Daily globe., 1883-07-12
THE SHRIEVALTY.

In the supreme court yesterday Justice
Mitchell filed his opinion on the appeal of
Frederick Richter from the judgment of
the district court of Ramsey county, oust-
ing him from the Office of sheriff of this
county. The opinion, sustaining the
judgment of the lower court, is as follows:
Henry O'Gorman. respondent, VS.. Fred
Richter, appellant.
OPINION.
This is a contest for the Office of sheriff
of Ramsey county.
The board of canvassers declared the re-
suit of the precinct returns as follows:
For O'Gorman, 4,158; for Richter, 4,1S7,
giving a majority of twenty-nine to Rich
ter, to whom certificate of election was
issued.
O'Gorman having appealed to the dis
trict court, pursuant to section 32, chapter
l, general statutes 1873, he was declared
elected and entitled to the office. This
conclusion was based upon an actual count
in court of all the ballots in the ballot
boxes, with the following result. For
O'Gorman, 4,1S9; for Richter, 4,101. Ma
jority for O'Gorman, So.
The only question in the case is the pro-
priety of the action of the court in ordering
a recount and admitting these ballots in
evidence. To this action the appellant
raises three objections.
1. That it was not warranted by the
notice of contest. We think this objection
is not we'll taken.
Section 50 of the chapter referred to
provides that the contestant shall serve
upon the opposite party "a notice specify
ing the points on which the election will
be contested"
Among the points specified in the notice
in this case are:
First-That in canvassing the votes the
Judges of election in all the precincts did
not read and announce each ballot for
sheriff separately and proclaim the same
to the clerks, but in several precincts
failed so to do, and on several different
occasions and at divers times announced a
large number of votes, together and in the
aggregate, but exactly in what precincts
and to what extent this was done the con-
testant cannot set forth with more particu-
larity, but that he believes and charges
that if said errors and mistakes were duly
corrected it would appear that he was duly
elected
Second-That in each of the precincts
ballots on which the name of Richter did
not appear were announced, counted and
returned as votes for Richter.
Third-That in each of the precincts
votes were duly cast for the contestant
which were not counted or returned for
d.m. We think that under the circumstances
this was sufficiently specific to warrant a
recount if preceded by the proper prelim-
mary evidence. Appellant contends that
under section SO, the contestant should
have had the ballots opened and recounted
before he began his contest, so that he
could have specified in his notice minutely
and in detail in what particular precincts
the miscount occurred.
Section IS provides for the careful seal
ing up and preservation Of the ballots for
six months, and then for their destruction,
without the packages being opened; pro-
vided, if any contest of election shall be
pending in which the ballots may be re-
quired as evidence, they shall not be de-
stroyed until such contest is finally de-
termined. Then follows section 49, "In
all cases of contested elections the parties
contesting the same shall have the right
to have the said package of ballots
opened and said ballots referred to by wit
nesses for the purpose ofsuch contest"
It seems very doubtful to Us whether
this gives a right to have the ballots open
ed to any one except a person who has al
ready instituted a contest, the first step in
which is the service of notice. To give
any and everybody this right before any
contest was actually instituted, would, to
say the least of it, be questionable prac-
tice. The language of the statute presup-
poses contest already instituted, and its
object seems to be to give such contestant
the right to have the ballots inspected, not
for the purpose of framing his notice,
but to enable him to prepare his case for
trial-a provision somewhat analogous to
that of section SO, chapter 73, general
statute 1873, which gives a party to civil
action the right to inspect books and
papers containing evidence relating to
the merits of the action.
II. The second objection is that this
canvass of the ballots should not have
been allowed unless cause therefor was
shown by the introduction of some evi-
dence of miscount by the judges of
election through fraud or violation. 1t
may admit of doubt whether a court is
bound to open the ballot boxes and max
ing a recount unless there be some evil
dence furnishing ground Tor supposIng
that a miscount might have been made
by the judges. If party can
demand count by the court without any
such showing it could often be resorted to
as mere fishing expedition.
But even if this be so we think that as
TO all the precincts except the county pre-
cincts and two of the city precincts (the
Second in Fourth ward and First in Sixth
ward) there was evidence tending to show
that the votes had not been counted as re-
Quired by Law asd therefore that there
was aprobability that errors might have
been committed. 1t was proven that the
judges did not read off each ballot by
itself. but divided the "straight' tickets
into lots of ten or more and then an
nounced them in the aggregate as so many
votes for each candidate. 1t may be, as
sugg ested in the argument, that this is the
only practical way to do without consum-
ing an inconveniently long time
in the canvass. But it is
certainly not in accordance with the re-
quirements of the statute, section s,
chapter l, general statutes, 1873.
1t is very liable to result
In mistakes, for it is notorious
fact that frequently "split'' tickets are