Smith v. Rauh.

apprehend the true rule to be that both the abstract and the poll books and tally sheets when substantially correct upon. their face, are prima facie sufficient, but may be impeached by evidence aliunde, showing their falsity or sufficiency; and that when not so substantially correct upon their face, they may be sustained in the same way. To hold that, when an election has been in fact held, and the majority of the legal voters have in fact, and according to the prescribed forms of law, cast their ballots for the candidates of their choice, the constitutional rights of the voters and of their candidates can be defeated by a mere misprision or omission of the judges or clerks, would be manifestly unjust and contrary to the plain intent and spirit of our election laws."

And in the case of Ingerson v. Berry, 14 Ohio St. 315, the Supreme Court, per Scott, J., declares that the court of common pleas is "clothed with full

power to judge

of the validity of the returns as shown by the poll books, and to go behind them and inquire into the legality of every vote which they exhibit."

The case of Phelps v. Schroder, 26 Ohio St. 549, is to the .same effect.

There would seem, then, to be no room for doubt that the statutes of Ohio, relating to contests of election generally, passed in pursuance of the authority vested in the general assembly by the constitution of Ohio, and as interpreted by our Supreme Court, do give to courts, in contested election cases, the power to go behind the face of the returns and inquire into any neglect, mistake, fraud, or crime, which has interfered with the true expression of the will of the people and that, in such inquiry, oral testimony may be received to support either side of the contest.

But in the case at bar the contestors rely in part upon the testimony of the judges and clerks of the election in the south precinct of the village of Ottawa to prove that their own certificate as to the results of the election was erroneous-and that therefore the result of the election was the reverse of what they had officially certified it to be.

In other words, these contestors seek to have these judges

Putnam County.

and clerks of elections impeach their own certificates by their oral testimony. Can this be done?

We have little hesitancy in saying that, as a general rule and as applied to officers generally, this cannot be done. The authorities are overwhelmingly against their power to do so.

In the early case of Hill v. Kling, 4 Ohio 136, the court held that "the sheriff cannot be permitted, either in pleading or by evidence, to falsify his return," citing Gardner v. Hosmer, 6 Mass. 325, and Purrington v. Loring, 7 Mass. 388.

The case of State v. Moffitt, 5 Ohio 358, while not strictly analogous, decided that the record of an election by the legislature where it was claimed that by mistake the record showed that Samuel Moffitt had been elected judge whereas it was in fact Lemuel Moffitt who was elected, could not be corrected by parol, because members of the legislature could not be heard to prove that the action of that legislature had really been, as against the actual record of that action.

The case of Sinks v. Reese, 19 Ohio St. 306, was a contested election case wherein the tally sheet, poll book and ballots might have been offered in evidence but were not so offered, and oral evidence was offered to prove that an error was made in the

count.

The court held that this could not be done because of the rule requiring the best evidence to be produced where it is possible to produce it.

The case of Taylor v. Wallace, 31 Ohio St. 151, was a case involving the election of state and county officers.

The court held that the declaration of the clerk and justices showing who were duly elected ought to be certified in writing and the certificate ought also to show the day on which the declaration was made in order to fix the time for taking an appeal.

The court then held that 'if, taking the certificate in connection with the returns and the abstract, there is no ambiguity or uncertainty as to the date of the declaration, parol evidence, in the absence of fraud, is inadmissible for the purpose of fixing the time for taking an appeal."

Smith v. Rauh.

In a case decided by the court of appeals of Kentucky it was held that:

"An officer of election will not be permitted to contradict his solemn certificate to the returns signed by him at the close of the election by parol testimony in an election contest." Browning v. Lovett, 29 Ky. L. 692. [94 S. W. Rep. 661].

But the court in that case cites an earlier Kentucky case where the parol evidence of such an election officer was admitted to explain how an error in the additions had been made on the poll books which were in evidence.

In a few cases, such as Hamilton v. Young, 26 Ky. L. 447 [81 S. W. Rep. 682], we find that the courts of other states have permitted officers of elections to testify orally as to the circumstances attending the preparations of their certificates so that it appears that this exaction question has arisen in very few cases and the courts are not at all uniform in holding for or against the admissibility of the parol testimony of an officer of election, impeaching his own certificate. The rulings appear to be governed more by the circumstances of each case than by any clearly defined principle of law; and in most of the cases where such parol evidence was admitted, it appears to have been admitted to explain discrepancies in the certificates and returns or to explain errors alleged to exist in them, their admission being based on claims of fraud or mistake.

