No. 31,311.

#### John N. Free, *Appellant,*v. John W. Wood, *Appellee.*

(22 P. 2d 978.)

Opinion filed June 10, 1933.

*Harold A. Zelinkojj, Dale M. Bryant*and *Howard T. Fleeson,*all of Wichita, for the appellant.

*George Siejkin, Enos E. Hook, E. L. Foulke, F. W. Prosser*and *H. C. Castor,*all of Wichita, for the appellee.

The opinion of the court was delivered by

Smith, J.:

This was an election contest. The contest court decided against the contester. This decision was upheld by the four district judges of Sedgwick county, sitting *en banc.*The contester appeals.

John Free and John Wood ran against each other for county attorney. There were about 57,000 votes cast. Wood was declared to have received 17 votes majority.

*940• A statement of intention to contest the election of Wood was filed by Free. This notice charged errors, irregularities and mistakes on the part of the canvassing board; that in the ninth precinct of the ■third'ward a member of the election board counted about 100 ballots without any other member of the board seeing these ballots; that the result of this count was returned to the county clerk and that such returns were irregular and unlawful; that there were errors, mistakes and irregularities in the third precinct in the township of Ketchi and that the county clerk and county commissioner refused to count 52 absentee ballots that should have been counted. The notice alleged that these irregularities, mistakes and errors gave John Wood a plurality of seventeen votes, and that should they be corrected the result of the election would be changed.

When the case came on to be heard before the contest court the evidence was confined to the complaint about the ninth precinct of the third ward. The evidence showed that there were two boards at this precinct — one being referred to as *the*receiving board and the other as the counting board. ■ The counting board started counting ■state ballots about ten o’clock on the morning of election day. ■ The receiving board started counting state ballots as soon as the polls closed.

About four o’clock in the morning on the day after election a member of the counting board took about eighty ballots and called them off to the other members of the counting board without ■any other members of the board seeing them. The evidence showed that the counting board called 206 votes for county attorney, of which Free received 75 votes — that is, about 36 per cent — while Wood received 131 votes. This is-the board where the ballots were counted with only one member of the board seeing them. The receiving board counted 474 ballots for county attorney, and out of these Free received 281 votes — -that is, about 59 per cent — and Wood received 193 votes.

.Evidence was also offered that the member of the counting board who called the ballots without any one else seeing them had been an active worker for Wood and that she had been heard to say that “we would be in an awful mess if the ninth of the third were counted.” This proffer of evidence was rejected.

Evidence was also introduced as to the ratio of the vote that was counted by the two boards for the office of district judge. It was as follows:

> *941"Per cent, Per cent, approx. approx.

> NeSmith (D) ..................... 192 40 96 46

> Sargent (R) ....................... 290 60 114 54

> McCormick (D) .................. 199 41 91 44

> Almond (R) ...................... 286 59 115 56

> Pierpont (D) ..................... 309 67 125 61¿

> Wightman (R) ................... 154 33 78 38¿”

It will be seen that the ratio of votes between the two boards for this office is about the same, while for the office of county attorney, as has been seen, there is a marked difference. After the sacks in which ballots were kept had been identified and the officer in charge of these had testified that they had been in his continuous custody and had not been tampered with the ballots were offered in evidence. The contestee objected to this offer on the ground that there had been no showing made to overcome the *prima facie*presumption of the correctness of the returns made by the canvassing board. The contest court sustained this objection. It held as follows:

> “Wherefore, it is the ruling of the court that the demand for the recount of the ballots of the ninth precinct of the third ward has not been supported by testimony to show that any sufficient irregularity took place in the matter of the reception or tallying of these ballots to warrant a recount.

> “That it is, in the Judgment of the court, a mere supposition that the ballots themselves will show a variance of count from the recorded result as termed by the judges of the election precinct and canvassed by the county commissioners.

> “It is the further judgment of this contest court that it has no right to open this or any other individual ballot box on the mere asking without a proper basis therefor, and competent and sufficient evidence that a mistake, has occurred or an irregularity perpetrated either willfully or accidentally that would affect the result of the final count.”

The contester then offered the ballots of all the precincts in Sedgwick county. The introduction of these ballots was objected to and sustained on the same ground.

