| Show DECIDED AT LAST The Opinion in the Ferguson Allen Case 3L ON ELECTION FRAUDS The Rotten Binsham Poll and the Rejected Totes at South Cottonwood Not Sufficient to Oust Allen At the former session of the supreme t court it i was announced that the case of Ferguson vs Allen involving the title of the ofce of county clerk 1 was decided in L favor of the defendant and that the opinion would be I handed down later Tho opinion was delivered by dolvered Judge Miner yesterday I and Is as follows defendant The plaintiff FerP s Ferguson and the t resn dti > Clarence E Allen were each respectively candidates for the office of county clerk of the county of Salt Lake Territory of Utah at the August election in 1S20 and the only candidates therefor At the canvas of the votes by the county canvassers of the precinct returns that body adjudged that Defendant Allen had I received a majority of lifteen votes the fftecn and said plaintiff the defendant having having received recived 3i40 votes 3755 votes and a certificate of clontinn w T cuiuingiy given to tho defendant Allen who is now in possession of the office The plaintiff withiu the ofce by law filed tme required fled his notice of contest and now claims contest c that there are two distinct errors in that computation that is HIIn the Bingham precinct ing places were provided three poll wer by the Utah com mission but no division was had of the registration list the whole registration was left registraton with the judges of each poll No 3 in such precinct was established poll that up the cafion in the mountains establshed ac commodation of the voters at the Brook lyn mine At this poll 41 ballots at this election 39 pOl the contesteo Wee and cast 2 for tho contestant Thirteen of tho39 votes cast for Contestee Allen were proved to be cast fraudulently by persons not entitled to vote and were entited rejected by the trial court thus leaving Allens vote in Alens ot this pro cinct G It is now claimed by the contestant that the court erred in not rejecting the entire vote polled at this precinct for the reason that the whole of the poll was proven fraudulent and prorel no legal votes were shown to have been cast The contestant also claims that he is en titled to have counted in his favor fifteen votes in the South Cottonwood ffeen Sout precinct i which were not returned by the judges of election and claims that the facts voters lug these whose fifteen voters are that fifteen concern legal names appeared the upon registration list who were entiled to vote were wrongfully stricken from the regis tration selves list by tue judges of election leg them I so as to prevent their vote Tnat the said fifteen voters ffeen however tried to vote so far as they were able to do so and that each of them tendered a ballot to gether with an affidavit balot af sworn to in due form by each of said persons offering to vote containing the oath required the by act of Congress o March 3rd ISbT known as the EdmundsTucker law and that the judges refused to put their ballots into the box Each of the voters caused said bal caused lots to be preserved and his name written upon it identified and brouoht intn M < so that the ballot was cast by each ot the fifteen voters so far as it was in the power of the voter to cast it Each of these votes contained the name of the contestant Counting these fifteen vote he would have a majority over the contesteee of votes eight votesContestant Contestant claims First that the court erred in not throwing out the of the first poll of the our entire ballot oa frst pol Bingham precinct and deducting all the thirtynine votes from Allens majority for Alens the reason that the whole said polo was proven to be fraud ulent and no legal votes were shown to have been cast SecondThe court erred in not allowing the fifteen votes which it determined to have from been the ballot wrongfully box in South and illegally Cottonwood kept precinct and found to have been by the i votes tendered for Fergus Ferguson to be counted for him The evidence upon which f this case was tried in the court below is not brought be fore this court by the record and the only question before this t court on the recora is whether or not the findings of fuel fndings by the lower ICt court justify the conclusions and judgment of the court below or whether other and different conclusions diferent of law should have been reached upon the facts as found Uyou these points the court below found among others the following facts folowinr SThat at said poll No3 in Bingham precinct said thirteen ballots were cast by persons who were not qualified electors of said precinct but who fraudulently fraudulenty per sonated the names oLpersons whose names appeared upon the registration list who were not present to vote That each of said thirteen ballots were cast counted and returned for the incumoent incumtent Allen for said ofilco of county clerk contestee UThatin the precinct of South Cotton wood in said county fifteen different per sons presented themselves at the place on the day of election and claimed polling the right t vote and each rnnrt rM th judges of election a ballot for n uc balot contestant for said office of clerk of the count court and with said ballot tendered balot an affidavit sworn to before a justice of the peace by the persons so offering to ofering vote waich afli Whicl davit contained the oath required by the EdmundsTucker law and the ballot of balot each said persons was refused by the judges j for the reused i reason that the th1 name of none of said persons was upon the of said precinct registry That the names of each of the fifteen peasons had prior to the said day of fftcn tion been upon the registration list of said precinct but each of said names had been by the judges of election stricken from said list before the opening of the polls in accordance with the pols witl directions in writing from the deputy