Dill vs. Shurtleff, 183 Ill. 440, 56 N. E. 164; Patton vs. * case there is neither any contention that any of the electors filing to swear to the affidavits were not otherwise qualified to vote at such election, nor that they did not make an honest though ineffectual effort to participate therein, so as to have their votes counted." We are therefore of opinion that the act complained of was not only in violation of a mandatory but probably also of a criminal statute and for that reason said 686 votes should not have been counted for either of the towns, but such of them as were cast in an honest but ineffectual effort to vote should be considered for the purpose of making up the total number of votes cast in that election Are we correct in this conclusion that they should be considered as votes cast? It would serve no good purpose to recite in detail the evidence adduced by counsel for Ryan in support of their allegations of fraud on the part of the election officials and the voters of the Waurika precinct. It is sufficient to say that proof that Waurika, in mass meeting assembled, appointed an executive committee, one of whom served as judge of election at the Waurika box and testified that he had been a participant in at least twenty county fights; that said town raised $13,000.00 by popular subscription to be expended by said committee in the county seat campaign; that all evidence concerning its expenditure was purposely destroyed, or no account kept; that said executive committee and no witness on the stand could or would tell how any considerable portion of said sum was expended; that partisans of Waurika, just prior to the election, caused a large number of negroes to be detained in the town for the purpose of voting them, said committees furnishing them free board and amusement; that three different gangs of transient railroad laborers were brought from a distance and voted; that of the 115 men employed on the ditch in the town and voted, it is impossible to tell how many of them voted legally, or how many were paid $2.00 by one of said committee, ostensibly for their day's work, but really for their vote; that all known voters thus paid were on written order given to each. only one of which was introduced in evilence and was No. 203; that the challenger. watcher and poll book holder' were excluded from the polls by the election inspector, contrary to law: that the voters were rushed through the voting booth in blocks of five and at an unusual rate of speed; that partisans of Waurika with large sums of money, a part of the popular subscription, with the knowledge and consent of the executive committee, visited other voting precincts in the county on election day and spent it in influencing votes for Waurika; was ample to sustain the finding of the referee that it was impossible to tell how much money was spent by Waurika in furthering her candidacy for the county seat, for legitimate and how much for illegitimate purposes, and that the fraud disclosed was sufficient to destroy the value of the return as evidence and justified the referee in so holding, in effect, and in setting the same aside and proceeding to purge the poll. There is nothing in the contention of counsel for Ryan that when the referee found, in effect, that there was sufficient fraud to destroy the value of the returns as evidence, he should have thrown out the box. The rule is well stated in 10 Am. & Eng. Enc. of Law 774, thus: ** * * "When fraud does not invalidate the legal votes cast, but by presumption of the correctness of the returns, it makes it necessary that any person who claims any benefit from the vote shall prove them; It is only where no proof is offered, and the frauds are of such a character that the correct vote cannot be determined, that the returns of the precinct will be rejected." Or, as stated by Judge McCrary in his work on Elections: "Sec. 46. Although the return of the vote of a given precinct, made in due form, and signed by the proper officers, is the best evidence as to the state of the vote, yet it may be impeached, on the ground of fraud or misconduct on the part of the officers of the election themselves, or on the part of others. In election cases, however, before a return can be set aside, there must be proof that the proceedings in the conduct of the election, or in the return of the vote, were so tainted with fraud that the truth cannot be deducted from the returns. The rule is thus stated in Howard vs. Cooper, (1 Bartlett, p 275): 'When the result of any precinct has been shown to be so tainted with fraud that the truth cannot be deducible therefrom, then it should never be permitted to form a part of the canvass. The precedents, as well as the evident requirements of truth, not only sanction, but call for, the rejection of the entire poll, when stamped with the characteristics here shown.' Sec. 437. The rule just stated needs the following explanation, in order that it may be correctly understood. The committee no doubt meant to say that if the result, as shown by the returns, is tainted with fraud, the returns are to be rejected as false and worthless. But as we have elsewhere seen, the question whether the entire vote of the precinct shall be rejected for fraud, depneds upon another question, viz: Whether from any evidence it is possible to ascertain the true result. The returns may be rejected as fraudulent, and yet the true vote may be ascertained, and where it can be ascertained, independently of