McConaughy v. Secretary of State

BROWN, J. (dissenting). I concur in the conclusion that the court has jurisdiction to entertain the contest and that the statute providing therefor is not void for uncertainty, but dissent from that part of the decision holding, in effect, that contestants failed to make out their case, because there was not a complete recount of all the ballots cast at the election. That conclusion is, in my view, in conflict with elementary principles of procedure in such cases and unsound. The contestants charged in their notices of contest irregularities, errors, and mistakes in the returns of the election, and that the true vote showed the adoption of the good roads amendment and the defeat of the tax amendment. To this the state, appearing by the attorney general, made no response by counter notice of an intention to offer evidence on points not specified in the notice of contest, but rested upon the presumptive correctness of the returns and upon the theory that contestants were required affirmatively to prove their case, and, if they could do so, nothing remained for the state to offer. So that the state, as contestee, in no way challenged the accuracy of the election returns as certified by the proper officials. In this condition of the issues the contests proceeded to trial, and upon the final hearing below were consolidated and disposed of as one case. The trial court found from the evidence submitted to it that the good roads amendment received in fact a majority of all the votes cast at the election, but that the tax amendment fell short of *429 the necessaiy number for its adoption. This was the reverse of what the election returns disclosed. There is no question but that the evidence fully sustains the findings of the court. The attorney general makes no contention to the contrary; but he insists, in effect, and a majority of this court sustain him, that because there was not a complete recount of all the ballots cast in every precinct of the state the findings of the trial court cannot stand, and there must be a reversal, because, perchance, if a complete recount had been made, it might have appeared that the tax amendment was in fact adopted by the necessary majority vote. In this I am unable to concur. It is elementary that election returns properly certified are prima facie evidence of the correctness of the result thereby shown, and in the absence of proof to the contrary, not mere assertion in a notice of contest, import absolute verity and are final and conclusive. To overcome this presumption the evidence of irregularities, errors, or defects must be clear and free from doubt. It is unnecessary to cite authorities to a proposition so fundamental and necessary to the integrity of our elections. It is also elementary that in contest proceedings the contestant, however broad may be the allegations of his notice, is required to go no further with his evidence than to make out a prima facie case in his favor. “They may prove less, but not more, than they allege.” Paine, Elections, 824. He may attack by his evidence such of the returns as he chooses, and if he thereby changes the result announced by the official returns he may rely upon the verity of those not attacked and rest his case. At this point, by all rules of proceedings in cases of this kind, the contestee must take the laboring oar and overcome the prima facie case thus made. 5 Am. & Eng. Enc. (2d Ed.) 39; Merritt v. Hinton, 55 Ark. 12 , 17 S. W. 270 ; People v. Thacher, 55 N. Y. 525 , 14 Am. 312; Phelps v. Schroder, 26 Oh. St. 549; Lloyd v. Sullivan, 9 Mont. 577 , 24 Pac. 218 . There was no attempt to do this in the case at bar. The court holds that it was incumbent upon the cohtestant to proceed further with the recount, notwithstanding the fact that when he rested his case was complete, and upon the facts then before the court but one conclusion could be reached, and that to the effect announced by the trial court. This is a departure from the settled practice, and in my opinion not *430 sustained even by the new theory, advanced by the majority opinion, that a constitutional amendment contest case resolves itself into “an investigation for the discovery of the truth,” not controlled by the rules of procedure appropriate to analogous cases. But even in that view the “investigation” has been had, the truth declared, and the conclusions of the trial court should be sustained.