registration officer of said precinct That the right of each of said oif teen persons to vote at said election had been ojcctcd to by a qualified voter in wnlinsr before said deputy registrar and a hearing had been had upon each of said persons before said deputy registrar and said deputy registrar had determined I such hearing that the names of each of said on persons should be stricken from the regis tration list of said precinct which said de I termination was erroneous and illegal the said fifteen persons being qualified voters but was duly certified to said certifed judges and I the vote of each of said persons was re I fused by said judges of election for the reason that the name nf cacn i nau i r J been so stricken from the registration list Hst Upon the foregoing facts as found the trial court found therefrom the following conclusions of law folowinl That to the majority of fifteenfor the incumbent as shown upon the face of the canvass and return there should be added stx votes on account of the matters sot out in the fourth fifth and sixth paragraphs of the foregoing findings of facts and that from the majority for the incumbent tlat as thus increased should be deducted fourteen votes on account of the matters stated in mattrs the third and eighth paragraphs stted said findings leaving the incumbent a clear ma jority of seven votes out of all the legal votes cast for said office at said election That the ballots offered to be cast for con testant in South Cottonwood precinct as re ferred to in the ninth paragraph of the said Undines 01 fact and which were rejected by the judges j and were not in fact cast cannot be counted nor can any of them be theb counted nor made available to the contest I ant in this proceeding And upon contest foregoing facts and conclusions it is ad judged and determined by tho court that j the contestants complaint be dismissed and that he takenothing by this proceed ing that the incumbent was legally elected to said office of clerk of the county court of said Salt Lake county and his title and right to said office is confirmed tite The above findings include fedlngs incudeo much only as may be material in this discussion On examination of the eighth finding of fact we are unable to discover that thare is fact error of the court in its findings of law so far as they applY the third poll of Bing ham precinct I is apparent from the findings that thirteen ballots were cast fraudulently by persons who Were not Lflualifled elsctora of that precinct fey j2 er 1 sonating those whose names appeared upon appcared the registration list but did registraton lst not vote and these thirteen votes were properly de ducted from the vote of the contestee Allen That there was fraud practiced at this practced poll there can be no question but it does not appear from the findings of fact that the incumbent or any of the officers con ducting the election participated in such fraud or knew of it or that the proceed ings were so tarnished with fraud neglect or improper conduct on the part of the officers that the result of the ehtlon was rendered so unreliable and farudulent as to make it impossible to ascertain the actual vote from other evidence in the case actua Where the result at a poll as shown by the returns is false and fraudulent and it fraudulent is impossible to ascertain the actual legal vote from other evidence In the case the vote of such poll must be wholly rejected In this case the court a able from the testimony to purge the poll of the thirteen fraudulent votes and give effect to the legal or unimpeached votes cast at this election We find no error in this Wo also find that this court as well as tho court below had jurisdiction under sections 3737 and 3765 C L 1888 sectons The ninth finding fact as to the vote at South Cottonwood precinct and the conclusion con-clusion thereon presents a more difficult question for determination The statute i provided for a hearing before a deputy reg istration officer of objections to the right to vote of any persons registered Section 240 page 3211st compiled laws of 18S8 provides among other things I upon such hearing the justice by I 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 a certified list of the names of all such unqualified persons to the judges of election nn jl siir > h judges shall strike such naoies from the registry list before the opening of the pollsSection Section 3751 compiled laws of Utah 18SS reads as follows I No irregiilarity or improper conduct in the proceedings of the jodges or any of them is such uialcoiiduct as avoids an elec tion unless the irregularity or improper i conduct is such as to procure the person whose right to the office is contested to be declared elected when he had not received the highest number of legal votes These statutes should bo construed with reference to the laws of the United States applicable to this subject The trial court took testimony and made testmony its findings as above given I appears from the Bindings of fact from which the con testant only appeals that the names of fifteen qualified voters of South Cottonwood Cotton-wood precinct had prior to the day of elec tion been properly upon the registration list of such precinctthat on the morning of election these names had been stricken from such list by the judges of election in accordance with the direction of the deputy registration officer of that precinct after a notice and hearing had been given each of them That such determination of the deputy registrar was erroneous and illegal the said fifteen persons being qualified voters That each of said fifteen persons presented themselves at tho polling place on the day of election and claimed the right to vote and tendered the judges a ballot containing the name of the coutertunt for the aforesaid office together cOltertalt with an affidavit as required by the act of Congress Con-gress of March 3 lSS7 