1. Gardiner vs Romulo

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-8921 January 9, 1914

ERNESTO GARDINER,protestant-appellant, vs.GREGORIO ROMULO,protestee-appellee.

William A. Kincaid and Thomas L. Artigan, for appellant. Haussermann, Cohn and Fisher, forappellee.

An appeal from a judment of the Court of !irst "nstance in an election protest for the o#ce ofprovincial overnor of the Province of $arlac. "n the short opinion heretofore rendered b% thiscourt&the entire election held in the municipalit% of Camilin 'as annulled. "t is our purpose, inthis opinion to set out our reason for ta(in such action.

An e)amination of the record convinced us that the frauds and irreularities occurin in

the conduct of the electionin this municipalit% 'ere ver% numerous. $he% ma% be rouped underthe follo'in eneral headins* +& "rreularities in the selection of pollin stations and theconstruction of the votin booths + the disappearance of blan(s ballots after deliver% thereof tothe municipal treasurer, and the subse/uent mar(ins of the remainder b% the various electionboards +0 frauds practiced b% the inspectors in the preparation of the ballots of illiterate voters+1 other irreularities and frauds in connection 'ith the preparation and countin of the ballots+2 intimidation and threats emplo%ed b% Romulo and his partisans on the da% of the election.

&. A preliminar% /uestion is raised b% the appellee as to 'hether evidence as to disreard of theElection 3a' in the selection of pollin stations and construction of the votin booths 'asadmissible under the alleations of the motion or petition b% 'hich the protestant instituted hiscontest. An election contest under section 4 of the Election 3a' is a special summar% proceedin,

the object of 'hich is to e)pedite the settlement of the controvers% bet'een candidates as to 'horeceived the majorit% of the leal ballots in an election for a speci5ed o#ce. "n Arnedo vs. 3lorente+&6 Phil. Rep., 24 it 'as held that rules of procedure applicable to ordinar% civil actions can onl%appl% to election contests instituted under section 4 of the Election 3a' 'here the% are notinconsistent 'ith the provisions of that section, or meet an e)ienc% not provided for in thes(eleton procedure there outlined. 7hile 'e are of the opinion that the motion b% 'hich thecontestant introduces the proceedins should be su#cientl% comprehensive to apprise hisadversar% of the frauds or irreularities upon 'hich he relies to obtain a revision of the o#cialresults, in order that the contestee ma% intellientl% prepare his defense, there appears to be noood reason for insistin upon a more strinent application of the rule of allegata et probata in anelection contest than in an ordinar% civil action. 8nder the liberal provisions of the reformedprocedure, this rule of evidence, 'hich, under, the common la', 'as most riid, has been reatl%

rela)ed, and it is no' 'ell settled that a variance bet'een the alleations and the proof isimmaterial unless the opposite part% has actuall% been misled or surprised thereb% to hisprejudice. $he truth of the evidence objected to is e)pressl% admitted in various stipulations ofcounsel for the opposin parties durin the proress of the trial. $he protestee does not object tothe admission of this evidence upon the round that he 'as misled b% it or that it surprised him.9is objection is the purel% technical one that the motion 'hich instituted the proceedins did notrefer to it. 8nder such circumstances, and 'ithout considerin 'hether his objection 'ould havebeen su#cient had the proceedins been an ordinar% civil action, 'e do not hesitate to sa% thatthe evidence 'as properl% admitted. $echnicalities are rearded 'ith disfavor, even in ordinar%civil actions. $he% should receive still less attention in such a summar% proceedin as an electioncontest.

$he evidence objected to is thus summari:ed in the opinion of the lo'er court* ;$he condition ofthe pollin places in the municipalit% of Camilin 'ere as follo's* The rooms intended for polling

places in each of the ve precincts of Camiling ere located in the upper stories of the respectivebuildings, and it 'as necessar% to climb a stair in order to enter the said booths. "nocencio


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describes ho' the votin booths 'ere constructed. >$here 'as,> he sa%s, >a 'ire 'hich ran fromone side of the room to the other and the rods 'ere fastened at one end of a 'ire the other end of'hich 'as attached to the 'all. $he curtains or cloth partitions 'ere hun on the rod there 'asbet'een the 'ire and the 'all. $he piece of cloth used as a division of the booths 'as & %ard 'ideand 'as hun in such a manner that its lo'er border 'as about a foot from the ?oor. There asnothing at the entrance of the booths and in front of the entrances there as no guard rail . $heonl% uard rail in each of the pollin places 'as that intended for the election inspectors, and 'asin another separate room. !n each and all of the ve precincts of his municipalit" the voting boothsere arranged in that same manner. "n each booth there 'as a school bench used as a 'ritintable b% the voters.;

"n addition to this it ma% be said that from the testimon% of the various 'itnesses it 'as provedthat the school des(s placed in each booth 'ere so arraned that the voter sat facin the side ofthe booth, so that an%one passin alon the ro' of booths could easil% see 'hat 'as bein 'rittenb% the voter if he too( the trouble to loo(.

@ection of Act No. &26 provides* ;. . . Each such pollin place to desinated shall, ifpracticable, be a room upon the loer #oor, of reasonable si:e, su#cient to admit and comfortabl%accommodate t'ent% electors at one time outside the uard rails . . .

$here shall be in each pollin place durin each election a su#cient number of votinbooths, not less than one for ever% 5ft% voters in the election precinct. Each such boothshall be at least one meter s/uare, shall have four sides inclosed, each at least t'o metershih, and the one in front shall open and shut as a doors'inin out'ard and shall e)tendto 'ithin centimeters of the ?oor. Each such booth shall contain a shelf hich shall be thirt"centimeters ide e$tending across one side of the booth at a convenient heiht for'ritin, . . . .A guard rail shall be placed at each polling place at least to meters from theballot bo$es and from the booths, and no ballot bo) or booth shall be placed 'ithin t'ometers of such rail, and each uard rail shall be provided 'ith an entrance and an e$it, theone separate from the other. The arrangement of the polling place shall be such that thebooths can onl" be reached b" passing ithin the guard rail, . . . . @uch booths shall be soarraned that there shall be no access thereto e$cept b" the door in the front of said booth.

