judgment will be reversed, and the cause remanded for a new trial, in conformity with the views herein expressed. Reversed. On Motion for Rehearing. (May 9, 1898.) PER CURIAM. The views expressed in the opinion handed down in this cause do not conflict with the doctrine laid down by this court in Winter v. Goebner, 2 Colo. App. 259, 30 Pac. 51. The two cases are clearly distinguishable. In that, the purpose of the action was to enforce an agreement to execute a bond and lease of certain mining property. The written memorandum of the contract, signed by the two parties, did not recite the payment of any consideration, nor the promise to pay any consideration in the future; nor did the evidence disclose that any consideration had been paid. The court therefore very properly held that it was a mere naked agreement, without any valuable consideration, and was hence not enforceable. In the case at bar the written contract recited a valuable consideration of a specific amount of money to be paid, and the promise was evidenced in the most solemn manner by the execution of a negotiable promissory note. In addition to this, the contract was executed so far as it was possible to be done by plaintiff. He tendered in apt time, as this court held, full payment of his promissory note, and had also received possession of the leased premises from the defendant, and made valuable improvements thereon. This last, of itself, furnished a valuable consideration, which defendant could not question or impeach. The motion for rehearing will be denied. (5 Ariz. 390) OAKES v. FINLAY. (Supreme Court of Arizona. April 16, 1898.) ELECTION-CONTEST-BALLOTS-PAROL EVIDENCE. In a contested election case, where the identical ballots cast are not in court, the court cannot receive parol evidence as to their contents. Appeal from district court, Pima county; before Justice J. D. Bethune. Action by Samuel W. Finlay against George W. Oakes. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed. Chas. W. Bowman and C. W. Wright, for appellant. W. H. Barnes and J. H. Martin, for appellee. DOAN, J. This was an action brought in the district court of Pima county, by Samuel W. Finlay against George W. Oakes, to contest an election held in the city of Tucson, Ariz., on the 14th day of December, 1896, at which the parties to this suit were rival candidates for the office of city marshal. The returns of the election board showed that Oakes received at said election 311 votes; that Finlay received 300 votes. The city council of the city of Tucson thereafter, on the 16th day of December, met, and canvassed the returns, and declared that Oakes, the appellant, was duly elected to the office of said marshal, and issued to him the certificate of such election. The appellee, Finlay, complained in his petition that the election board in Wards No. 1 and 2 of said city did not correctly count the ballots cast at such election, but said boards counted 10 ballots for Oakes in each ward which should have been counted for Finlay. The case was tried to the court, without a jury, at a special term of district court, on the 4th day of January, 1897; Messrs. Barnes & Martin and Charles Blenman appearing as counsel for S. W. Fin lay, contestant, and Messrs. Thomas F. Wilson and Charles Bowman appeared as attorneys for George Oakes, contestee. The ballots cast at the said election were presented and offered in evidence. They were sealed up in two packages, one package indorsed across the folds as follows: "Official Ballots, Ward No. 1. "Chas. Bowman, Inspector. Chas. H. Meyer, Geo. M. Williams, Chas. T. Connell, Judges. R. A. J. "Filed Dec. 15th, 1896. "Rec'd from R. A. J., Jan. 4th, 1897. Chas. F. Hoff, County Treas." The other package (Ward No. 2) indorsed as follows, across folds: "Chas. T. Connell. John E. Magee, Inspector. "Filed Dec. 15th, 1896. R. A. J. "Rec'd from R. A. J., Jan. 4th, 1897. Chas. F. Hoff, Co. Treasurer." The packages were inclosed in brown paper wrappers, folded at each end, with a string passing round the ends and the sides, sealed with wax over the fold and over the string. The testimony of the clerks and judges of election agree that the packages appeared not to have been opened since sealing until opened in court. Charles T. Connell, recorder, testified "that the package of the Second ward appeared to have been unopened"; "that it was not opened by him while in his possession; that his name as it appeared on the package was not as he had indorsed across the package when presented to him; that the initial letter "T' in his name was written at the point where the paper lapped, or where the fold was made; that the letter 'T' as it appeared on the package when presented in court was not his writing; that he had not written it." When the packages were opened, there was a large string of ballots showing those voted and counted. Of the ballots to which there was no objection made by either party, there were for contestant, Finley, 301 votes, and for contestee, Oakes, 311 votes. In the package from the First ward, there were found 