and that they were refused for the reason that their names had been stricken from the registration list tla I l5t listThe I The question presented hero is whether the judges of election should have received or in any event counted these fifteen votes so tendered for the contestant notwith standing their names had been illegally and erroneously strikers from tuo list of voters i Ipo challenge being interposed as provided in sec 251 VOl 1 C 8 ISisS It is i sinnnront that if these votes had been received > or I counted for the contestant the result of the election would have been different and the contestant under the findings would then have f received eight majority over tao vote of Mr Allen the contestoe The authori ties bearing upon this question are some what uncertain and conflicting depending cOltictn largely upon the statutes of different states Bearing upon this question we find in Payne on election sec 4JU the following general proposition folowing Honest voters may lcse their votes through the criminal misconduct of dis honest officers of oieciiou IV nile it is well settled that the mere neglect to comply I with directory requirements of the law or the performance or duty in a mistaken manner without bad faith or injurious re suits will not justify the rejection of an entire poll it is equally well settled that when the proceedings are ao tarnished by fraudulent negligent or improper conduct on the part of the officers tnat tim result of tlut tIe the election is rendered unreliable the en tire returns will be rejected and the parties I left to make such proof as taey may of the a votes legally cast fur them But when I fraud on the part of the officers of election is established the poll will not bs rejected I unless i shall prove to be impossible to purge it of the fraud In other words the illegal fraudulent rejection ofa sufficient number of qualified I elector in a precinct wbijti i tney nail I voted would have changed tho lavo result of i the election was held to void the election I ia that precinct 1 am unable to see the difference in the degree of fraud or misconduct presented I by a case where the election officers illeg ally and wrongfully strike the name of a qualified voter from the registry list or in which they illegally and fraudulantly place the names of illegal voters upon the regis try list In the latter case it is held regis 3 malconduct in the officers While a disregard of a mandatory pro vision in a statute as to the conduct of an election will ordinarily void an election it is generally well settled that neglect ordis regard of a directory provision of a statute designed to prevent fradulent voting fol lowed by actual fraud of that character sufficient in extent to throw doubt on the true result of the election is ground for re jecting tho entire vote of a precinct provid ing there were no means of purging tho pollOfficers Officers election are like all other per sons presumed to know tue law and their deliberate neglect to do their duty or their illegal wrongful and fraudulent perform ance of the duty I imposed upon them to resistor and permit all persons having such qualifications to vote calls for explanations on their part In this case It is conceded by contcsteos counsel that no evidence of justification was offered before the court below to explain or justify the acts of tEe election officers This ofcels omission cast sus picion upon their testimony and with the testimony before the court was sufficientprirna facie to make presumably a case of erroneous and illegal conduct on their part as lound by the court trial The case of Russell vs McDowall Cali McDowal fornia reported in J3 Pac rep 163 Cal fulJT sustains thIs doctrine and also gives construction con-struction to sec 3751 Comp Laws 1SSS which is similar to the California statute The objoct of the registry law is to pre serve the purity of the ballot box and to guard against abuses to the elective fran i I chise and not to prevent any qualified elec tor from voting or unnecessarily to hinder lor impair his privilege This right should not be impaired by the regulation I must be a regulation not a destruction of tho rightSo So it has been held that the exclusion of legal voters through error in judgment but not fraud will not defeat an election be cause it cannot be known with certainty afterwards how the excluded electors would have voted and it would be dangereus to receive und rely upon the voters subse quent statement as to their intention when unfortunately such Intention was in effectually expressed after it is ascertained precisely what effect their votes would nave upon the result I however the inspectors of election shall exclude legal voters not because of honest error in judgment but wilfnliv uy ni I corruptly and to an extent that effects the result or if legal voters are intimidated and i prevented from voting or for any other reasons the electors have not had oppor tunity for the expression of their senti ment through the Dallot box the election electon should be set aside altogether as having failed in the purpose for which it was called calledA A proper rule in such cases is that any irregularity in conducting an election which does not deprive a qualified elector of his vote or admit a disqualified person to vote or cast uncertainty on the result should be overlooked in trying title to an officeThat That no legal voter should be deprived of that privilege by any illegal deprved election authorities is a fundamental principle prin-ciple of law but ia i order for such voter to avail himself of that privilege he must conform to such reasonable ruIn aa are prescribed bylaw he must leave nothing undone on his part that he should do in order to bring himself within this rule he must sea tbat his name is on the registration registra-tion list and otherwise entitled to vote When Tie has done this he has done all that the statute