A printed cop% of this Act, in Enlish and @panish, shall be hun and (ept in a conspicuousavailable position in ever% pollin place on all reistration da%s and on election da% andma% be consulted b% an% other an% voter or person oDerin to reister.

&. $he provincial treasurer of $arlac Province testi5ed that he received from Manila anddelivered to the municipal treasurer of Camilin 0,0 blan( ballots. A receipte)ecuted b% the municipal treasurer on Ma% &&, &&0, ac(no'ledes receipt of thisnumber. $he municipal treasurer testi5ed that he did not receive this number. Also,that he did not deliver all that he did receive to the election inspectors of therespective precincts. $he follo'in tabulated statement illustrates the aboveconditions*

Precinct Feliveredto

municipaltreasurer

ofCamilin

Numbered

receivedaccordin

totestimon%

ofmunicipaltreasurer.

Numbered

deliveredb%

municipaltreasurer

toelectionboards.

Numberedretained b%municipaltreasurer.

& 4 G6 + 261 &&1


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-------------------

-------------------

G2 G +& 1

0-------------------

G2 G1G +1 02 G

1-------------------

G2 G1G +1 00 0&G

2-------------------

G2 G14 +0 14 &44

$otal 0,0 0,GG +01 ,&21 &,&&

"n e)planation of this shortae of 01 blan( ballots, the municipal treasurer testi5ed that he did notactuall% count the ballots received until Hune 0, the da% precedin the election, 'hen he found 01ballots missin that the ballots 'ere in 5ve pac(aes, correspondin to the 5ve precincts of

Camilin and that from the appearance of the 'rappers, there 'as no indication that an% of theballots had been ta(en from an% of the pac(aes. As opposed to this testimon%, 'e have theadmission of counsel for the contestee that the provincial treasurer actuall% sent 0,0 ballots toCamilin, $here 'as no shortae reported from an% other municipalit% in the province. $hemunicipal treasurer testi5ed that he (ept these ballots in an aparador from the date he receivedthem until election da%. In the mornin of the election, Hune 1, he called a meetin of theinspectors of the various precints to advise them of the shortaes. $he majorit% of the inspectors'ere present, but he could not sa% if all 'ere there. 9e did not deliver all the ballots he hadreceived to the various election boards because, as he stated, the municipal president had advisedthe provincial treasurer that there 'ere , voters in Camilin, 'hereas there 'ere onl% &,0.@o 'itness decided to deliver onl% enouh ballots to allo' one and one-half ballots to each voter.9e still had in his possession at the time of the trial the remainder of the ballots. 8pon bein

informed b% the municipal treasurer of this shortae, the inspectors of the various precincts held ameetin, at 'hich is 'as decided to mar( all the ballots before the% 'ere iven to the voters, sothat if the missin ballots 'ere used b% an%one, the% could be detected. $he mar( decided on 'asan accent mar( over the letter ;I; of ;I#cial Ballot,; printed on the reverse side of each ballot.7e do not hesitate to sa% that the testimon% of the municipal treasurer that there 'as a shortaein each of the pac(aes of ballots he received is, in our opinion, false. $he ballots 'ere e)tractedfrom the pac(aes 'hile in his custod%. And in vie' of his false testimon% in this respect, there is astron presumption that the% 'ere ta(en 'ith his (no'lede and connivance. An inspection of theballots after the election sho'ed the follo'in results*

If the ballots found in t'o ballot bo)es of the rst precinct, all but 5ve bore the accent. !our ofthese 'ere presented as e)hibits for the contestant, and of them the lo'er court said* ;All of these

ballots are found to be mar(ed, on their reverse side, 'ith an accent over the >I> of >I#cial Ballot,>'ith the e)ception of four, E)hibits E-&, E-, E-0, and E-1, 'hich bear no mar( 'hatever. $hree ofthese ballots are for


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precinct 'ere mar(ed, those lost 'hile under the control of the municipal treasurer 'ere utili:edhere.;

$he municipal treasurer delivered to this precinct 261 ballots. !ive hundred and eiht%-three 'erefound in the t'o ballot bo)es, leavin an une)plained shortae of one ballot.

All the ballots used in the second precinct bore the accent mar(. If the &00 blan( ballots deliveredto the municipal secretar% after the election from this precinct, onl% &0 bore the distinuishin

mar(.

None of the ballots used in the third precinct bore the distinuishin mar(. No e)planation is ivenof this. 7hether the inspectors of this precinct 'ere not present 'hen the municipal treasureradvised the inspectors that ballots 'ere missin, or 'hether the% 'ere so advised and declined toaree 'ith the other inspectors to mar( the ballots 'ith the accent mar( areed upon, is not clear.

All of the ballots used in the fourth precinct bore the accent mar(. If the &0 blan( ballotsdelivered to the municipal secretar% after the election from this precinct, eiht had thedistinuishin mar(. !ive of these eiht ballots sho'ed that the% had been doubled in the form in'hich ood ballots are doubled, and then straihtened out in order that the% miht be placed ?atin the envelope.

If the ballots delivered to thefth precinct, the lo'er court found in this connection as follo's*;All the ballots found in the bo)es, e)cept &, bear on their reverse side the mar(s made b% theelection inspector but amon the blan( ballots returned to the municipal secretar%, there aresome 'hich are mar(ed the same as those that 'ere used and 64 of them bear a stro(e across theletter >I> of the 'ord >I#cial> on the inside, and not on the outside, of the said ballots.

