Daily globe., 1883-07-12

But we are of the opinion that the pro-
visions of this section are merely directory,
and that where it is clearly and satisfac-
torily proved that the ballots have been
kept intact and inviolate, in the same con-
dition as when counted by the judges of
election, they are admissible in evidence,
although not sealed up in envelopes as re-
quired by the statute. The statute does not
make the ballots evidence. They are com
mon law evidence, and when properly pre-
served and identified, they furnish the
best evidence of the will of the electors. The
statute treats of them as an existing force
of evidence, and gives certain directions
for the more careful preservation of them.
Neither does the statute assume to declare
that the ballot shall not be admissible if
not preserved as the statute directs. The
preservation of the ballots being the only
and ultimate object Of the statute, if that
fact is accomplised the object is accom-
plished and the omission to observe all
the formalities provided by the law will
not be fatal to the competency of the evil
dence, the point of inquiry always being
the will of the electors as manifested by
their ballots.
To exclude such evidence merely on
| account of an omission to comply with these
statutory provisions would put it in the
power of an ignorant, careless or corrupt
Judge of election to frustrate an investiga-
tion into any election.
Therefore the general tendency of all
courts is to hold all such provisions as
directory only. People ex re Daily VS..
Livingston 10, NY 279, Cody in Censt.
Lien, 617 and 618. People VS.. Higgins 3,
Mich. 233.
1t is incumbent, however, upon the pf j y
offering the evidence to show clearly ana.
the satisfaction of the court that the ballots
have been preserved intact before they ca
be admitted. In Newton VS.. Newell, 26
Mimi, 529, this court held that it must
! afirmatively appear that they have been
carefully perused as to place their identity
beyond any reasonable doubt.
We have no desire to modify this rule,
believing that it is founded on the best of
reasons. The returns of the judges of
election are made Immediately after can
vassing the votes, and the votes are can
vassed Immediately after the close of the
polls in public, and usually in the presence
of friends of both parties, and the result
publicly announced.
True, these returns may be erroneous.
either through fraud or mistake, and may
for that reason be impeached, but, as has
been said, sin attempting to remedy one
evil we should be cautious not to open the
door for greater one.'' After the result
of an election is announced, it is known
| just how many votes are required to
change it. The ballots have no marks by
which they can be identified; hence, if the
ballots are to be resorted to as evidence, it
| is nf ha nj 4Io+
kept secure. If they have been preserved
intact, they are the highest and best kind
of evidence; if not, they are the most un-
reliable and dangerous.
Hence the burden is upon the party
offering them to prove their genuineness
But this does not require that they must
be proven genuine beyond all possible
doubt, or beyond mere possibility that
they might have been interfered with
This would be practically to exclude their
entirety under any circumstances.
All that is required is that they be prov.
ed intact and genuine with reasonable
degree of certainty and to the full satisfac-
| tion of the court.
The able and learned court who tried
this case had before them the rule laid
down by this court in Newton VS.. Newell
supra and doubtless acted upon it. They
were satisfied of the genuineness of these
ballots beyond a reasonable doubt, and
have admitted them; and in doing so, we
think they were fully justified by the evil
| dence.
Certainly we, acting as an appellate
court, cannot say they erred.
1t would be impossible here to review
the evidence Oh this point, consisting as it
| does of several hundred folios. An attempt
to do so would necessarily be partial
and imperfect, and would therefore rather
tend to mislead than to aid in other cases.
1t is sufficient to say that it appears that
after the judges of election canvassed the
votes they strung the ballots on thread OF
twine and placed them in the box, sealed
the slit in the box through which the bal
lots were deposited, locked the box, and
put it and the key in the custody of one
or more of the judges, in whose custody it
remained until delivered at the Office OF
the city clerk. That the boxes and keys
were delivered to the city clerk or his
deputy in person, except in the case of one
box, which was left in the city hall, with
the city jailer, at a late hour of the same
day on which the election was held, and
! two or three boxes left with him the next
morning before the city clerks Office was
opened, and in these cases
the testimony of the jailer is
satisfactory to the effect that he delivered
the boxes intact to the city clerk in the
morning; that the boxes and keys were de-
Iivered at the Office of the city clerk by the
judges of election in person, except in one
instance where the judge drove with it to
the door of the city hall and sent his
brother into the Office with it under cir
cumstances which almost excludes the
possibility of its being tampered with
during the very few minutes it could have
been in his possession. Every box was
delivered to the city clerk before or 8
o'clock of the afternoon of the day sue
ceeding the election, except one, which
was not delivered until the morning of the
following day, (Thursday), but the
custody and whereabouts of this
one during the interval is also
satisfactorily FexpIained. As early as
Thursday at least all the boxes were sealed
up by the city clerk and placed in the
vault of the city comptroller where they
remained intact until opened in court.
During the short time, about one day
when they were in the city clerks Office,
before he sealed them up and deposited
them in the vault, their relation, condition