Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1884-02-14
cnGLAH VS.. BEARD.

familiar with the contested election case for
the office of County Clerk between Charles
NJ. Coglan and NJ. R. Beard. The following
decision in the case was fled in the Supreme
Court Tuesday, February u h:
Cogan, Plaintiff, vs.. Beard, Defendant, No. 9240-
This action under the provisions Of the Code
OF Civil Procedure to contest the right OF defendant
to the office OF County Jerk OF Sacramento, to
which he was declared elected by the Board of Su.
pervisors. From Judgment in favor of plaintiff
the defendant has appealed.
Any electer may contest the right of person de-
elared elected to an office for mal:onduct on the
part Of the Board of Judges, any member there
Of" &C. c. P, lii, Su0d. u And in his written
statement complaint the contestant is required to
set forth specifically "the particular grounds Of
such contest" &C. c p, ,ll5)
In the case at bar the ground OF contest alleged
in the plaintiffs statement complaint is, that in
the several election precincts the Boards of Elec
ton "were guilty OF malconduct, committed as
follows That said ard OF Election counted and
tailed ballots for the said NJ K. Beard for the office
of County Clerk, upon which the said Boards name
did not appear and that said Board failed, neglected
and refused count and tally ballots for c. NJ. Cog
Ian, for the office of County Clerk, upon which the
name Of said C0glan did appear" The averments OF
the complaint are specifically denied.
Tie ballots supposed to have been east by the
voters recounted in the presence Of the Court
In nearly every precinct the recount resulted in
gain to the contestant and lOss to the defendant.
The results reached by the recount to ttc0 OF
the precincts were rejected by the Court below
the learned Judge saying in the findings
While there is not sufficient evidence
TO satisfy my mind that the ballots have been
tempered with CT fraudulently manipulated in
any way, still, from the circumstance OF the
package having been opened, and very considera-
Bile variance being found between the returns and
the &C ua count OF the ballots think it unsafe to
adopt the recount, and therefore in this precinct
/ take the returns"
The pa. kage Of ballots which the Court below con-
sidered it unsafe" to trust not having been
tempered with or " fraudulently manipulated -
although the evidence not sufficient to satisfy
the mind of the Judge that there had been such
tampering or iIaud-had been in the same custody
the packages assumed to have been sent from the
other precincts. AS to some OF these the names OF
the election officers not written across the seals
the packages, nor were the pa kages
clearly identified. The packages were placed in a
vault in the Hall OF Records OF which the Clerk
retained the keys in his possession. The ianitor Of
the Courthouse, his assistant and several members
of the Board Of Supervisors each had key to the
room in which was the vault. The locks on the
doors to the vault were ordinary tumber locks
which could be unlocked by any person having a
KEY to match the locks
If the evidence on the part of the contestant sat
isfed the mind of the Judge that the ballots from
the two precincts had not been tempered with, he
should have adopted the result OF the recount and
not the returns from those two precincts. The ac-
ton o, the Court below could be Justified only be-
caus3 the evidence failed to overcome tie presump-
tlon created by the failed to satisfy the
Court that the ballots had not been tempered with
But the evidence failed to prove that the ballots
claimed to have been cast in two Of the precincts
had not been changed, how oiG the Court reach the
conclusion that the ballots from other precincts had
remained unaltered-it appearing that these who
had tempered with some might have tempered with
all?
1t is evident, however the Court did not base its
rejection OF the recount as to the two precincts
upon the failure of contestant to Ablish aft
lively that the ballots had not been tempered WITH
but that they were rejected out of abundant eau
ton, because it was " ssfer"-the Judge saying
there is not sut lent evidence to satisfy my mind
that the ballots had been tempered with, or fraud
ulently manipulated in any way"
Thus the Court below in effect held that as the
ballots had been in charge of the County clerk, the
that they had not been changed,
and it for the defendant to prove that fraud had
been committed with reference to them. This idea
appears throughout the findings. Thus the Court
finds that the package containing the ballots sup.