0. Accordin to section of the Election 3a', as amended b% section & of Act No. 12,the follo'in procedure must be observed in the case of voters incapable of preparin theiro'n ballots* A voter, other'ise /uali5ed 'ho declares that he cannot 'rite, or that fromblindness, or other ph%sical disabilit% he is unable to prepare his ballot, ma% ma(e oath tothe eDect that he is so disabled and the nature of his disabilit% and that he desires the

inspectors to assist him in the preparation of such ballot. The board shall %eep a record ofall such oaths ta%en and 5le the same 'ith the municipal secretar% 'ith all the otherrecords of the board after the election. To of the inspectors, each of 'hom shall belon toa diDerent political part%, shall ascertain the ishes of the voter, and one of them shall

prepare the ballot of the voteraccordin to his 'ishes, in the presence of the otherinspector, and out of vie of an" other person.

$he judment of the lo'er court contains the follo'in comment as to the discrepancies in thereports rendered b% the inspectors of the 5ve precincts of Camilin, in compliance 'ith the aboveprovisions of la'.

!irst precinct* Accordin to the record of the illiterate voters of this precinct, the inspector

Marcelino !abros assisted onl% three such persons in the preparation of their ballots, andEudo)io Masilonan, t'elve. $he 5rst named, nevertheless, identi5ed &0 ballots as his,'ritten in his o'n hand'ritin and the last named, 0. $here is an e)cess of 0 ballots. "t isunderstood ho', for various reasons, a fe' names miht have been omitted from the list ofilliterates, but not those of thirt% voters. 8ndoubtedl%, these inspectors betra%ed thecon5dence reposed in them, and the ballots 'ritten b% them merit no consideration'hatever.

@econd precinct* Accordin to the record of illiterate voters, 2 of these 'ere assisted b%the inspectors but the latter identi5ed 44 ballots. $here is, therefore, an e)cess of &6ballots. 7ere it a /uestion of onl% three or four names, 'e miht sa% that the electioninspectors forot to record these three or four names in the list of illiterates, o'in to the

haste 'ith 'hich the% proceeded in all their acts and to the lare number of voters 'hore/uested their assistance but 'e do not believe that those inspectors forot to enter &6names. "f these men had actuall% voted, 'e believe that their names 'ould have appearedin the list or record of illiterates. 7e are of opinion that all these ballots be rejected and as


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1 of them 'ere cast for Romulo and 02 for


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times. Euti/uio Bunao testi5ed that he ave


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& to J-&, as bein in the same hand'ritin. All of them 'ere cast for cloc( 'hen it stopped rainin and the% 'ere able to proceed to thesecretar%>s house. $he% reached the latter>s house after & o>cloc(. 9e 'as enabled to 5) the timeof their departure for and arrival at the secretar%>s house because he loo(ed at his 'atch bothtimes. $he secretar% refused to receive the bo)es as it 'as after midniht. 9e and the secretar% ofthe board, one @antos, thereupon 'ent to the house of one cloc( met the other members of the board there. 7hile a'aitin the arrival of the municipalsecretar%, the% noticed that the reistr% numbers of the illiterate voters had not been placed onthe list of illiterates 'ho had voted. $he% also noted that in some cases the votes for some of thecandidates for the municipal council had not been sereated. Also, the cousin of one Cansinoas(ed 'itness ho' man% votes the latter had received, and on loo(in at the election return he didnot 5nd this name. In referrin to the tall% sheets, he sa' that this name appeared. Accordin tothe election return as 5nall% incorporated in the record, this man received votes. Indiscoverin these imperfections in their reports, the% as(ed the municipal president for des( roomin the municipal buildin to ma(e their corrections, 'hich 'as refused them, 'ith the informationthat the% could return to the pollin station to complete their labors. $his the% did, and at 2 o>cloc(that evenin the% had 5nished this 'or( and 'ere read% to ma(e another eDort to deliver thebo)es to the secretar% but it 'as rainin aain. At 6 o>cloc( it stopped rainin and the% thendelivered the bo)es to the secretar%. Clemente>s house, 'here 'itness and the secretar% spent theniht of the Gth, 'as ver% close to the municipal secretar%>s house. Let, it onl% too( 2 minutes toma(e the trip from Clemente>s house to the pollin station the mornin of the 4th, 'hile the nihtbefore it too( an hour to ma(e the trip from the pollin station to the secretar%>s house. $he directe)amination of this 'itness, if it could be believed, 'as a clear, concise, and loical e)position ofthe facts relatin to the election, the method of conductin the same, all the details as to 'hattoo( place. Most of his testimon% is included in the ans'er to one /uestion and covers some sevent%pe'ritten paes of the record. 9is cross-e)amination, ho'ever, presents a series of evasions andinsincerities, and sho's such an inaptitude and hesitanc% in ans'erin the /uestions propoundedto him that credence could hardl% be iven to his testimon% if it stood alone. @alamanca testi5edthat he did not see the bo)es after the niht the secretar% refused to ta(e them. Re%es sa%snothin about spendin the 4th in the pollin station correctin the records of the board. $hemunicipal secretar% testi5ed that he sa' all the inspectors at the municipal buildin on themornin of the 4th and that the% did not deliver the bo)es to him as the% had some corrections to

ma(e. $he bo)es 'ere delivered to him that niht bet'een and & o>cloc(. Accordin to Re%es,'ho also referred to his 'atch, it 'as & o>cloc( 'hen the% 5nished 'ith the returns and startedfor the secretar%>s house on the niht of the Gth, and &.0 'hen the secretar% refused to receivethem. Accordin to the secretar%, it 'as &. 'hen the inspectors appeared at his house 'ith thebo)es. Re%es repeatedl% stated that


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him, on the round that the hour for eDectin deliver% had alread% passed. !urther support of this opinion lies in the factthat the ballot bo)es of this precinct 'ere not sealed.;

2. "t seems that on the eve and da% of the election most of the candidates for overnor andmunicipal president 'ere distributin provisional ballots 'ith their names 'ritten thereon. $heplan 'as for their constituents to ta(e these ballots into the booths and cop% therefrom to theo#cial ballots in order that no mista(e miht be made. Romulo>s provisional ballots more hisphotoraph on the reverse side, 'hile s ballots 'ere devoid of an% such embellishmentso the provisional ballots of the t'o rival candidates 'ere easil% distinuishable.