7 rejected ballots on the string by themselves, and the contestant demanded that they be counted for him, which the contestee, Oakes, resisted. The court ruled that the said 7 ballots be counted for contestant, Finlay, to which rulIng contestee, Oakes, excepted. In the package of ballots for the Second ward, besides the string of ballots that had been voted and counted, there was also a string of 10 ballots purporting to be 10 ballots that were rejected by the board, and counted for no one. The testimony of the officers of the election agreed to the effect that these were not the 10 ballots that had been rejected by the board. The trial court held that they were not the ballots that had been voted and rejected in the count, to which ruling contestant excepted. The court then received the testimony of the officers of the election, and some others, as to the contents of the 10 rejected ballots which these purported to be, and, from the oral testimony then given, decided that 7 votes, of the 10 that had been rejected, should be counted for the contestant. The court therefore held that there should be counted for Finlay 301 votes, as shown by the returns and supported by the recount of the ballots, and to these there should be added 7, as shown by the rejected ballots from the First ward, and 7 others, as indicated by the testimony in regard to the 10 votes rejected by the canvassing board in the Second ward, and that these 14, added to the 301 already returned for Finlay, would make the total of 315 votes, as against the 311 for the contestee, Oakes. The court therefore found that Finlay was elected to the office, and gave judgment accordingly, from which judgment, and the order denying a new trial, contestee appealed, and brings the case to this court. The appellant has presented one assignment of error: "That the court erred in receiving parol evidence of the contents of the ten rejected ballots." This seems to be the only legal issue presented in the case. The only question to be considered is whether the court erred in receiving parol testimony as to the contents of the 10 rejected ballots in the Second ward, after it was satisded that the 10 ballots appearing on the string as rejected ballots, in the package from that ward, were not the identical ballots that had been voted by the electors, and rejected by the returning board, and in deiding on the testimony thus received that 7 of those 10 ballots should be counted for the contestant; the 7 ballots thus added to the count for the contestant being sufficient to change the result of the election, and entitle him, by a majority of 4, to the position and the emoluments of the office. This court is not called on to determine whether or not the reasoning of the lower court was correct, and the conclusion arrived at the proper and logical one, from the manner in which the ballots were worded and marked, as indicated by the testimony given by the witnesses; but the legal proposition presented by the appellant is that it was error on the part of the court to interfere with or overturn the return of the election board, and the findings of the canvassing board based thereon, upon any evidence other than the identical ballots that were cast at the election by the voters, and on which the election board made their return. In determining the results of our popular elections, it has been generally held that the returns from the election board, when legally and properly authenticated, are not only conclusive upon the board of canvassing officers, but are also prima facie evidence of the number of votes cast, in a proceeding to contest the election; and the burden of proof is upon the person who assails the correctness of these returns. It has likewise been generally held that where the identical ballots that were cast at the election have been properly preserved, so that they can be recounted by the order of the court, they will govern when there is a difference between them and the returns; but it has been held, in the revision of the returns or in a contest over the count as made by the canvassing board, that while the ballots are the best evidence of the manner in which the electors have voted, being silent witnesses, which can neither err nor lie, they are the best evidence only when their integrity can be satisfactorily established. One who relies, therefore, upon overcoming the prima facie correctness of the official canvass by a resort to the ballots, must first show that the ballots as presented to the court are intact and genuine. Tebbe v. Smith (Cal.) 41 Pac. 454. In cases where there has been a doubt in regard to the genuineness or identity of the ballots as those that were actually cast, or in regard to the further question whether the identical ballots cast were in the same condition when presented in court as when voted at the election, the courts have been extremely careful in admitting them in evidence to overturn or contradict the result of the election, as shown by the returns of the canvassing board. To preserve the prevailing