The contester then rested his case. The contestee then demurred to the evidence of contester on the ground that it failed to show any cause of action in favor of the contester, that the evidence was insufficient to show any mistake in the count, and for the further reason that the evidence did not show a probability that a recount of the ballots would decide the contest in favor of the contester. The contester also moved for judgment. The demurrer and motion for judgment were sustained and a motion for a new trial was denied.

The contester appealed to the district court. The four district *942judges of the county seat sat *en banc*and heard the appeal. The contester argued before the district court and urges here that the district court could sit as a trial court and make new findings of fact and conclusions of law. However, since no new evidence was tendered in district court and the hearing there was on the record made before the contest court, that court properly treated the matter as though it were an appellate court.

The case then presents two questions, as follows: Was there sufficient evidence presented to overcome the *prima facie*presumption of the regularity of the return of the election officials; and must the contester first make a showing sufficient to overcome the presumption of correctness of the official returns in order to be entitled to have the ballots counted? We will notice the latter question first.

The contester bases his right to count the ballots on the provisions of R. S. 25-419. The particular part upon which he relies reads as follows:

> “In all cases of contested elections, either of the parties contesting shall have the right to have such ballots opened and to have all errors of the judges in counting the ballots corrected by the court or body trying such contest.”

> This section should be considered in connection with R. S. 25-1411, and in particular the first and sixth subdivisions thereof, as follows:

> “The election of any person declared duly elected to any county office may be contested bj'f any elector of the county—

> “First. For malconduct, fraud or corruption on the part of the judges of election in any township, or of any of the boards of canvassers, or on the part of any member of either of those boards.

> “Sixth. For an3>' error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the election, if the error or mistake would affect the result.”

The judges of the trial court filed written opinions in this case for which they gave their reasons for the decision reached. The opinion of one of'them, among other things, stated:

> “A reading of the entire act shows that the intention of the legislature was to preserve by every safeguard possible the secrecy of the ballot, both before and after voting. An exception was made in contested elections, as under such law without the proviso quoted above the ballots could not be produced or inspected in a contest. We think it clear that the proviso simply created an exception, rather than the creation of absolute and unqualified rights to an examination of ballots in a contest matter.

> “Another reason why we reach such conclusion is that to give the proviso the effect claimed for it by the appellant, would be to destroy most of the *943provisions of the contest statute. This statute sets up the machinery for a contest, provides how it shall be commenced, the causes therefor, the creation of a special court, the hearing of the case, the determination of the issues, etc. (R. S. 1923, 25-1411 *et seq.)*

> “If it had been intended to wipe out the causes for contest, the hearing thereon and a decision following such hearing it would have been easy enough for the legislature to have said so. It not having said so, the conclusion seems inevitable that the two statutes must be read together, and the causes must be proven before a recourse is had to the ballots; that the right exists only when preceded by proper proof. This conclusion is borne out by. the decision of our supreme court in *Moorhead v. Arnold,*73 Kan. 132, which was decided after the statute was enacted. It was there held that there was not an absolute right to introduce the ballots, but that such right arose only after a proper preliminary foundation — in that case, proof that the ballots had not been tampered with.”

The rule is laid down in 20 C. J. 25'5, as follows:

> “Since the ballots themselves, when their integrity has been established, are the best evidence of the result of an election, it is held by some authorities that in a statutory contest where error, mistake, fraud, misconduct or corruption in counting the ballots or declaring the result of an election is alleged, a recount of the ballots upon request of the complaining parties should be ordered as a matter of course. But a party has no right to demand a recount as a mere fishing excursion, and the better rule seems to be that a resort to the ballots cannot be had until the contestant produces evidence which indicates at least a probability that a recount would decide the election in his favor, that there were frauds, irregularities, or mistakes committed in the acceptance of the ballots and return of their count, or that there is error in the record declaring the result of the election; although the actual lawful result as disclosed by a recount will not be defeated by the fact that the recount is ordered before such proof is submitted.”

The majority of the court have reached the conclusion that the above rule from Corpus Juris is the better rule, and that this case is one where from the record it appears that the counting of the ballots would be a fishing expedition.