!n the rst precinct, the 'itness Morales testi5ed that he met cloc( in the mornin. At this time, the overnor 'as on the stair'a%e)chanin his sample for those carried b% s constituents, and tellin them to vote forhim and that if the% did not to loo( out, as he 'ould be overnor until Ictober. $he overnortal(ed to each one individuall% and spo(e in a lo' voice so that he could not be heard unless one'as near him. 9e sa' the overnor e)chane about t'ent% ballots in this manner, and then 'entto inform cloc( in the mornin, testi5ed that he sa'


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on the stair'a% that he 'as deprivin s adherents of his provisional ballots andsubstitutin his +Romulo>s o'n. 9e too( some of these s ballots, 'hile other accepted them onl% because the% 'ere afraid of the overnor. Huancloc(. 9e testi5ed that the overnor 'as on thestair'a% of the buildin e)chanin his o'n ballots for s. 9e +'itness had one ofs ballots and intended to vote for him 'hen the overnor made his e)chane it for one ofhis o'n, sa%in that if he did not vote for him he had better loo( out, as he 'ould be overnoruntil Ictober. $hrouh fear of this threat he voted for Romulo. Chairman Castro of the electionboard 'as 'atchin him 'hile he 'rote out his ballot. Pedro


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the candidate for municipal president of the same name, testi5ed that he sa' Kiilia in the pollinstation on at least t'o occasions tal(in to the inspectors and electors. $he appellant in this case,Ernesto cloc( in the afternoon, he sa'Kiilia standin near the 'indo' of the pollin station, tal(in to an elector. $he% stopped thecalesa and Papa called out to Kiilia as(in 'h% he 'as electioneerin in the pollin station, to'hich Kiilia replied that the% +Papa and d better loo( out, and that heafter'ards treated them to in in a bar. $hreats must be serious and formal and infuse inthe mind su#cient fear to restrain personal libert% of action. $he acts performed b% Bausonand


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'ere a'aitin their turn. 8nder these circumstances, such acts could not be attempted'ithout bein immediatel% repressed.

!n the fourth precinct Kicente "nes testi5ed that he had one of s ballots and that 'hen hecame 'ithin meters of the pollin station, Huan Bauson +reference to 'hom has alread% beenmade 'hile discussin the second precinct sa' the ballot and told him that ballot 'as bad, andave him another ballot, sa%in that 'as his, and that if he did not vote that 'a% he 'ould be sentto the provincial jail at $arlac. "nspector Primero 'rote his ballot for him, and 'itness told him he'anted to vote for


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the% failed to render an% satisfactor% e)planation. If the truth of these 5ndins there can be noserious /uestion.

2. $he most di#cult point to determine is 'hether Romulo and his adherents 'ere uilt% of aspecies of electioneerin on election da% amountin to intimidation of the voters. A considerationof the evidence bearin on this phase of the case and the jude>s 5ndins relative thereto,convince us that the lo'er court failed to ive it due consideration. $he evidence as to the forciblee)chane of provisional ballots, threats, and intimidation in the 5rst and second precincts isparticularl% stron. A considerable number of 'itnesses testi5ed as to the intimidation of voters inthese precincts. As 'e read this testimon% it is convincin and devoid of serious discrepancies orinconsistencies. Nothin contained therein ta)es the credibilit% unless it be that so prominent ano#cial as the overnor of the province should resort to or countenance such un'orth% andreprehensible practices in order to succeed himself in o#ce. cloc( and b% the testimon% of Captain Re%es it is established that Bauson 'as seen b% him inthe 5rst or second precinct on the mornin of the election. $he evidence as to intimidation andthreats in the other precincts is not so stron. "n the third precinct particularl% 'e are inclined toaree 'ith the lo'er court that such evidence is far fetched and unreliable. "n the fourth precinctthe evidence of intimidation is limited to the testimon% of one 'itness. Bauson, ho'ever, admitsthat he tal(ed to t'o voters in this precinct and if the evidence of his conduct in the 5rst precinctis to be believed, there is ood reason for presumin that he assumed the same arroant bearinin the fourth precinct, as testi5ed b% the 'itness "nes. "n the 5fth precinct !rancisco Re%es, arelative of Romulo, appears from the testimon% of several 'itnesses to have threatened andintimidated voters.

After a careful consideration of the evidence before us, 'e have come to the conclusion thatRomulo, Bauson, Kiilia, and Re%es 'ere uilt% of forcin Romulo>s provisional ballots uponun'illin constituents of


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comparativel% recent times in the 8nited @tates, and is enericall% called b% te)t'riters theAustralian ballot la'. $he interpretation and application of the essential features of this la' havereceived the attention of the hih courts of ever% jurisdiction 'here it has been enacted, and anoticeable eDort has been made to divide its provisions into those mandator% and those director%,the former bein supposed to have the eDort of vitiatin the returns 'hen not complied 'ith, 'hilethe eDects of a disreard of the latter are held to be continent upon 'hether the% aDect themerits of the proceedin. $he provisions of the la' as to the conduct of the elections 'hich 'eredisrearded in the 5ve precincts of Camilin 'hich 5rst attract attention are that the pollinstation shall be upon the round ?oor, that the booths shall have four sides enclosed, the one infront to open and shut as a doctor, and that the% shall be provided 'ith a uard rail. +@ec. ,/uoted supra. $he la' does not specif% the conse/uences of a nonobservance of an% one of thesere/uirements, and it is therefore our dut%, upon 'ell-established rules of interpretation andconstruction of statutes, to consider 'hether a failure to observe them violates the spirit andintent of the la'.