required in this territory In this case it appears thatench of these fifteen electors had their names properly enroled that they were legal voters and entitled to vote at this election that the deputy register without any n uumuniy 01 law wnatever erroneously errone-ously and illegally ordered their names stricken from the lists of qualified electors on the morning of the election that each of them went and tendered a vote for the contestant with an affidavit of qualifications as legal voters They wero refused because their names had been ille ie gaily and erroneously stricken from tho list of voters by order of the deputy regis trar This illegal act if it was such upon the part of the registration officer cannot be justified upon any pretext whatever The rights and wishes of all people are too sacred to be cast aside and nullified by the illegal and wrongful acts of the servants ser-vants no matter under what guise or pre tense such acts aro sought to be justified This right is a fundamental right All other rights civil and political depend Al the free exercise of this one and any ma I terial impairment of it is to that extent a subversion of our political system These registration and election officers act ministerially or at most quasijudicially and their act may properly be reviewed and questioned in a proceeding to contest or try tho title to any office made elective by the laws of the territory of terrtory The acts ofthe legislature herein quoted can properly bo considered in connection with the EdmundsTucker as applicable to this territory in the applcable tors and conduct of f elections ami shmihl ho so construed as to give every man who has that right an opportunity to register and vote and to have that vote honestly counted Section nine of the EdmundsTucker law declares vacant all registration and elec lion offices of every description in the territory and each and every duty re lating to the registration of votes and conduct of elections receiving and registering votes and tho canvassing of the same etc shall until other provisions be made by the legislature of the territory as hereinafter provided be performed by and under tho existing laws of the United States and of said territory by proper perSons per-sons appointed by the Utah commission and no person shall be excluded from the polls who is otherwise eligible to vote on account of any opinion etc i nor shall they refuse to count any such vote on account of the j opinion or the persons casting the same on 1 the subject of polygamy The construction of this statute may be found in McCary Am Law of El Sec 1 6 Am fcEng Enc of Law p 2ix2430 Murphy vs Ramsey 114 U S 30 and Buchanan vs Manny 2 Ellis 2S7 Section 2J07 of the Revised Statutes re lied upon by counsel for the contestant might bo a potent factor in the determina tion of this question had not the Supreme court of the United States declared it unconstitutional un-constitutional in2 U S p 214 U S vs Reese et alI al-I am satisfied that no case can be found in the books which presents a stronger ap peal in behalf justice to an elector than is presented by the record in this case Yet the law seems to be settled that unless the ballot is actually cast it cannot be counted a local election contest Judge Campbell Campbel in his opinion in People vs Cicot 1 Mich 311 says There is no case so far as I have been able to discover under any sys tem of voting by closed ballot which has I held that any account can be taken of re jected votes in a suit to try title for office i Judge Cooley in his work on Constitutional Constitu-tional Limitations pp 025 G7 savs We have seen that no evidence is admissible as to how parties intended to vote who were wrongfully prevented or excluded from so doing such a case is one of many without a remedy so fal as candidaies are concerned con-cerned And in such cases the injured parties have their right of action against the registration officers who violate their oath and maliciously or corruptly striKe the name of a legal voter from the registra tion list or maliciously or corruptly cor-ruptly refuse to place such such names upon the register and such I parties may be made liable to a civil action in damages or prosecuted criminally for such corrupt wilful and malicious acts Asbby vs White 2nd Ld Rapn S33 Gil lipio vs Palmer 20 Wis 5440 Am and Eng Enc of liar pages 305303443 Har desty vs Tef187 Am Dec 5S4 Canfiold vs Bullock 18 B Mon K Y 4940J3 By section 3572 compiled laws of 1SSS it is enacted that when any election held electon for an office exercised in and for a county is contested onaccount of any malconduct on the of the board part of judges of any precinct election or any member thereof unless the rejection of the vote of such precinct or precincts would change the result re-sult as to ouch office in the remaining vote of county I is contended with much reason that under the provisions of these statutes no vote can be counted for a candidate that is not actually cast for him while the polls are open and that the power of this ourt is limited tb the rejection of such fraudu lent votes as were actually cast or to the rejection of the otP of precincts on account ac-count of fraud in the officers conducting ofcerR the election in cases where it appears that the rejection of the vote of such precinct would change the result as to such office in the remaining vote of the county The full vote of South Cottonwood precinct is not reported or found by the trial court therefore we are unable to determine whether or not the rejection of the entire vote of South Cottonwood precinct would change the result of the election for this office therefore Upon the whole record we find no errors The findings and judgment of the court below are nfiirmed with costs We concur in the result ZANE C J BhACKUUHX J J L Rawlings for the plaintiff gave notice of an appeal to the supreme court of the United States |
