The record-union., 1895-07-13
CONCERNING BALLOTS AND VOTES.
Important Decision by the Supreme
Court.
Election Day in Arcadia Precinct
Siskiyou County-Ugly Points
Decided.

An interesting opinion was handed
down by the Supreme Court yesterday,
containing some valuable information
concerning the conduct of elections that
will no doubt be frequently referred to in
future contests between candidates.
The opinion is in the case Of George A.
Tebbe against Clarence s. Smith, candi-
dates for the office of Superintendent oi
Schools of Siskiyou County.
Smith was declared elected by a plu-
rality of one vote. Tebbe made the con-
test The result of the judicial count was
to increase Tebbes total vote by three,
thereby giving him the Office by plural
ity of two. Smith thereupon appealed to
the Supreme Court, and by the decision
to-day the Justices threw out the votes of
two whole precincts in which Tebbe had
majority, thereby giving the office to
Smith.
The first point urged by the appellant
was that the court erred in overruling his
objection to receiving the ballots in evil
dence. The evidence showed that when
they were received by the County Clerk
the sealing wax was broken and that
they were then put in gunny sacks aud
sealed. They were watched In the day
time and locked up in the Clerks Office
at night
The Supreme Court found that not
withstanding these circumstances all rea-
sonable precautions to preserve the In
tegrity of the ballots had been taken.
The Justices declared that whore mode
of preservation Is enjOined by the statute.
proof must be made OF a substantial COM
pliance with the requirements OF that
mode. But such requirements are con-
strued as directory merely, the object
looked to being the preservation lnviolate
of the ballots. When substantial COM
pliance with the provisions of the statute
is shown the burden of proof shifts to
the contestee of esIa ablishing the fact that
the ballots had been tampered with or
that they had been exposed under such
circumstances that a violation of them
might have taken place. Such proof was
not made.
Objection was made to nine ballots in
which the cross was marked, not in the
square at the right OF the candidate s
name, but in the marginal space TO the
right, between the name and the political
designation. The Supreme Court held
that this was a compliance with the law,
which is merely directory and not man
datOry in this respect.
The votes cast in Lake Precinct were
those which the court declared should
not have been counted. Justice Henshaw,
who wrote the opinion, declared that the
account OF the election from this precinct
was like "a breeze from Arcadia" He
quoted from the testimony to show in
what free and easy manner the grangers
of Lake conducted the election. They
opened the polls at 10 O'Clock, instead of
at sunrise. and the election officers ad
jOurned for dinner to neighboring farm
house. taking the ballot-boX with them.
Judge Henshaw declared that the law
fixing the hour for the opening and
closing Of the polls. and requiring the
ballot-box to be kept at the polling place.
was mandatory, and failure TO follow
mandatory provisions for the holding of
an election vitiated it. The Justices were
quite willing to believe that the miscon-
duct OF the officers was the result OF ig-
norance. and that no injury was intended,
but they believed that any other interpre-
tation of the law would add great perils
to the safe conduct of elections, which are
already harassed by dangers enough"
The court also decided that the ballots
of Ceclville precinct should not have
been counted. Upon all the ballots ap-
peared in the blank space under the office
of Justice of the Peace sc. q. Brown,
Republican" The evidence disclosed
that this writing had been all done by the
same person; and further, that but one
person III Lu6 pT6ClUCL lawfully a5SlSL6U
in the marking of his ballot under the
provisions of the code. The presumption
must be that the officers put legal ballots
into the hands Of the electors and that tho
writing was afterward put upon them.
From the evidence 1t appeared that the
ballot of the voter lawfully assisted
should alone have been counted. 1t was
therefore held that the other ballots
should not have been counted. The
Judgment was therefore reversed.
Justices Temple, Van Fleet and Harri-
son concurred with Henshaw. Justice
Mcfarland wrote an opinion conourring
in the judgment of reversal and in the
opinion OF Justice Henshaw, except as to
the Cecilville precinct. He said that if
there was Distinguishing mark on a
ballot when it was voted the ballot should
not be counted, but if the mark was
placed on the ballot after it had been
properly voted then at the trial of con-
test it should be counted. "If at the trial
of an election contest" he asked, "a
mark ballot is found and there is no
evidence as to the time of the marking,
must the court presume that it was
mark before it was voted p" He said
that such rule would afford an evil
disposed person who got temporary ac-
cess to the ballots after they had been
counted an easy and safe method of
changing the result in close contest by
simply marking, and thus invalidating,
a few ballots in which the votes were for
the prevailing party. He declared that
the rule contended for would be like clos