"n Bo'ers vs. @mith +&&& Mo., 12 &G 3. R. A., 421, the court said* ;"f the la' itself declares aspeci5ed irreularit% to be fatal, the courts 'ill follo' that command irrespective of their vie's ofthe importance of the re/uirement. +3edbetter vs. 9all, G Mo., 1. "n the absence of suchdeclaration, the judiciar% endeavor, as best the% ma% to discern 'hether the deviation from theprescribed forms of la' had, or had not, so vital an in?uence on the proceedins as probabl%prevented a free and full e)pression of the popular 'ill. "f it had, the irreularit% is held to vitiatethe entire return other'ise, it is considered immaterial.;

"n en'orth% vs. Mast +&1& Cal., G6, it 'as said* ;"t is practicall% impossible to la% do'n an%eneral rule coverin all cases, but 'e thin( the true test to be applied to departures from there/uirements of the la's relatin to the conductin of elections on the proper da% and at theproper place, be those re/uirements called mandator% or director%, is as to 'hether or not theparticular departure is of such a nature as to ma(e it impossible or e)tremel% di#cult todetermine, under the circumstances of the case, 'hether fraud has been committed or an%thindone 'hich 'ould aDect the result.;

"n At(ison vs. 3orbeer +&&& Cal., 1&, it 'as said* ;Election contests arisin out of irreularities ofelection o#cers fre/uentl% present to courts the alternative of either settin aside in the case inhand the honest and clear e)pression of the 'ill of the majorit% of the voters, one of so construinthe election la' as to open the door to future frauds 'hich it is the purpose of those la's toprevent. If course, neither the voters nor those voted for have an% control over election o#cersand to set aside the vote of a precinct, hen there as clearl" no fraud or an" mista%e a+ectingthe result, for mere irreularities occasioned b% the inorance or carelessness of election boards'ould in man% cases be a patent injustice. Moreover, a construction re/uirin an e)ceedinl% strictcompliance 'ith all statutor% provisions miht tempt to irreularities contrived for the ver%purpose of vitiatin the vote at a certain pollin place, and, as 'as said in 7hiple% vs. Mcune +&Cal., 0G&, miht lead to more fraud than it 'ould prevent.> In the other hand, statutor% provisions'hich are clearl% mandator% must be substantiall% complied 'ith and even director% provisionscannot be so rossl% departed from as to ma(e it impossible or e)tremel% di#cult to determine'hether fraud had been committed or an%thin done 'hich 'ould aDect the result.;

As statement of the rule in Hones vs. @tate +&20 "nd., 11, b% the supreme court of "ndiana hasoften been /uoted 'ith approval* ;All of the election la' are mandator% if enforcement is souhtbefore election in a direct proceedin for that purpose but after election, all should be helddirector% onl%, in support of the result, unless of a character to eDect an obstruction to the freeand intellient castin of the vote, or to the ascertainment of the result, or unless the provisionsaDect an essential element of the election, or unless it is e)pressl% declared b% the statute thatthe particular acts is essential to the validit% of an election, or that its omission shall render itvoid.;

$hese eneral rules have been fre/uentl% applied. "n Choisser vs. Lor( +&& "ll., 2G, the returns

from one precinct 'ere not sined b% the judes and cler(s of election, as re/uired b% la'.Proclamation of the results 'as made in onl% t'o out of 5fteen precincts. "n another precinct thejudes of election did not appear, and three persons constituted themselves judes and proceededto hold the election. $here 'as an entire absence of fraud or intimidation in the conduct of the


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election, and it 'as held that these bein mere irreularities 'hich did not prevent or subvert afree and honest e)pression of the popular 'ill, should not be allo'ed to vitiate the returns.

"nitials of poll cler(s indorsed upon the lo'er riht hand corner on the bac( of the ballots insteadof on the lo'er left hand corner as prescribed b% la' 'ere held not to render the ballots invalid,the court sa%in that the error 'as in innocent and honest mista(e of the o#cers. +Parvin vs.7imber, &0 "nd., 2G& &2 3. R. A., 442 0 Am. @t. Rep., 21.

"n Montomer% vs. 9enr% +&11 Ala., G & 3. R. A., N. @., G2G, the ballots 'ere not numbered tocorrespond 'ith the name of the person votin the same on the poll list, as re/uired b% la', but it'as held to be a mere irreularit% not su#cient to invalidate the election, as there 'as nosuspicion of fraud on the part of the inspectors in failin to do so.

!ailure of the election judes to ta(e oath 'hen there 'as a fair vote and an honest count 'asheld, in 9e%fron vs. Mahon% + Mont., 14 Am. @t. Rep., 424, not to invalidate the returns.

Minor irreularities of an election board, voters and b%standers in a pollin station,unaccompanied b% fraud or conduct aDectin the interit% of the ballot 'ere held not to operate to/uash the election in Binham vs. Broad'ell +40 Neb., G2.

$he eneral rule is that a failure on the part of the election o#cers to perform their dutiesaccordin to the statute, 'ill not be allo'ed to disfranchise the voters, unless such failurehas prevented a fair election or in some 'a% aDected the result. McCrar% on Elections,section 41. +Crai vs. @pit:er, &1 %., 1G2.

Ither cases ma% be found of irreularities 'aived, ala"s in the absence of fraud, in 3indstrom vs.Board of Canvassers +1 Mich., 1G4 & 3. R. A., @(elton vs. 8len +&4 Mo., 060


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re/uired to be in 'ritin, accompanied b% a deposit. $he inspectors acceded to the re/uest, andproceeded to recount the ballots, the candidate in /uestion and his brother assistin and advisin.$heir count ave this candidate a small pluralit%. Althouh there 'as no sho'in of fraud, it 'asheld that these irreularities 'ere so prominent as to necessitate a return to the 5ures oriinall%iven out b% the board.

