Russell v. State ex rel. Nicholson , 11 Kan. 308 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

This is a contest over a county-seat election. The contest arose in the county of Wilson. The county commissioners, canvassing the returns, declared the majority to be in favor of Fredonia. Upon this contest the district court decided in favor of Neodesha. To reverse that decision this proceeding in error has been instituted. The main question is concerning' the ‘vote of Fredonia precinct. With that counted, Fredonia received 230 majority. With that rejected, Neodesha had 316 majority. The poll-books of that precinct showed 546 votes, all for Fredonia. The election was conducted in a small room, with only one window in front, and that boarded up to the upper sash. The judges refused admittance to any friends of Neodesha during the time the votes were received. The polls were closed at noon, and the ballot-box carried away by two of the judges. An attempted challenge was met by threats of violence. After the closing of the polls the ballot-box was removed to another place, and the votes counted there. There was evidence showing' that one of the judges and one of the clerks prepared the poll-books the night before the election, and wrote in the list of voters a large number of fictitious names. The original poll-books are brought up with the record, and it is evident at a moment’s glance that the names were not all written at the same time. They appear in different colored ink and handwriting, and those of like ink and handwriting not together. They alternate, as it were, now one of one color, the next of a different, the third like the first, and so on. And finally, it was admitted that 127 of these fictitious names were so written on the poll-books, and 127 spurious ballots deposited in the ballot-box prior to the opening of the polls. The district court held, from this proved and admitted fraud, that that prima facie character which attaches to the poll-books as evidence of the results of an election, and the number of votes cast, was lost and destroyed, and, there being no evidence aliunde, that there was no proof of any votes having been cast in that precinct. Was this error? It has been well said, “that any irregularity in conducting an election which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or. cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election.” Cooley’s Const. Lim., 618, and cases cited in note; We have followed that rule in this state: Gilleland v. Schuyler, 9 Kas., 569; Morris v. Vanlaningham, supra, 269. The misconduct of the officer should not deprive the legal elector of his vote, nor the candidate of the benefit of that vote. He alone should suffer the penalty of his own misconduct, and be punished in a direct proceeding therefor. With the rule thus enunciated, and so well supported upon both principle and authority, we are entirely content, and see no reason to change or limit its force. But does the decision of the district court conflict with this rule? We think not. . The poll-books do not constitute the election. They are simply evidence of what was done, and but prima facie at that. You can always in a contest go back of them and inquire into the facts. ' They are evidence, because they are the records of official acts, made by certain officers of the law, who are presumed to have followed the law, and honestly discharged their duties under it. The possibility of error and mistake attaches to all official acts and records, yet such possibility does not destroy the value of the records as evidence of the facts. Probably also the existence of error and mistake, if it resulted from accident or inadvertence, would not affect the credibility of the record outside of such error and mistake. But when it appears that the record was manufactured in fraud, and the evidence a lie, what rights can be established by it ? .The records of a court import absolute verity, and the parties to a suit are concluded by its judgment. Yet if it be shown that'judge and clerk have fraudulently combined and entered up a false judgment, its rottenness destroys it altogether. It Concludes nobody. No rights can rest upon it. Here the record purports to show that 546 voters recorded their choice of Fredonia as the county-seat. Outside of that record there is no evidence except the general statements of witnesses, that an election was held that day, and that votes were received at such a place. No testimony showing how many votes were cast, or that those voting were legal voters. The case rests upon the records of the poll-books. Now comes the contestant and says that the record is a lie, and proves that 127 of the names so recorded as the names of legal voters are fictitious, and that 127 spurious ballots were cast into the ballot-box. In other words, he proves absolutely that nearly one-fourth of this record is false. And this falsehood cannot have been the result of ignorance or mistake. It is not possible that this could have happened without the knowledge, consent, and connivance of both the clerks, and some at least if not all of the judges. Surely, there was criminal culpability if not actual, intentional wrongdoing on the part of all the officers of that election board. But, says the contestee, the whole record is not shown to be false. Reject the 127 votes proved to have been spurious, and accept the balance not thus proven. In other words, accept all of the record not proved untrue. If the falsehood resulted from mere mistake there would be great force in this demand. So also if the falsehood resulted from the fraud or wrongdoing of others than the board. But where the recording officers are proved to have knowingly made a largely false and fraudulent record, how can we place reliance on any of the record ? Falsus in wno, falsus in omnibus. Hoes the written testimony of a witness stand any higher than the oral ? If these five election officers were on the witness stand and testified that 546 legal voters cast their votes on that day for Fredonia and it should afterward appear that they knowingly and willfully testified falsely in reference to T27 of those votes, and the number of votes was material, would not the district court have been compelled to reject their entire testimony? Campbell v. The State, 3 Kas., 488. Yet this was all that was done in this case. It doubtless happens that some legal voters are by this decision deprived of the benefit of their votes. Perhaps there were honest votes cast, enough to have given the majority to Fredonia. A large majority of the citizens of Fredonia are honest men, were ignorant of the fraud which was being perpetrated, and are doubtless as much grieved as we at this terrible trespass on the purity of the ballot-box. May this example preach its lesson, not alone to them, but equally to every citizen of the state. They who in Borne watched and kept the sacred fire were vestal virgins. Equally pure should they be who watch and guard that which is far more to us than mystic altar fires.

The judgment of the district court will be affirmed.

All the Justices concurring.