The Idaho recorder. [volume] (Salmon City, Idaho) 1886-1927, 1921-12-23
VIEL-SUMMERS CASE
NEAR TO WIND-UP

Summers in the election contest for
Viel VS.. Summers finally has been FL
ed and the case is now we'll on toward
adjudication in the Supreme court. As
The Recorder published the main
points relied upon by the prosecution
of this contest in behalf of Viel, il is
right that the other side would be
heard also, for after all the court of
| final decision in this country is the
court of well considered public opin-
ion, generally expressed at the ballot
box. Senator Whitcomb as counsel
for Summers prepared that side of
the famous controversy, his brief in
part reciting:-
Under the allegations contained in
the Complaint, this contest is based
exclusively on the grounds stated in
Section 727i, subdivision 1, Of the
Compiled Statutes of Idaho, namely:
malconduct in wrongfully and unlaw-
fully counting votes in Depot and
other precincts.
We do not thing the case calls for
any argument regarding the decision
Of the courts in excluding the ballots
of Junction Precinct. The decision of
the court should be final, and was full
~ justified by the facts proven, name
ly:
(a) Ballot box was left without
lawful keeper from two TO three
o'clock a. m, until seven-thirty or
eight o'clock a. m. of the same day,
following the day of the election.
tb) A Mr.. Friday, Democrat, es-
pecially interested in the result of the
election, had exclusive access TO the
l hnx -
be that others had like access
through the back door Of the polling
place.
| tc) Flimsy lock on ballot box.
| td) Box and keys delivered TO Mr..
Free, a Democratic appoirtee as Dep
uty Sheriff, who was discharged from
office about January 10th. No elec-
tion officer or other officer Of Lemhi
county was in charge of ballots from
that time until February 22nd, when
another Democratic appointee, under
the Sheriffs Office, Mr.. Ford, was in
charge of the box and keys thereto.
81 Box was not properly kept af-
ter delivery to Sheriff under order of
court. Delivery TO Sheriff was illegal.
% Bets were made VIGOROUSLY on
the election TO the office in question,
which fact existed as motive for
tampcring with the ballot boxes.
! (g) The ballot boxes were unseal-
ed, contrary to the provisions Of law
We will now confine our argument
\ 10 the facts AMI law applicable there
to, relating TO the election in Depot
| Precinct.
At the outset, we wish TO call the
courts attention to the fact that the
transcript will disclose that the order
pursued in presenting this feature Of
the case was somewhat out of the or
dinary, and, had the order of proof
been different, the ballots would, in
all probability, never have been in
spected by the presiding Judge.
The transcript will disclose that af-
ter a prima facie showing had been
made 10 the effect that the ballot
/ boxes, so far as kncwn, had not been
| tampered with, the court, over De-
PENDANTS objection. ordered and di-
rected the ballot boxes to be opened
for inspection, and Immediately
thereafter proceeded 10 count and in
speet the ballots, without opportunity
being first offered or given 70 the de-
Tense to show by direct evidence that
opportunity had been given 10 flag
| rantly tampar with the contents of
the boxes, and that the counting of
he ballots by the election judges had
lpeen done correctly and honestly. This
proof was not submitted, except as
disclosed By cross-examination, until
the ballots had been first inspected by
the. presiding justice.
As the allegations OF the contest
are confined to the wrongful acts of
the election judges, their testimony
! should have first been submitted be-
fore an inspection of the ballots was
ordered, but we submit that the find
ings and the decree of the court cor
rected the error.
We wish further 10 call the atten.
tion of this court to the fact that the
contestant, at no time DUNG the pro-
gress Of this trial, ever offered to in
troduee in evidence the ballots OF De-
pot precinct. and that said ballots
were not at any time introduced as
evidence. The complete record relat-
ing to this feature of the case Is found
in II. 324 and 32T, at PIP. III and 112,
! where II appears that opposing coun-
| sci asked the court To open the bal
lot boxes for the purpose Of inspect
ing the ballots only. This the court
did, and determined that the ballots
| we're unworthy Of credit. Their al
| mission as evidence was never asked
for or granted by the court. In (.
/ sos the record shows that a motion
was made by the attorney for the De-
fendant to strike all the ballots from
Depot precinct as evidence in the
case, but such motion was entirely
premature and unnecessary, and was
never passed. upon by the Judge, as
said ballots were not before the court
as evidence in the case. (See page IL
OF Appellants Brief.)
The findings and judgment Of the
court in effect rejects the ballots as
/ evidence in the case, and, in view Of
all the evidence, the decision of the
court is final. We think the rights of
Appellant terminate here, and, for
reasons stated, the judgment of the