"n Perr% vs. 9ac(ne% +&& N. F., &16, throuh a misinterpretation of the la' relatin to theconstruction of the booths, the% 'ere built in e)actl% the same manner as 'ere the booths in themunicipalit% of Camilin, e)cept that the 'ritin shelf 'as placed aainst the bac( of the booth, sothe voter>s bod% and the sides of the booth prevented an%one passin alon the line of boothsfrom seein the ballot 'hile it 'as bein mar(ed. $here 'as also a ro' of school des(s used as auard rail in front of the booths althouh the% 'ere not & feet from the booths as re/uired b% la'.$here 'as not even an alleation of an% fraud or intimidation in the conduct of the election. $hecourt said*

Not onl% do the 5ndins sho' that the omissions had no eDect upon the state of the vote,but the% also sho' that the electors in Che%enne precinct had a secret ballot 'ithin themeanin and spirit of the la'. "t is true, the statutor% mode of uardin its secrec% 'as notstrictl% obe%ed that is, the voter 'as not screened from observation 'hen mar(in hisballot in the manner contemplated b% the statute, and the uard rails 'ere not & feet fromthe ballot bo)es and booths. But these are mere means of securin a secret ballot, 'hich isthe end aimed at and 'hen that is accomplished the spirit and purpose of the la' has beenaccomplished. B% reference to the 5ndins before set out, it 'ill be seen that, 'hile thebod% of the voter 'as in full vie' 'hen in the booth, his ballot, 'hen laid across the shelf inthe booth for mar(in, 'as concealed b% his bod% and the sides of the booth. 9e 'as ableto mar( his ballot screened from observation, and it does not appear that an% ballots 'eremar(ed other'ise than in secret. $o hold that this election 'as not b% secret ballot 'ouldbe, in our opinion, to subordinate substance to, form, and to hold that the means and notthe end, is of permanent importance.

"t 'ill be noted that the court emphasi:ed the fact that the booths so far complied 'ith the la'that the voter 'as not prevented from mar(in his ballot in secret. "t can 'ell be doubted if thereturns 'ould have been upheld, even thouh it appeared that the election 'as conducted 'ithoutfraud, had the inspectors provided no uard rail and had placed the 'ritin shelf facin the side ofthe booth instead of the rear, so that a person passin alon the ro' of booths could easil% seeho' the ballot 'as bein mar(ed.

"n Choisser vs. Lor( +&& """., 2G cited supra, the judes of election in one precinct did not appearand three persons constituted themselves judes and proceeded to hold the election. $here 'ereonl% three booths, an insu#cient number, and for that reason some of the ballots 'ere mar(ed ina small adjoinin room. $he authori:ed reister of voters 'as not used but it 'as not sho'n thatan% illeal ballots 'ere cast in conse/uence of the absence of the reister. $he court upheld theresults 'ith the e)ception of the votes 'hich 'ere mar(ed in the small adjoinin room on theround that there had been no fraud in the conduct of the election.

As to these votes, ho'ever, the court said* ;$his provision of the statute +relatin to theconstruction of booths is an important one, and should not be disrearded. "t has been held that afailure of election o#cers to erect booths in compliance 'ith la' 'as an irreularit% 'hich 'ouldnot vitiate the election. +Mo%er vs. Kan de Kanter, & 7ash., 044 2 Am. @t. Reps., . 7e are ofthe opinion, ho'ever, that this statute is so far mandator% that it must be substantiall% complied'ith. $o permit a room adjoinin the room in 'hich the election is held to be used as a booth 'ouldopen 'ide the door for fraud b% permittin unauthori:ed persons to have access to the voter andit 'ould substantiall% destro% the seclusion of a citi:en 'hile preparin his ballot at least suchmiht be the result.;

"n Ban(s vs. @erent +&1 %., 610, about 42 voters in one precinct had their ballots mar(ed on

the table b% some o#cers of election 'ithout an% disabilit% bein sho'n and 'ithout s'earin thevoter. $he proof sho'ed that the voter 'ould be furnished 'ith a card or slip of paper, 'hen heentered the pollin station, containin the names of the parties he desired to vote for, and that onpresentin this card one of the election o#cers 'ould read it loud 'hile another 'ould mar( the


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ballot. Booths 'ere placed near a 'indo' 'ith the 'indo' lihts out and near lare crac(s in thehouse, it bein a lo house. 7hen a voter 'ent into a booth persons outside could see ho' he 'asmar(in the ballot. If this precinct the court said*

"t 'as in no sense a secret ballot. $he secrec% of the ballot is a fundamental idea of allelections, and this is re/uired b% the constitution as 'ell as b% the statute. $his central ideabein disrearded in this precinct, and a practical viva voce election held, as the proofsho's, 'e are of opinion that the returns therefrom should be disrearded.

Contrast the above cases, in 'hich there 'as no chare of fraud or intimidation on the part ofan%one, 'ith the follo'in cases, 'here the inspectors of election 'ere uilt% of fraudulentpractices.

