The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-04-19

sonatlng those whose names appeared upoi
Inc registration list, but did not vote, an,
these thirteen votes were properly de
Quoted from the vote of the contestee
Allen. wv
That there was fraud practiced at thi:
poil tnere can De no question, but it doe
not appear from the findings of fact, tina
Inc incumbent or any of the officers con
auctlng the election participated in sucl
fraud or knew Of it, or that the proceed
lngs were so furnished with fraud. neglec
or improper conduct on the part of tn
oincefs that the result Of the ell "tion wa
rendered SO unreliable and fraudulent as I,
make 1t impossible to ascertain the aetna
vote from other evidence in the case.
Nnere the result at poll as shown by
the returns, is false and fraudulent, and il
is impossible to ascertain the actual lega
vote from other evidence in the case, tn,
vote OF such poll must be wholly rejected
I'm this case the court was able, from tn,
testimony, TO purge the poll of the thirteer
fraudulent votes and give effect to the
legal or unimpeached votes cast at thi:
election. We find no error in this. We
also ind that this court as well as the court
below, had jurisdiction under section:
1907 and 3, 765, G. L., 1888.
The ninth finding of fact, as to the vote
at South Cottonwood precinct, and the con
clusIon thereon, presents a more difficult
question for dissemination. The statute
provided for hearing before deputy reg
lstration officer Of objections to the righ
TO vote OF any persons registered.
Secuon 246, page 32l, 1st compiled laws
OF 1888, provides among other things 5
III, upon such hearing, the justice (by
construction deputy registrar), shall find
that the persons so objected to are not
qualified voters, he shall within three days
! prior to the election transmit certified
list of the names of all such unqualified
persons to the judges of election, and such
Judges shall strike such names from the
registry list before the opening of the
polls
Section 3751, compiled laws of Utah,
1885, reads as follows:
:" NO lrregularity or improper conduct
IN the proceedings of the lodges or any of
tnem Is such malcoiduct as avoids an cleo
Elon, unless the irregularity or Improper
conduct is such as to procure The person
whose right to the Office is contested to be
declared elected when he had not received
tne highest number of legal vOtes'
Ihese statutes should be construed with
reference TO the laws of the United States.
applicable to this subject
he trial court took testimony and made
It's findings as above given. 1t appears from
the findings OF TACT from which the con-
testant only appeals, that the names of
fifteen qualified voters OF South Cotton
wood precinct had, prior to the day of cleo
Vlon, been properly upon the registration
llSt OF such preclnCt-Ghat on the morning
OF election these names had been stricken
lfom sucn list by the judges of election, in
accordance with the direction Of the deputy
registration officer of that precinct. after a
notlce and hearing mad been given each of
hnf ra.r, i
deputy registrar was erroneous and ILLEGAL
the said fifteen persons being qualified
voters. mat each of said fifteen persons
presented themselves at the polling place
on Ine day OF election and claimed the right
TO VOTE and rendered the Judges a ballot
containing the name OF the conUertapt
40r the aforesaid Office, together with an
amdaVlt, as required by the act of Com
gress OF March ), 1887, and that they were
refused, lor the reason that their names
nad been stricken from the registration
list. '-
"lhe question presented here is, whether
the judges OF election should nave received.
or, n any event, counted these if leea votes.
SO rendered for the contestant. notwith-
standing their names had been illegally and
enormously striker from tue list OF voters.
no challenge being interposed as provided
III sec, 2ol, VOL l, C. s, 1SSS. 1t is apparent
counted Tor the contestant. the result of the
election would have been different. and the
contestant under the findings, would then
nave received eight majority over the vote
OF Mt Allen, the c0ntestee. The authorj
ties bearing upon this question are some
what uncertain aud conflicting. depeudinr
largely upon the statutes of different states
bearing upon this question, we ind in
Fayne on election, sec. 49g, the following
general proposition:
Honest voters may lose their votes
through the Criminal misconduct of 6is
honest officers OF election. w uile il is we'll
settleQ that the mere neglect to comolv
win directory requirements of the law. or |
Ihe performance or duty iii mistaken
manner, without bad faith or injurious re-
SUITS, VII! not justify the rejection of an !
entre poll, II IS equally well settled that
When the proceedings ara so furnished by |
rahuuleht, Negligent or improper conduct |
lh the part OF the officers That the result of |
me election is rendered unreliable. the en- |
IRE returns viii be rejected and the parties |
ell 10 make such proof as they may OF the |
votes legally cast for them But when !
raud on the part Of the officers of election
S established, the poll will not be rejected
lnless II shall prove to be impossible 60
purge 1t OF the fraud.
In other words, the illegal, fraudulent
~" sa-iiClSAG HUMBER Oh Quallhed
lectOf IN a precinct, W5i1n, if tnev mad
,oteo, would have changed the result of
ne electlon, was held to void the election
4 that precinct.
Il am unable 10 see the difference in the
egfee OF fraud OR misconduct presented
y case where the election officers iuer
lily ana Wrongfuliy strike tue name of a
uahued voter from the registry list, or in
Vhlcn they Illegally and frauduiantlv place
ne names OF illegal voters upon the regis
~ nsG. In the latter case il is held tn he !
1alconduct in the officers.
W nile disregard of q mandatory pro-
lSlon IN statute as to the conduct Of an
lection viii ordinarily void an election. il
) generally We'll settled that neglect or dis
egard OF directory provision of a statute
eslgned 10 prevent fraudulent voting fol-
owed by actual fraud of that Character
ulhclehl IN extent to throw doubt on the
rue result OF the election, is ground for re-
ectlng the entire vote of precinct, proyid
lg there were no means of purping tha
oil. PUi Si''S Un0
"O1lcers OF election are like all ether per ;
ous, presumed to know The law, and their
ellberate neglect to do their duty, or their
legal. wrongful and fraudulent perform
nee OF the duty imposed upon them. TO
7GlsLer and permit all persons having such
TO vote, calls for explanations
!. Cnelr part. In tais case 1t is conceded
contestee's counsel that no evidence of
lstlhcatlon was offered before the conrt ,
Glow TO explain or Justify the acts of the :
ecuon ofhcers. This omission cast sus-
clon upon their testimony. and with the !
stimony before the court was presumably
lfhclent prima facie to make Oh a case Of
.roneo9s ana Illegal conduct on thsir part,
found by the court trial. G
The case of Russell vs.. Mcdowell Cali
'rnla) reported in % Pac. rep. 1888, fully
lstalns this doctrine, and also gives con
ractlon to sec 315l, Comp. Laws. 1883.
men is similar to the California statute .
The object Of the registry law is to pre- d