In *Gray v. Huntley,*77 Colo. 478, the court held:

> “A party to an election contest is not entitled, as a matter of right, to have ballot boxes opened and a recount made. Before such an order can be properly made there must be some preliminary evidence supporting the alleged charges, and then the matter is within the sound legal discretion of the trial court, the exercise of which is oi'dinarily held to be final on review.” (Syl. U 7.)

In *Conaty v. Gardner,*75 Conn. 48, the court, in dealing with an election contest, said:

> “The statute does not provide what facts must be proved, or what evidence *944must be offered, before the judge to whom the petition is toought may direct a recount of the ballots to be made. Before ordering such recount he should be satisfied that the petitioner’s claim is made in good faith and upon reasonable grounds; but what evidence should be considered sufficient for that purpose is a matter resting largely in the judgment and discretion of the trial judge, and it will ordinarily not be reviewed upon an appeal to this court.’’ (p. 52.)

In *State v. Smith,*144 So. 333, that court said:

> “And so it is that in every instance where charges of irregularity of procedure or inaccuracy of returns have been made, and such charges have thereafter been properly put in issue by the respondents’ return to an alternative writ of mandamus, the court must find as a fact that a legal basis for ordering a recount exists, before ordering such recount.” (p. 336.)

In *Pearson v. Norton,*63 N. H. 379, that court said:

> “A recount for such a purpose would not be within the usual range of judicial action, and so wide a departure from the ordinary course of judicial duty cannot be fairly inferred as the legislative intent from anything less than a plain expression of that intent. A design to require the court, without any exercise of judgment upon any question of law or fact, to order a recount merely because it is desired by one of the candidates, is not plainly expressed in the statute, and cannot be reasonably held to be its meaning.” (p. 380.)

In. *Ellwood City Boro’s Contested Election,*286 Pa. St. 257, the court held:

> “Whether or not a ballot box will be opened is within the sound discretion of the court, .and the findings of fact by the court below must be accepted by the appellate court unless clear abuse of discretion be shown.” (Syl. ¶ 1.)

In the case of *In re VanNoort,*85 Atl. 814, the court held:

> “Where a petition for a recount *of*election returns was based upon a mere conjecture that the result might be in the applicant’s favor, and- it appeared equally probable, in view of a partial recount already had, that the result would be to the credit of the incumbent, the petition could not be allowed; the petitioner having no ‘reason to believe’ an error had been made ‘whereby the result of such election has been changed,’ as the quoted words are used in Election Act (2 Comp. St. 1910, p. 2125), sec. 159, authorizing a recount.” (Syl. f 5.)

To a similar effect are the holding's in *Lueders v. Ehlinger,*31 S. W. 2d, *1099;*also *Quigley v. Phelps,*74 Wash. 73, 132 Pac. 738.

The majority of the court have examined the cases cited in the brief of the contester. We realize that there are some authorities which hold that a contester is entitled as a matter of right to have the ballots recounted. The conclusion has been reached that the better reasoned cases are those that have been cited and quoted *945herein. The court has considered that which is well known to all who watch the progress of public affairs, that is, conditions have changed since the Australian ballot law was enacted. The number • of votes cast, the number of candidates for each office and the consequent work involved in making the count have increased tremendously. Not every slight deviation from the prescribed procedure will be regarded as sufficient to justify the contest court in opening the ballot boxes and recounting the ballots.

The contester urges that a sufficient showing was made to entitle contester to have the votes recounted. In answer to this, it may be said that this court is acting as an appellate court in this case. This is true also of the district court. Under the decisions it was the duty of the contest court to weigh the evidence to the end that it might decide whether there had been sufficient showing of irregularity as to make it probable that a recount of the ballots would change the result. At the outset the contester was met by the rule that the result of the count as officially announced was *prima facie*correct. The majority of the court have examined the record and are of the opinion that nothing was shown as to the ninth precinct of the third ward which would show that other than the correct result was reached in the count of the ballots of that precinct.