force of the ballots as evidence, there must be a reasonable observance of all the prescribed conditions for the safe-keeping of the ballots. It is the duty of the court so far to adhere to the substantial requirements of the law in regard to elections as to preserve them from abuses subversive of the rights of electors. And, under this view, the question becomes a broader one than can be disposed of by answering that in the individual case no harm resulted. As to the controlling force of the ballots as evidence contradistinguished from the returns of the election officers, Spidle v. McCracken (Kan. Sup.) 25 Pac. 897, holds: "That the returns of the election officers are prima facie evidence of what they purport to show with regard to the number of votes cast, and for whom cast, has primarily been held by this court, and has been so held by every other court to whom the question has been presented; and, in the absence of any contradictory evidence, they are conclusive. It has also been held by this court in the case of Dorey v. Lynn (Kan. Sup.) 3 Pac. 557, and in other cases, that, whenever the ballots cast at the election can be properly identified, they are the best evidence, and much better and more reliable than a mere abstract or summary of the same made by the election officers; but, whenever it has been shown that they have been wrongfully tampered with (as has been shown in the present case), they lose their controlling character as evidence, and, where there is nothing else than these discredited ballots to contradict, the returns will be held conclusive." This decision was rendered in a case where, unquestionably, the ballots presented were the identical ballots that had been cast; but the evidence before the court did not sustain the fact that they had been inviolably kept from the election until presented in court. On the contrary, the appearance seemed very strongly to indicate that they had been altered and presented a different appearance when offered in court than when passed upon by the returning board. In the case at bar the trial court ruled that the ballots presented as the rejected list in the package were not the ballots that had been voted and rejected in the count. Neither does there appear to have been clear and conclusive proof of the character and contents of the ballots that were rejected. John E. Magee, the inspector at the election, testified "these ballots are not as we left them." On being asked by the court to explain, witness, referring to a memorandum which he testified was made the night of the election, testified: "The ballots we rejected, two of them were blank, one was marked for both tickets. Five of them were marked by crosses on the extreme right hand of the ticket in the empty space, outside of the little squares, and two were marked partly in the empty space at the extreme right hand, and partly in the blank space where the names of the candidates were; while these ten ballots, which I find in this package, are marked, one blank, one for all of the candidates on both tickets, and all the rest in the small squares on the right hand.” S. B. Conley, one of the clerks, testified: "There was also a string of ten rejected ballots in the package. The ballots on this string of ten ballots are not those ballots. The rejected ballots had four or five marked by crosses at the extreme outer edge of the ballots at the right-hand side. Two were blank ballots. One had all the candidates on both tickets voted for. The remaining number were some of them marked in the squares at the right hand of the ballot, and some of them were outside of the square in the empty space at the right. While these ten ballots here in this package are marked as follows: One is blank, and the remaining nine are all marked in the little square in the third space at the right of the ballot, and none are marked in the empty space like those that were rejected by the election officers." Fred G. Hughes testified: "I think the ten rejected ballots that are here are the same ten ballots that were rejected by the election board, but I am not sure. I am positive that one of them is the same. I was not an election officer." This appears to be all the testimony relative to the identity of the ballots as found in the package, or the manner of marking the ones which were rejected, and which had either been destroyed by the election judges, instead of being filed as required, or had been subsequently removed from the files, and these 10 substituted for them. From the testimony given by these officers of the election and bystanders, the court reasoned out the conclusion in regard to how the 10 rejected ballots should have been counted; and, without the ballots before him claiming to be the rejected ballots in question, he ruled that 7 of those ballots should be counted for the contestant, and the other 3 counted for no one. It is not the correctness of that conclusion, as based upon the testimony given, that is questioned; but it is the right of the court to make any finding or arrive at any