posed 10 haze been cast in Precinct 4, Sacramento
city, "was brought into Court intact, and that the
package supposed to contain the ballots cast at Pre-
ciuCt IL, Sacramento CITY, was likewise in good or
der" And again From all the other precincts in
the county the ballots returned in good shape
not in every case complying strictly with the law
but there is not evidence indicating to my mind any
with the BALLOT"
The Court below erred in assuming that the bur
den Of proof was upon the defendant to prove that
the ballots had been disturbed fraudulently inter
fered with. Mr.. Justice Cooley says " The returns
of the Canvassing Boards prmaIface evidence in
the Courts. H. however, the ballots have
not been kept az required by law, and surrounded
by such securities the law has prescribed, with
view to safe rvation the best evidence of the
election, it would that they should not be re-
ceiyed evidence at ALL or If received, it should be
left for the jury to determine, upon all the crcum-
stances of the case whether they constitute more
reliable evidence than the Inspectors certificate,
which is usually prepared Immediately on the close
Of the election and upon actual count of the ballots
as then made by the officers whose duty it is to do
So" Cons. Lin, side p. G25
McCreary in his work on Contested Elections"
'p. 209) lays down the rule: Before the ballot
boxes should be allowed in evidence to oYerturn the
official count and return, it should appear affirma-
lively that they have been safely kept by the proper
custodian of the law; that they have not been eX-
bosed 10 the public handled by unauthorized per.
sons, and that no opportunity has been given for
tampering with them. II this is believed TO be a
rule founded upon presumption that a fraud or
crime has been committed, the answer is that the
rule does no more than make choice between two
OF law, which, in this instance come
IN conflict and cannot both prevail"
In People VS.. Livingston (T9 n. Y, 290), the Court
Of Appeals held the trial Court erred in charging the
jury that to justify the rejection of the ballots
proof, 10 must appear afirmatively by direct evil
ienCe, from circumstances that the ballot boxes
had been nterfered with and fraud committed,
Church, c. j, saying: THE error Is in putting
upon the party against whom the ballot boxes are
the OnttS Of proving that they had in
TACT been tempered with. The burden was
upon the reator to satisfy the jury that the boxes
had remained myislate the returns the primary
evidence of the result of the election. The
returns may be impeached for fraud or mistake,
but in attempting to remedy one evil we should
be cautious not to open the door to another and far
greater evil After the election it IS known just how
many votes are necessary to change the result the
ballots themselves cannot be identified-they have
no marks Every consdera-
evidence require that the party Offering his evidence
should establish the fact that the BALLOTS gen
une. If the boxes have been
vigorously preserved, the ballots are the best and
highest evidence, but il not, they are not only the
weakest, but the most dangerous evidence. The
Jury might not be satisfied NTH the proof Of identity
and vet be unable 10 ind from the eride7ce that
actual tdmpeTiHg or fraud had beeH committed"
1t is perfectly tnifest that the Court bt low failed
TO find directly upon the issue made by the plead
ngs-were the elect boards guilty Of malconduct
in counting ballots for defendant which were not
cast for him, and in failing TO count ballots for
plsiutif on which his name appeared? The fourth
finding commences: There was no malcOniuct
nor misconduct upon the part of any Of the officers
who conducted such election, and no intentional
or improper tallyng or counting of the
ballots east for the office OF County Clerk, but such
errors were made resulted from mistakes and
oversight, and are indicated by the fol owing state
ments of the vote cast in each precinct" etc.
Subsequently comes statement of the returns
from each precinct and Of the results arrived at by
recount Of the ballots claimed to have been cast in
each precinct.
The Court found there was no male ,nduct nor
II this was a finding on the issue the
Judgment should have been for the defendant. But
the Court failed TO find whether the election board
in any precinct d or did not miscount the ballots
The findings at most suggest the argument that the
election boards must bave been mistaken, because
the recount showed that the boards must have made
ms But, as appears from the findings them
selN results reached by the recount may not
have u correct. And this because the findings
show that in figuring whether the ballots had been
pre- served nvolate, the Court below lost sight OF
the rule applicable actions Of this character, that
the returns to be received true pTimd fdcie,
and the ballots not better dence to overcome
prove that the ballots remain in the condition
as they were when delivered to the proper custody
by the judges Of elections. 1t is not function
to express any opinion as d the fact we say that
the Court below erred in applying the rule to the
burden Of proof.
In Coyeny vs.. Hale (49 Cal 552), was laid down
the rule followed since, that the findings must
be either Of the ultimate facts Of such probatve
facts that the Court is enabled to say that the
ultimate facts necessarily result thtrefrom. In the
cause before the Court below failed to find the
ultimate facts alleged and put in issue by the plead
ings. And the argumentative finding does not sup
port the judgment, since the conclusionE that the
election boards must have made mistakes because
the result Of the recount did not accord with the
turns Of the boards is a non Seqttifur We cannot
decide that the results reached through the recount
are correct II asmuch the Court erred in assum-
ing that the ballots had been undsturbed, because
it not satisfied from the evidence that actual
fraud had been committed.
Judgment reversed and case remanded for a new
trial MCKINSTRY, J.
We concur: