Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-05-24
TIE COUNTY CLEREsHIP.
CogIan VS.. Beard-Judge spencer's peci'
sion in Full.

In the SGpeTlOr ApuTt NONAiksH VI -tiiA sAA4NAito
state of California. c. NJ. Coglen, contestant,
VS.. NJ r. Beard, respondent.
The contestant and respondent were rival can
didates for the Office OF County Clerk OF Sacra-
meuto county at the general election held on
the 7th day OF November, 4. d. 1882. The re
turrs from the several Precinct Election Boards
were ON the 18th day OF the same month can
yassed by the Board of Supervisors, from which
ii appeared that respondent had received
piurafitv of sixteen votes, ana thereupon Il GER
tifcate of election was issued to him.
In due time contestant fled IN this Court his
verified statement, wherein he lmpeached the
returns from number OF the election precincts,
claiming that the ballots cast thereat had not
been properly counted, and that upon a true
count ne would have & plurality Of all the votes
cast for said othce
TO be those cast at Precincts Nos Il. 2, 80, l.
- 5. IS 10, % and 81 were produced from the
custody OF the present acting County Clerk. and
given in evidence by contestant, ana III his re-
SI,est recollrted by the Court and the ballots
purporting TO be those cast at Precincts Nos. /
and I6 were in Ike manner introduced IN eyl-
de-ce and recOunte9 at the request OF respond
eut the ballots from No. l Tor the purpose Of
showing their coud!uon ana th&V OF the con
tanning PACKAGE,
testaut and of No. 10 introduced by respondent,
showed gain OF y votes IN FAVOR Of the former,
and making his plurality u votes, and the re
count OF the ballots from Precinct No. increased
his plurality Il votes.
The recognized rule IN contests OF thls char-
Gcter is that although the returns by the can
wasting boards and the certificate of election
issued in conformity thereNltn, are pftm1 .jGc5c
correct, and entlt!e the person IN whose laNof
they are to the once tne recount OF the pallots
by the Court is the better evidence OF the
actual Note cast, anu - -VuSiltsNe, II ~
Court is satisfied thai the identical ballots
have been counted, ana mat they nave
remained III the proper custody from
the time Of the original official count until they
are produced in Court, and that they have not
been handled by unauthorized persons, nor any
opportunity Afforded for any lanperlhg there
with.
The contention OF the learned coonsel lor re
spondcnt is that the ballots so counted by the
Court were not kept IN the proper legal CUSTODY
ana are mol iree from sIaNe USpiCIOH u nav
been fruudulently manipulated
The burden Is upon the contestant 10 satisfy
the Court that the ballots onered lor fecountlhS
have retained their integrity, ana speak as they
did in the hands OF the oflicers OF elecllon.
Il appears from the evidence thal the electioh
returns from these various pteVl4ctSl CouslStihS
OF the poll lists, tally sheets, ana the seaied
packages OF ballots, were dehNered by the
proper election 0hcers 10 the theh count!
Clerk, mos. n DeIke.: III "a ID Ie ,.,',t
able time after the election. That many
of the packages OF Daliots were hqoreed
filed by him when received; ana placeu IN. ~ !
locker IN his Office, ana mat the remaining
packages (arge ones from the precincts III Inc
city OF Sacramento with one exception gre
cinct No. 81, came in large TIN ballot boxes, win
the tally and poll lists, which boxes were
locked and sealed, ana Tor th4t reason Were l9l
Endorsed filed by him. said boxes, with thell
contents, were set aside IN ms once, ana each
evening, before closing his once, ne packages
and boxes whlch had come III uIIiIs tlic ia!
were placed il Il vault of which he kept the
keys.
This vault is in the han OF Records, nulid
ing detached from the courthouse ana ClefK !