conclusion in regard to those ballots on any other evidence than the ballots themselves, and present that finding as of a sufficiently controlling character to overturn the finding already made by the election board, that is resisted. The ballots were canvassed by the returning board at the close of the day of the election. They had before them the ballots that had been cast. They made their returns, in which they certified the number of votes cast for each candidate. These returns constitute the highest evidence that can be adduced in support of that fact, with the one single exception of the recount in court of the identical ballots that were cast; and the return thus made cannot be overturned or set aside upon any other evidence than upon a recount in court of the identical ballots that were thus counted by the returning board at the date of the election. If that is done, and by that count made under the direction of the court a mistaken return by the canvassing board is demonstrated, that, and that alone, is of a sufliciently controlling character to overturn the finding already made. In Young v. Deming, 33 Pac. 818, the supreme court of Utah held that "the fact that such ballots, if cast for contestant, would have changed the result of the election, is not ground for disturbing the result as returned by the inspectors, in the absence of positive evidence that they were so cast." The court said it is deemed unwise to lay down any rule by which the certainty and accuracy of an election may be jeopardized by the reliance upon any proof affecting such results that is not of the most clear and conclusive character. The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so great as when it is known precisely how many votes it will take to change the result; and men who are willing to sell their votes before election will quite as readily sell their testimony afterwards, especially as the means of detecting perjury and falsehood are not always at hand until after the wrong sought to be accomplished by it has become successful, and the honest will of the people has been thwarted. In People v. Sackett, 14 Mich. 320, the court holds that the returns of the inspectors is prima facie evidence of the result of an election, and that where the ballots have not been preserved in the manner required by law, but have been left in an exposed condition or destroyed, the presumption that would otherwise exist of their correctness is not raised, and the court may properly be governed by the returns, unless fully convinced by proof of the integrity of the ballot. "These ballots having been improperly destroyed, and the judges not having certified that they were cast for Mr. Young, we think the evidence that these six ballots were cast for Mr. Young is insufficient to justify that finding, and that the judgment entered in favor of the plaintiff and contestant should be reversed, with costs, and the case remanded for further proceedings." We agree fully with the finding of the court as above laid down, and hold that when the court was satisfied that the 10 ballots that had been voted that day, and that had been rejected by the election board, were not before the court, and in the same condition as when voted, the court could not upon any other evidence reverse or disturb the returns made by the canvassing board. And, although the court might feel satisfied from the testimony of the witnesses as to how ballots marked as they describe should have been counted, it was error for the court to substitute this conclusion in the matter for the decision of the election board made when they had the ballots before them, in regard to the manner of the marking, of which there could be no mistake. It is less dangerous to lay down the doctrine that the return of the election boards should be upheld even when the testimony of witnesses who testify from their recollection differs from these returns, than to lay down as a principle of law that the returns of our election boards, as supported by the recount of the ballots which have been regularly and legally preserved, can be overturned by the parol testimony of witnesses who would come upon the stand weeks after the election, and testify from their recollection as to the num PUSCH v. BRADY. (Supreme Court of Arizona. April 16, 1898.) ELECTION CONTEST-REJECTED BALLOTS. Where, in a contest of the canvass of an election board heard by the court, a string of ballots marked "Rejected ballots" are found on the recount, but are found by the court not to be the same ballots that were voted at the election, oral evidence to show their similarity to those ballots which were rejected is inadmissible to authorize such ballots to be counted for either party. Appeal from district court, Pima county; before Justice J. D. Bethune. Action by R. G. Brady against George Pusch. Judgment for plaintiff, and defendant appeals. Reversed. Chas. W. Bowman and C. W. Wright, for appellant. W. H. Barnes and J. H. Martin, for appellee. DOAN, J. This was an action brought in the district court of Pima