"n @tate vs. Malo +1 an., 21, the election board 'illfull% refused to issue a statement,immediatel% after the polls closed of the number of votes polled, as re/uired b% la' the% refusedto permit an% of the opposin part% to be present in the pollin station durin the reception of thevotes, as re/uired b% la' and induled in man% other fraudulent practices. $he court said* ;"n a'ord, ever% provision of the statutes of this @tate made for the purpose of preventin fraudulentand corrupt practices in the conduct and result of elections 'as 'antonl% disrearded b% theelection boards in Cimarron and !oote to'nships, and b% the cler( of the count%, and b% all the

o#cers 'hose dut% it 'as to see that a free and fair election 'as held and an honest count had.$hese repeated omissions of dut% and 'illful violations of positive re/uirements 'ere not theresult of inorance or carelessness, but 'ere produced b% a settled determination to carr% theelection in favor of Cimarron b% an% means and at all ha:ards.;

"n Rhodes vs. Friver +G Ar(., 2&, persons 'ere permitted to vote 'ho had not paid their pollta)es votes for t'o persons (no'n to one of the judes to be dead 'ere received t'elve 'ererecorded as votin 'ho s'ore the% did not vote four 'ere recorded as votin 'ho 'ere not in theto'nships si)teen recorded as votin could not be found in the to'nships and all of the abovevotes 'ere for the contestees. $he o#cers of election 'ere stron partisans of the contestees.$here 'as evidence that the oriinal poll lists 'ere destro%ed and others substituted $hese fraudson the part of the election board 'ere held to vitiate the election.

"n Attorne%-


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preparin his ballot and that it 'as the intention of the 3eislature b% these means to free thevoter from all e)traneous in?uence, and to ma(e his ballot an e)pression of his o'n 'ill.

"n Irr vs. evil +& @. 7., 0&1, %. Ct. App. &6 ballots 'ere mar(ed b% voters 'ho had beenbribed, a fact of 'hich the election inspectors 'ere coni:ant, G ballots 'ere found in the bo)'hich did not bear the cler(>s name upon their bac(s, and upon three of these bein unfolded andfound to be Republican votes objection 'as made to openin an% more. 8pon trial these G ballotscould not be found. $he la' provided that 'here it appeared from an inspection of the 'holerecord there 'as such fraud and briber% in the conduct of the election that no one could be said tohave been fairl% elected, the returns should be thro'n out. $his provision of la' 'as heldapplicable and the returns from that precinct ordered thro'n out, the court sa%in* ;An electiono#cer 'ho so far, forets the sanctit% of his oath as to participate in one (ind of fraud at anelection, can readil% be believed to be 'illin to commit an% other 'hich the necessit% of his part%re/uires, and the opportunit% of his position permits. "t re/uires little (no'lede of the methods ofelection frauds in modern times appreciate ho' easil% a close election could be turned b% a shift%and resourceful cler( omittin his name from the bac(s of the ballots of inorant and un'ar%voters, if this 'ould su#ce for the accomplishment of the evil desin.;

"n Russell vs. @tate +&& an., 0G, the court said in part* ;No' comes the contestant and sa%s thatthe record +of the election board is a lie, and proves that &4 of the names so recorded as thenames of leal voters are 5ctitious, and that &4 spurious ballots 'ere cast into the ballot bo). "nother 'ords, he proves absolutel% that nearl% one-fourth of this record is false. And this falsehoodcannot have been the result of inorance or mista(e. "t is not possible that this could havehappened 'ithout the (no'lede, consent, and connivance of both cler(s, and some, at least, ifnot all, of the judes. @urel%, there 'as criminal culpabilit% if not actual, intentional 'ron-doinon the part of all the o#cers of that election board. But sa%s the contestee, the 'hole record is notsho'n to be false. Reject the &4 votes proved to have been spurious, and accept the balance notthus proven. "n other 'ords, accept all of the record not proved untrue. "f the falsehood resultedfrom mere mista(e, there 'ould be reat force in this demand. @o also, if the falsehood resultedfrom the fraud or 'rondoin of others than the board. But 'here the recordin o#cers are provedto have (no'inl% made a larel% false and fraudulent record, ho' can 'e place reliance on an% ofthe record Falsus in uno, falsus in omnibus. . . .

"t doubtless happens that some leal voters are b% this decision deprived of the bene5t oftheir votes. Perhaps there 'ere honest votes cast, enouh to have iven the majorit% to!redonia. A lare majorit% of the citi:ens of !redonia are honest men, 'ere inorant of thefraud 'hich 'as bein perpetrated, and are doubtless as much rieved as 'e at thisterrible trespass on the purit% of the ballot bo). Ma% this e)ample preach its lesson, notalone to them, but e/uall% to ver% citi:en of the @tate. $he% 'ho in Rome 'atched and (eptthe sacred 5re 'ere vestal virins. E/uall% pure should the% be 'ho 'atch and uard that'hich is far more to us than m%stic altar 5res.

$he contrast bet'een the t'o lines of cases is most mar(ed. 7here it has been established that afair and honest election 'as held, none but the ravest irreularities 'ill avoid the election* suchas miht be said to raise a presumption of fraud. But 'here the election board has committedirreularitiesfraudulentl", the% need not be serious or numerous. $he position and duties of anelection board is one 'here much must be left to the honest% and interit% of its members. Man%of its acts must be accepted as true even thouh false, for the reason that no ade/uate proof canbe secured of their falsit%. $he la' has, ho'ever, outlined its duties 'ith some care and fraudulentpractices (ept 'ithin bounds can not, as a rule, assume lare proportions. Nor can fraud bepracticed in man% directions 'ithout assertin itself at some point or other. @o that from the ver%di#cult% of follo'in all the movements of the board, a rave suspicion immediatel% arises as toits honest% of purpose 'hen once a fraud chareable to it has been discovered. $he thouhtimmediatel% suests itself, if fraud 'as committed here, it is probable that it 'as also committedthere, 'here it can not be proved e)cept b% the confession of the inspectors themselves. $heeneral rule is that a 'itness proved a 'illful fasi5er on a material point is thorouhl% discredited.$he same rule should appl% to the record made b% an election board. "t isprima facie evidence ofthe results of the election, bac(ed b% the familiar presumption that public o#cials have done theirdut%. But once it is proved fraudulent in an important particular, the part% claimin under it shouldbe put to his proofs. @uch is the rule, more stronl% stated, ho'ever, b% McCrar% on Elections, sec.21& et se*


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$he safe rule, probabl%, is that 'here an election board are found to have 'ilfull% anddeliberatel% committed a fraud, even thouh it aDect a number of votes too small tochane the result, it is su#cient to destro% all con5dence in their o#cial acts, and to putthe part% claimin an%thin under the election conducted b% them to the proof of his votesb% evidence other than the return.