Office, and is entered from the room where the
Board of Supervisors hold their meetings. The
doors n this bulltllP and room are
iron secured by substantial locks operated by
keys, but without combinations; the WINDOWS
secured by tireproof and llSht-pr shutters
To these doors several OF the supervisors nae
KEYS; also the Clerk, the janitor OF the build
ings and his assistant, but no others, 50 Tar as L
known.
The vault is fire proof, built expressly fof th'
preservation of valuable papers, mas Two sets o
iron doors one q single door swinging on The
outer janb, and the other double. swinging OF
the inner lambs OF the opening, win space o
about two feet between them
The outer door Is secured with strong loci
of ordinary pattern; the inner one with strons
spring Yale lock, with thin, Hat key.
The uncontradicted evidence OF said Berke!
is in substance that upon qeposltlng sald PACK
ages in the vault he locked the inner door, ant
sealed it with a postage stamp, and placed |
private blind mark IN such manner that th'
door could not be opened Wlsh0ut Inc itct pe!ht
detected, and that ne also IocAeu tne QUE
door, and sealed the keynote with sealing wax
upon which he placed two impressions with TN
edge OF q coin That ne constantly KEPT sac
keys on his person in his poeketj, until NJ
yielded up his Office on the 6th OF January l9L
lowing, and that the keys 70 tiit TN boxes nj
kept IN locked drawer IN MS once, curing
said time.
That selfconstltuted guard OF c!tlzens, CON
posed of the several political parties, ~atchet
the vault for several days and nights aiter INT
ballots were thus Ceposlleu
That the vault renamed apparently uidls
turbed and unopened untl the lo'h OF NoVell
Der when said Clerk unlocked II, ana remove
said tin ballot boxes with their contehts' u!
| packages OF returns, ana some OF me package
Of ballots. ana placed them before the bo9Iu 0
Supervisors, when hed met as q BOARD o. Can
yassers. During SAID canvass the packages o
ballots from precincts Nos. t. = ana D. ana per
| haps a few others, were Droheu open DE li'
Board searching for tally lists ana again re
sealed as was supposed and the hrst Two re
| turned 10 their tin boxes and locked. Al TN
| packages were upon the conclusion OF SaId can
yasS returned 10 the vault, the doofs relpcAed
| the lock Of the outer door resealed with wax
and so remained until about the l2th OF the iol
| lowing December Wheh Sald packages Were
brought into Court, and recounted at the frs
trial of this cause before the Hon. :. 4. benson
! At that time the packages from precincts Nos
and q upon unioCkng the TN boxes were
found to be entirely broken open, the sealing
wax with which they were originally sealed no
adhering at any point and the one FROM No.
gnve evidence OF having been resealed Tn,
sealings Of all the others appeared 20 be intact
The recount made al that time cOrrespondeC
with the recount made at the present trial, witt
the exception of few ballots which were ex
cluded on the last count. on account Of having
distinguishing marks thereon.
Pausing at this point, and weighing the evi
dence, to my mind Il is manifest that the con
testant has made Elll and ample showing tina
the ballots had been keptin the legal and prope
control of the Clerk and that he had exercised
all the care and caution that prudent ,inC
careful officer would he expected to exercise II
their preservation. and that no reasonable op
portu.iity was given for their Unauthorized
! handling or manipulation
Tr.e, f is possible with all Of these precau
tions and safeguards that these ballots mal
have been fraudulently manipulated Inter
estgd parties may have duplicated or stolen tn,
keys to the vault and effected burglarious en-
try, or the Clerk himself may nave been pdHi
clgs c5-ri1iss. but certainly, to authorize tht
Court to indulge in either of these differences
some fact or circumstance must be called to it
attention that would d. least excite its reasona
bic suspicion.
TO this end the respondent exhibits three
propositions, which he contends give rise Z
such grave suspicious
First-Tie relations existing between the con
testant and the former custodian Of the ballots
Berkey. and the fact of the subsequent pos
session Of the ballots by the contestant himself
.Secoud-The disparity between the return.
and the recount as made al the former Gnl
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