With the question thus undecided by the courts of our state and with no definite rule to be derived from the adjudicated cases in the courts of other states, we must resort to the general principles of law in the decision of this case.

It may be said to be well established that the certificates and returns of election officers are prima facie evidence of the fact certified to.

Cooley, Const. Lim. p. 940; Ewing v. Thompson, 43 Pa. St. 372; Hartman v. Young, 17 Ore. 150 [20 Pac. Rep. 17; 2 L. R. A. 596; 11 Am. St. Rep. 787]; 2 Elliott, Evidence Sec. 1294, and many other authorities so declare.

This is equally true of the tally sheets. Howard v. Shields, 16 Ohio St. 184, 189; State v. Donnewirth, 21 Ohio St. 216.

Putnam County.

In the case at bar the tally sheets, certified to by the officers of election, show one state of facts-the five other certificates of the same officers of election show exactly the contrary state of facts. Both are, as we have seen, prima facie evidence of the facts therein recited.

But neither the tally sheets nor the certificates are conclusive. Both are signed and certified as correct by exactly the same officers. If either is correct, the other must be wrong. It is of the greatest importance that the question as to which is more probably right shall be settled. In this dilemma the court must look to whatever evidence is available to aid it in its determination.

Where the same men have signed two contradictory certificates, one of which must be wrong, sound sense would seem to demand that they should be permitted and required to explain the discrepancy. This court is interested not so much in what the certificates say as in what the people actually did at the polls.

Courts of laws and courts of equity both are compelled to allow a wide latitude where questions of mistake or fraud are involved and there is a large class of cases which hold that in cases of fraud and mistake a certificate, otherwise binding, may be contradicted by parol, and even by the oral testimony of the person making the certificate, where such certificate appears to be clearly a mistake or fraudulent. See Elliott, Evidence Sec. 594; Young v. Duvall, 109 U. S. 573 [3 Sup. Ct. Rep. 414; 27 L. Ed. 573].

In view of these principles we have read and reread, with the greatest care, the evidence offered in this case looking first to evidence other than that of the election officers and finally to that of the officers themselves.

What actually took place at the voting place of the south precinct of Ottawa, on October 13, 1908, can only be known to eight persons-four judges, two clerks and two inspectors.

The judges and clerks all signed two absolutely contradictory sets of certificates, two of them attached to the tally sheets, and five of them purporting to state the facts disclosed

Smith v. Rauh.

by those tally sheets. The tally sheets themselves are, of course, the best evidence, for they are the record of the votes as originally called off, and noted before the final result could possibly be known. They were kept by the clerks, and both show that 196 votes were cast for the prohibition of the sale of intoxicating liquors and 119 votes were cast against such prohibition. Immediately after these were signed five other certificates were filled out and distributed as provided by law, though it appears that these had been somewhat irregularly signed before being filled out. These five other certificates all agree in stating the result as exactly contrary to the tally sheets.

Of the eight witnesses to the events of that evening only two-the inspectors-did not sign the certificates. Of these two men A. M. Brown represented the dry side and Andrew Brinkman represented the wet.

Mr. Brinkman testifies that he was present at the counting of the votes, watched the count, saw the record made and knows that the ballots were then burned; that, after the count, the number of votes was called off and that 196 votes were called off as "wet"; that a certificate of the result was made out after the count was over and given to him, as inspector-being certificate known as exhibit "I" and that it showed then, as it does now, that there were 196 wet votes and 119 dry votes. He says, that in counting the votes, there were first 7 bunches of 5. wet votes each before there were any drys; that they put the wet votes in the dry column, and afterwards put the dry votes on the line below.

Mr. A. M. Brown testified that he was an inspector for the dry side, was present during all the time of the court, but did not see how the votes were being tallied by the clerks and did not see any inspection, either by any of the judges or by the other inspector of the tally sheets as they were made by the clerks, and that he made none himself; that all in the room were busy with the particular work assigned to each. He says that he, too, received a certificate being exhibit "J," which exhibit is in exactly the same form as the other four certificates in evidence; that is, it shows 196 "wet" votes and 119 "dry" votes. Strange to say,