Dubie v. Batani , 97 Mont. 468 ( 1934 )

I agree with what is said in the majority opinion with respect to precinct No. 9. As to precinct No. 11, after hearing evidence by the contestant designed to impeach the election returns, and after hearing evidence by contestee in opposition, the court admitted the ballots in evidence over the objection of contestee. The recount by the court showed a change sufficient to affect the result of the election.

To avoid the consequences of declaring Dubie elected commissioner, the court found that these ballots had been tampered with. My associates think the correct result was reached and do so by holding that the ballots were not admissible, since there was not sufficient evidence to impeach the election returns. It is my opinion that whether there was sufficient evidence to impeach the returns is not properly before us. Contestee has made a number of cross-assignments of error, but none is assigned on the action of the court in overruling the objection to the admission of the ballots in evidence. But if the question be properly before us, it is my view that there is sufficient evidence to warrant the court in receiving the ballots in evidence.

Whether the ballots should have been received in evidence was within the sound discretion of the court, and, unless there has been a clear abuse of discretion, this court should not interfere with its ruling in admitting them. (In re Election Contest forOffice of Burgess of Borough of Ellwood City, 286 Pa. 257,133 A. 379; Williams v. Buchanan, 86 Ark. 259, 110 S.W. 1024; Cole v. Plowhead, 31 Idaho, 228,170 P. 732.)

In my opinion, the only question before us as to precinct No. 11 is whether the court erred in finding that the ballots had been tampered with after they had been counted by the election officers. On this issue the trial court's determination will, of course, not be disturbed unless clearly erroneous. (Bolton v.Clark, 162 Md. 471, 68 N.E. 283; McDonald v. Koths, 63 N.D. 716,249 N.W. 706.) But the purity of the ballots should be presumed (Tschetter v. Ray, 28 S.D. 604, 134 N.W. 796), unless otherwise shown.

Since the majority opinion does not treat the question of the correctness of the court's finding that the ballots in precinct No. 11 were tampered with, no useful purpose would be subserved by its consideration here.

Motion for rehearing denied November 24, 1934.

MR. JUSTICE ANGSTMAN dissenting.