys were easily accessible; and that in numerous instances election seals, stencils, ink, pads, and sealing wax were all left in the ballot boxes at the time they were returned to the county court clerk's office. On examining the authorities and finding that in no instance had this court upon such a showing approved or ordered a recount of the ballots, the circuit judge declined to go into the ballot boxes, and the matter should have ended there.
But if anything more were needed to confirm the soundness of the conclusion reached by the circuit judge, it developed on the inspection of the ballot boxes by the members of this court. The locks were insecure and such as could have been easily opened by any interested person. In the boxes were stencils, pads, seals, and all the facilities for changing the result. Although the officers testified that the ballots were properly strung, tied, *Page 153 sealed, and inclosed in envelopes which were likewise sealed and indorsed by the officers (which evidence the court disregarded on the unsubstantial ground that the witnesses may not have remembered correctly the most important feature of the election, the certification of the result), the condition of the ballot boxes and ballots was as follows:
In 1 box there were no ballots.
In 1 box the ballots were 11 short.
In 4 boxes the seals on the envelopes had been broken.
In 21 boxes the names of the officers were not written across the flaps of the envelopes.
In 7 boxes the ballots were loose.
In 12 boxes there were no seals on the envelopes.
In 13 boxes the ballots were not properly strung or sealed.
Not only so, but the difference in every race between the original count and the recount in the Race Track precinct is such that it cannot be accounted for on the theory of mistake or collusion on the part of the election officers, challengers, and inspectors. On the contrary, the only reasonable explanation of the difference is that the ballots were tampered with after the election. It is true that on account of the condition of the ballots the court declined to give effect to the recount, but the precinct is mentioned because the ballots themselves, considered in connection with the official returns, furnish strong internal evidence of having been tampered with. Thus we have the following elements: (1) Opportunity for tampering by interested parties; (2) facilities for tampering; (3) internal evidence of tampering; (4) a result different from that certified by the election officers. Manifestly, where such a situation prevails, the ballots themselves "are not only the weakest, but the most dangerous evidence," and therefore are not sufficient to overcome the official returns.
But, notwithstanding the opportunity and facilities for tampering by interested persons, as well as internal evidence that some of the boxes had been tampered with, the majority of the court, taking the position "that every box must stand on its own bottom," and that they detected no evidence of tampering with the ballots in Rosemont *Page 154 Precinct No. 2, have counted the ballots in that precinct and made the whole election turn on the recount. This was done in the face of uncontradicted evidence that the keys were tied on the outside of the box, that the box contained all the paraphernalia for holding an election, and that in the other races there was a variance of only 1 or 2 votes between the recount and the original count, whereas the discrepancy in the sheriff's race amounted to 52 votes, which could have been due only to fraud on the part of interested persons after the ballot box was returned to the courthouse, or to a mistake or conspiracy on the part of all the election officers, challengers, and inspectors — a situation wholly improbable in view of the hotly contested character of the election and the number of interested persons present.
The action of the majority finds no support in Browning v. Lovitt, supra. There the contestant asked a recount of the ballots, which was granted. On reaching precinct No. 13 it was found that the ballots had been stolen. On reaching precinct No. 23 it appeared that the ballot box and ballots had been tampered with. The trial court accepted the certificate of the officers in precinct No. 13, but threw out the vote in precinct No. 23. On appeal it was held that the lower court should have accepted the certificate of the officers in precinct No. 23, as well as precinct No. 13. The propriety of the court's action in counting the ballots in the other precincts was not raised by either party, or considered on appeal.
On the other hand, the precise question was involved in Hicks v. Kimbro, 210 Ky. 265, 275 S.W. 814, 817, where it appeared that the seals and supplies had remained in the ballot boxes, that the county court clerk kept the keys in an unlocked drawer, that the ballot boxes were easily accessible, and that two of the boxes had been rearranged. The court did not go into the ballot boxes and count the ballots in any particular box on the ground that they appeared to be all right but upheld the action of the trial court in refusing to count any of the ballots. In reaching this conclusion the court said:
"The evidence in this case discloses that none of the safeguards provided by our statutes to guard the sanctity of the ballots were observed. The ballot boxes, the keys to their locks, and the election seals were all left in and about the clerk's office. Any one *Page 155 acquiring access to the clerk's office had every opportunity to open the ballot box, to open the envelope containing the ballots, and to remove the string with which they were bound, to change as many ballots as needed to change the result of the election, and then to rebind and reseal and reinclose them in the envelope, and reseal it and lock the ballot box in exactly the same manner as those things had been done by the officers of the election, because they had possession of exactly the same implements and supplies used by the election officers in preparing the ballots originally to guard against their being tampered with."