In the decision of the trial court one of the judges called attention to the fact that a Mrs. Brewer, one of the election officials, testified that no illegal vote was counted, no voter deprived of his right to vote and that, so far as she knew, the votes were properly called and tabulated. It was stipulated that the testimony of the other election officials would be the same as that of Mrs. Brewer. This testimony would tend to support rather than impeach the correctness of the count. The trial court and the majority of this court see in this testimony and stipulation some evidence that the person who is alleged to have counted the 100 votes with only herself seeing them would have testified to the same effect had she been called. It is thought that this is some affirmative evidence to sustain the finding of the contest court.

Contestee urges upon us the fact that as to the candidates for district judge the vote between the receiving board and the counting board did not vary while as to the office of the county attorney there was a wide variance between the two boards. This circumstance is not deemed of sufficient weight to justify a recount in view of the fact that the contest for county attorney was a vigorously fought *946one. Everything was done that could be done to effect the result. A different class of people vote at certain hours of the day. The probable explanation of the way the votes ran is that the board that showed the great discrepancy counted a number of votes that happened to be cast by a group of voters who came into the polling place at the same time and for some reason voted for contestee rather than contester.

The judgment of the district court is affirmed.

Smith, J. (dissenting):

The above is the opinion of the majority of the court. I find myself unable to agree with it. I choose to place my dissent on the ground that any person desiring to contest an election is entitled to have the votes recounted when he complies with R. S. 25-1415 by filing a statement of intention to contest and the bond provided for.

I think this is guaranteed by the provision set out heretofore in this opinion from R. S. 25-419. It is as follows:

> “In all cases of contested elections, either of the parties contesting shall have the right to have such ballots opened and to have all errors of the judges in counting the ballots corrected by the court or body trying such contest."

A great deal has been said in this case about the fact that the purpose of this statute, commonly called Australian ballot law, was to secure secrecy of elections and to purify the use of the ballot by making it almost impossible for any person to tell how another person voted. I have read the section carefully. I am of the distinct opinion that the 'legislature desired to secure honest elections as well as to guarantee their secrecy. Of what use is a secret ballot if it is not counted correctly? And where the correctness of a count is challenged, how is any one to tell whether votes were counted correctly unless they are recounted? What harm could have ensued from a recount of the votes in the ninth precinct of the third ward? They could have been counted for this office in less time than it took the lawyers to prepare the contest papers. By the decision in this case we state to a contester what he must prove in order to sustain a contest, and then say that he cannot use the only possible evidence by which he can prove his case. The provisions of R. S. 25-419 must be read in connection with R. S. 25-1411 *et seq.*When this is done it becomes evident,.in my opinion, that the contest court is nothing but a board created for the purpose of recounting the ballots presented to it.

*947This rule has been followed in other jurisdictions. In the case of *Catron v. Craw,*164 111. 20, 46 N. E. 3, the supreme court of Illinois passed on a similar question. There the statute was as follows:

> “ ‘In all cases of contested elections the parties contesting the same shall have the right to have said ballots- opened and to have all errors of the judges in counting or refusing to count any ballot corrected by the court or body trying such contest; but such ballots shall be opened only in open court, or in open session of such body, and in the presence of the officer having the custody thereof.’ ” (p. 28.)

The court said:

> “In view of this positive language of the statute, the ballots should not always be excluded merely because they cannot be regarded as the best evidence, or as controlling evidence, in determining the result of the election.” (p. 28.)

The court further said:

> “Section 113 of the election law provides that ‘the person desiring to contest such election shall, within thirty days after the person, whose election is contested, is declared elected, file with the clerk of the proper court a statement in writing, setting forth the points on which he will contest the election, which statement shall be verified by affidavit in the same manner as bills in chancery may be verified.’ . . . Now, one of the points on which the appellee relies in his statement or petition is that a correct count of the ballots would show his election; and that, in order to determine the contest, the ballots should be produced, and a recount of them should be made. In view of these allegations in the petition, we are unable to see why it was not proper to admit the ballots for what they were worth, to be considered in connection with other evidence produced. For the error in refusing to admit the ballots, the judgment of the county court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed. Reversed and remanded.” (p. 31.)