And he declares the same rule applicable 'hen the interit% of the returns is destro%ed b%misconduct of the o#cials, consistin in ;a rec(less disreard of the la', or in inorance of itsre/uirements; thouh no corrupt purpose be a#rmativel% sho'n. +"d., sec. 21. +And see3ondoner vs. People, &2 Colo., 224.

@uch are, 'e believe the principles 'hich overn the case at bar. $he /uestions 'e are called uponto decide are* 7ere there mere irreularities in the conduct of the election in the 5ve severalprecincts of Camilin "f so, 'ere these irreularities of so serious a character as to be ascribed toine)cusable inorance or a rec(less disreard of the la' 7ere there fraudulent practices in theconduct of the election 7ere threats and intimidation emplo%ed of a character serious enouh tointimidate and coerce the electors

7ere 'e confronted 'ith the bare proposition that the pollin stations 'ere located on the second?oor and that the 0-meter space around them 'as not (ept clear, it miht be that 'e should not

have ta(en drastic step of avoidin the returns from this municipalit%. $he la' directs that thesethins be done, but it does not sa% that the fact that the% 'ere not done shall have the eDect ofvitiatin the returns, and unless the nonobservance of the la' in this respect 'as made a meansof fraud or coercion the% should be considered as harmless irreularities.

But the failure to provide booths accordin to la' is of a more serious character. $he central ideaof the Australian ballot la', as so often e)pressed in the cases, is to shroud the ma(in of theballots in absolute secrec%. All the eDorts to secure a free and untrammeled e)pression of theelector>s 'ill lead up to and depart from the point. "f the plan fails in this particular, it is 'orse thanuseless to have him reister his vote on a slip of paper and re/uire the election board to othrouh the arduous tas( of compilin and ascertainin the result from numbers of such slips. $hevotin booths in the 5ve precincts of Camilin in no sense of the 'ord insured a secret ballot. $he

most super5cial stud% of the Election 3a' should demonstrate that the central idea is to preventan% other person than the voter from (no'in ho' he mar(s his ballot. And the most ordinar%intellect could not fail to observe that open booths, unprovided 'ith a uard rail, and 'ith the'ritin shelves facin the sides of the booths 'ould leave but a mere shado' of the absolute andimpenetrable secrec% 'hich a strict compliance 'ith the la' aDords the voter. No e)planation ofthis ross disreard of the la' has been made. "t has not been alleed that it 'as due to inoranceor a misunderstandin of the la'. "ndeed, it 'ould be di#cult to believe that the importance ofaDordin the elector a secret ballot should be so far misunderstood as not onl% to fail to provide'ith doors and uard rails,but also to place the riting des%s so that the" faced the sides of thebooths. $he combination of the three circumstances suests stronl% that it 'as due to desinrather than to mista(e or inorance.

But it is unnecessar% to base our decision in this case on the fault% conditions obtainin in thepollin stations. $he inspectors of the 5rst, second, third, and 5fth precincts have beenconclusivel% sho'n to have returned a fraudulent list of illiterates. $he same list prepared b% theinspectors of the fourth precinct is also inaccurate, and certaint% of their dishonest% is onl%lessened b% the reduction of the discrepanc%. !or this discrepanc% the election inspectors of thisprecinct oDer no e)planation, and none has been suested 'hich, to our vie', is reasonable.Ballots unaccountabl% disappeared after the blan(s had arrived at the municipalit% of Camilin,and no ade/uate s%stem of mar(in the remainin suppl% 'as adopted, and even this 'as notuniforml% adopted. Chares of threats made 'ithin the 0-meter limit, and in some instances,'ithin the ver% buildin 'here the pollin station 'as located, appear to be 'ell founded. Besidesthese matters, applicable to all the precincts, various incidents stra's, as it 'ere, indicatin thedirection of the current have been proved to have occurred in particular precincts, 'hich it is

not necessar% aain to recall. A threat as the voter entered the pollin station, and the espionaeof a :ealous partisan 'hile the ballots 'as bein mar(ed doubtless caused man% a voter ofpeaceful tendencies to succumb to such stron-arm methods, and to 5nish the disareeablebusiness as soon as possible. 9o' man% such votes 'ere thus obtained it is, of course, impossible


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to tell. @uch methods are not con5ned to particular ballots, easil% distinuishable durin thecanvass of the votes. $he% are diDusive* to locate their triumphs is impossible. Nevertheless, votesso obtained are as fraudulent as particular ballots containin identi5cation mar(s, 'hich areconclusivel% presumed to be fraudulent. $he latter, 'hen discovered, are simpl% not counted. $he%have no other eDect on the results. "t is just as desirable that votes obtained throuh coercivemethods should not be counted, but bein incapable of detection it has been necessar% to adopt amore heroic treatment. $he courts have therefore laid do'n the rule that 'hen fraudulent votesare so mi)ed up 'ith honest votes that it cannot be determined ho' man% are honest and ho'man% are fraudulent, the returns shall be destro%ed. +@tate vs. !ulton, 1 an., &G1.

"t is necessar% to sho' that a majorit% 'ere actuall% prevented from votin, or votedaainst their 'ishes b% reason of the practice +intimidation. 7hen the 'ron is ?arantand its in?uence diDusive, it is su#cient that it renders the result doubtful. +Hones vs.

1. Gardiner vs Romulo

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Transcript of 1. Gardiner vs Romulo