the rejected returns, the law requires that it be respected and inforced Where the true vote cannot be ascertained, whether from the returns or from evidence aliunde, the vote of the precinct is to be rejected." In the State ex rel. vs. Maylow, 42 Kans. 54, speaking of the rule to be applied when the prima facie character of the returns is destroyed, the court said: * * "The legal effect then of the destruction or suppression of the poll books and tally sheets of the election held in Cimmaron township by the friends of that town, is not only to destroy the prima facia character of the returns, but to cast upon them the burden of proving, circumstantially and in detail, every vote cast at that election ** in all cases it is very desirable that all honest ballots shall be courted, notwithstanding the fact that there may exist such a state of affairs as authorizes the court, acting in accordance with well established rules, to reject the whole returns as untrustworthy and unreliable. In every case of this character there is still left a certain number of votes that are admitted to be honest, or that could be easily proven to be so if ordinary diligence is exercised; and no matter how grevious the wrong committed by the election board; and how actively the great body of the supporters of the town assisted in the perpetration of the fraud, still the disposition is, and should be, to count every honest ballot that can be established as such." In Londoner vs. People, 15 Cal. 557, the court in the syllabus said: "Upon the rejection of the returns from an election. precinct, the election therein does not necessarily become an absolute nullity; the burden of proof then shifts upon respondent to establish by evidence aliunde that a sufficient number of legal ballots were cast for him to secure his success." See also, State ex rel. vs. Fulton, 42 Kan. 164; Loyd vs. Sullivan, 9 Mont. 577; In re Wheelock, 82 Pa. 299; McCrary on Elec. Sec. 535. In Rhodes vs. Driver, 69 Ark. 501, the court says: "The election returns of Fletcher township being thus discredited, in the absence of any proof showing how each and every qualified elector voted, it is impossible to purge the ballot of that township here. The contestees, if they depend upon the vote of that township, would have to show by proof other than the returns themselves, as to how the votes were cast." Applying this well-established rule and the further rule that where the returns are successfully impeached for fraud, they are wholly unworthy of credit, and are evidence of nothing except that a poll was opened (Board of Supervisors of Knox County et al., vs. George Davis, et al., 63 Ill., 405); the referee, without objection, and we think correctly, sent for the Waurika box and ordered it opened and its contents was introduced in evidence. During the purging an agreed list of 297 qualified voters was carved out of the box. Of these the record discloses 12 not on the poll books and 13 for Ryan, leaving the residue 254 votes for Waurika. Of a further list of 56 voters orde:cd purged by the court, 6 are not on the poll books, two voted for Ryan and 37 for Waurika, leaving 11 unpurged in the box. Assuming the burden of proof, Waurika sought to qualify a list of 264 votes; of these 19 were not on the poll books, 17 were disqualified, two on the agreed list and four voted for Ryan, leaving the residue, 222 qualified votes for Waurika. This leaves, instead of 661 votes for Waurika and 19 for Ryan out of this box; leaving unpurged in the box 137 ballots after deducting the 17 disqualified voters, leaving also 549 voters who made honest but ineffectual efforts to vote and whose ballots should and will be counted in making up the total number of votes cast at this election. In view that we have held that of said 686 votes 549 only should be counted, and that for the purpose of determining the total number of votes cast only, it would serve no good purpose to answer the contention of counsel for Ryan, that the 513 votes thus found for Waurika shouid be still further reduced because they say in that box there was voted 89 ballots which were written with pen and ink. A purge of the Terrell box ordered by the court on proper showing, subsequent to the first report of the ref eree disclosed, and the referee found in effect that of the 160 votes cast at that precinct 38 were for Ryan and Sɔ for Waurika, leaving 42 unpurged in the box. Said record is affirmed. Hence we hove: Cast in the county outside of Terrell and Waurika pre making the total votes cast 2508, plus the 549 votes cast at the Waurika precinct, but not counted for either town, or 3057 votes, of which neither candidate received a majority. As the counting of votes cast the 137 unpurged votes in the Waurika box and the 42 in the Terrell box would not change the result, we will not determine whether the same should be counted. It follows that, as neither town received the requisite portion of all the votes cast, another election should be called, pursuant to the prayer of the petition already filed and upon which this election was called, for another election, pursuant to Sec. 6, Art. 17 of the Constitution at which election these two towns only are entitled to be candidates and the town receiving the majority of votes cast at such election shall be the county seat of Jefferson County. The injunction granted herein is sustained and made. perpetual. WILLIAMS, J. and AMES, J., concur; DUNN, J., concurs in the result. KANE, J. Dissenting. |