In the more recent case of Ferguson v. Gregory, 216 Ky. 382,287 S.W. 952, the court, upon evidence that the ballot boxes were insecurely locked, were accessible to interested persons, and that the stub books that had been placed in two of the city precinct boxes had been removed therefrom, approved and applied the rule announced in Hicks v. Kimbro, supra, and refused to count the ballots in any of the boxes although it appeared that the officers of the election complied with all the statutory requirements as to stringing and sealing the ballots, and inclosing them in properly sealed and indorsed envelopes. The majority opinion overrules these two cases, although it is at once apparent that their soundness is beyond question. It is not to be presumed that those who tamper with ballots for the purpose of contest are going to be so crude in their work as always to leave internal evidence of such tampering. Where opportunity and means of tampering concur with actual tampering, the courts should stop there and go no further. Where, as here, the ballot boxes have been kept together, it will not do to measure with nicety the extent of the tampering and speculate on whether this box or that box was tampered with. Otherwise the courts will be in a position of matching wits with those who tamper with ballot boxes, with the result that they will often come out second best and give effect to an election held after the polls were closed.
There is another phase of the court's action that cannot be overlooked. In Edwards v. Logan, supra, we held that, after the lower court had concluded to examine the ballots, it was error not to permit the contestee to offer evidence bearing on their integrity. Inasmuch as *Page 156 the circuit court refused in this case to count the ballots, it was not necessary for the contestee to introduce the officers, challengers, and inspectors in Rosemont precinct No. 2. The value of this evidence was appraised in Hamilton v. Young, 81 S.W. 682, 685, 26 Ky. Law Rep. 447, where the court used the following language:
"The election officers in their testimony, and by their certificates made at the close of the polls on the day of the election, state that the straight Democratic ticket received 103 votes in East Fork precinct and 136 in Randolph precinct. By the recount of the court it is made to appear that the election officers overlooked one-fourth or 23 stencil marks in the squares opposite appellee's name in East Fork, and 14 in Randolph precinct, and the ballots show that no stencil marks were overlooked by the officers in any other race on any other ticket. This fact, together with the further fact that there is no proof or even suspicion that the election officers acted either negligently or corruptly, is sufficient to create a strong presumption, if, indeed, it is not conclusive proof, that the additional stencil marks found on the recount are, to quote the language of counsel, the product of fraud on the part of either interested parties or corrupt partisans."
In Phillips v. Kincaid, 194 Ky. 750, 240 S.W. 737, 738, so strongly relied on in the majority opinion, the court, though of the opinion that the ballots had been properly preserved, did not count the ballots or remand the case to the circuit court with directions to give effect to the recount. On the contrary, it pointed out that the recount might or might not be conclusive, and remanded the case with the following directions:
"On the return of this case, if the ballots in these precincts have been preserved and safeguarded since the rendition of the judgment, the trial court will open the boxes, and if the ballots appear to be regular and legal they will be admitted in evidence, and considered in connection with all other evidence in determining the claims of the parties to this litigation."
In this case the court has made the recount conclusive, although the contestee might have shown by the election officers, challengers, and inspectors, that the *Page 157 votes were carefully and correctly counted as cast, and that there was no mistake nor fraud in the certified result. In short, it has adjudged contestee's rights without giving him an opportunity to offer evidence which he was entitled to introduce, and which might have had a controlling effect in the decision of the questions involved.
There being no basis for the recount, and it being conceded that, without the recount, the contestee received the majority of the votes, the judgment should have been affirmed.
I am authorized to say that Judge RICHARDSON concurs in this dissent.