This case was followed in *Talbott v. Thompson,*350 111. 86, 182 N. E. 787. To- a similar effect is *Frum v. Learner,*101 Neb. 675, 164 N. W. 715; *Looney v. County Election Board of Seminole County,*145 Okla. 25, 291 Pac. 554, 71 A. L. R. 420; *People v. McClelland,*191 N. Y. 341, 84 N. E. 68; *Browning v. Lovitt,*139 Ky. 480, 94 S. W. 661, and *Gantt v. Brown,*238 Mo. 560,142 S. W. 422.

The majority of the court rely upon the fact that a Mrs. Brewer, one of the election officials, testified that no illegal vote was counted, no voter deprived of his right to vote and that so far as she knew the votes were properly called and tabulated. It was stipulated that the testimony of the other election officials would be the same as *948that of Mrs. Brewer. This testimony would tend to support rather than impeach the correctness of the count. It is said that this testimony and stipulation are some evidence that the person who is alleged to have counted the 100 votes with only herself seeing them would have testified to the same effect had she been called. It is thought that this is some affirmative evidence to sustain the finding of the contest court. This would be of more weight to the writer if it appeared that the person who counted the 100 votes without anyone else seeing them was not available as a witness. The fact is that the record shows plainly that the stipulation was made only to save time.

Something is said about the fact that one elected to office should not be disturbed by baseless appeals. The answer is that where 57,000 votes were cast and the person declared elected had a majority of only 17, and one hundred votes were counted at a precinct with only one person seeing them, an effort to have the votes recounted so that all might see every ballot is hardly to be called baseless. If the complexities of modem life have rendered our election statute obselete I should much prefer to have the legislature amend it by providing a condition under which a recount may be had rather than have the court perform that act by judicial legislation. I think the judgment of the trial court should be reversed with directions to proceed to direct the contest court to recount the ballots in the ninth precinct of the third ward.

Thiele, J. (dissenting):

I do not concur in the disposition made of this case.

R. S. 25-1411, subdivision first, provides, as cause for contest, malconduct, fraud or corruption on the part of the judges, etc., and subdivision sixth, any error or mistake in counting or declaring the result. R. S. 25-1412 provides the matter contained in the first, fifth and sixth causes shall not be held sufficient to set aside the election unless such causes be found sufficient to change the result.

The matter was disposed of by the contest court on a demurrer to the evidence, so it must be assumed that the competent evidence offered is true. The matter was not tried *de novo*in the district court. On the counting board of the ninth precinct of the third ward was one Miss Fay. The testimony shows that Miss Fay announced the vote from about eighty ballots without the same being inspected by any other judge, and folded and strung the *949ballots. Later, at a hearing in a mandamus action to compel a recount of this precinct and at the conclusion of the hearing, Miss Fay was heard to state in substance “We would be in an awful mess if the ninth of the third ward were counted.” One of the learned judges of the lower court, in his separate opinion, states that this evidence is hearsay and incompetent, a conclusion with which I cannot agree. The poll books of this particular precinct show that as pertains to the three democratic and three republican candidates forjudge of the district court, there was, at the greatest, a variance of six per cent in the votes for each as counted by the receiving and by the counting board. However, the result of the count as found by the receiving board was that Free received 281 votes or approximately 59 per cent and that Wood received 193 or approximately 41 per cent. The result, as announced by the counting board, was Free received 75 votes or approximately 36 per cent and that Wood received 131 votes or 64 per cent, a variance in the percentages of 23 per cent. Had the percentages remained constant with those of the district judges, Free would have received at least 50 per cent of the votes cast and counted by the counting board or 103, as against the 75 for which he was given credit, or a difference of 28, sufficient to have changed the result of the election. Of course, whether that result would be reached could only be determined by a recount of the ballots. In my opinion, the *prima facie*showing was sufficient, and the contester was entitled to have the sealed ballots of the precinct opened and recounted. Any other determination would logically lead to the conclusion that the finding of a contest court, ruling on undisputed evidence which leads to the conclusion that there has been either malconduct, fraud, corruption, error or mistake, is absolutely conclusive and subject to review only when fraud, oppression, corruption or arbitrary conduct on the part of the contest court can be shown.

The judgment should be reversed', and the cause remanded with instructions to the contest court to count the ballots from the particular precinct.