county, by R. G. Brady against George Pusch, to contest an election held in the city of Tucson, Ariz., on the 14th day of December, 1896, at which the parties above named were candidates for the office of councilman of the Second ward of the city of Tucson. The returns of the election board showed that George Pusch received 154 votes, and that R. G. Brady received 151 votes. The city council of the city of Tucson, thereafter, on the 16th of December, met, and canvassed the returns, and declared that George Pusch, the appellant, was duly elected to the office of councilman of the Second ward of the said city of Tucson, and issued to him the certificate of such election. The appellee, R. G. Brady, filed his petition in the district court, and alleged that the board of election in the Second ward of the said city did not correctly count the ballots cast at said election in the said ward, and demanded a recount by the court of the votes cast at said election in the said Second ward of the said city for the said office of councilman of the Second ward, and that upon such count the court give to the petitioner the votes legally cast for him for said office of councilman, and find and determine what number of votes in the said Second ward of said city at the said election were cast for the petitioner and for the appellant herein. The case was tried to the court, sitting without a jury, at a special term of the district court of Pima county, on the 4th day of January, 1897; Messrs. Barnes & Martin and Charles Blenman appearing as counsel for R. G. Brady, contestant, and Messrs. Thomas F. Wilson and Charles Bowman appearing as attorneys for George Pusch, contestee. Witnesses on the part of contestant and contestee were sworn and examined. The ballots cast at the said election were presented and offered in evidence. The ballots that had been voted and counted for the several candidates, including the two contestants, were strung upon a long string. There were 10 ballots, marked "Exhibit A," strung upon a short string, and purporting to have been rejected and not counted by the election board. The officers of the election board having testified that these were not the ballots that had been rejected by them, the court sustained the "motion of counsel for contestee that the 10 rejected ballots filed as Exhibit A be not counted." Of the ballots to which there was no objection made by either party, there were for contestant, Brady, 153, and for contestee, Pusch, 154. S. B. Conley, one of the election board, testified that "the ballots on the string of ten ballots found in the package are not the ten ballots rejected by the election board. Of the ten ballots which were rejected, Exhibit 1 is a fac simile of seven of them that were, as a matter of fact, rejected by the election board." J. E. Magee, the inspector of the election, testified substantially the same as Conley on this point. Fred G. Hughes testified that 7 of the 10 rejected ballots were marked just like the ones on the string, and he thought they were the same ones, but could not be sure. The court thereupon held that 7 of the votes represented by the ballots thus rejected be counted for contestant, Brady. Contestee objected, on the ground that, as these were not the identical ballots, the court could not hear oral testimony to show the contents of the ballots that had been rejected, which objection the court overruled. The court thereafter held that there was 153 votes cast for contestant, Brady, in the said Second ward which were not objected to, and 1 ballot found in the package counted for Brady, and of the 10 rejected votes the court ordered that there should be added 7 votes, making the total for Brady, contestant, 161 votes, as against 154 votes for contestee, Pusch. The court therefore found that Brady was elected to said office, and gave judgment accordingly, from which judgment and the order denying a new trial contestee appealed, and brings the case to this court. The appellant has presented one assignment of error, that "the court erred in receiving parol evidence of the contents of the ten rejected ballots." Following the authorities cited and the decision rendered in the case of Oakes v. Finlay (just decided by this court) 53 Pac. 173, we hold that in a contested election case the prima facie correctness of the official canvass stands until overcome by a recount of the ballots cast. The ballots that were cast at the election, and which have been preserved in compliance with the mode prescribed by statute, are admissible in evi 53 P.-12 dence to overcome the prima facie correctness of the official canvass. But, when a resort to the ballots is had to overcome the returns of the election as shown by the official canvass, only those ballots will be counted in the recount before the court for that purpose which were actually voted at the election. The ballots voted at the election which were rejected by the election board, and counted in the returns as "Rejected ballots," and are found among the ballots on the recount in the contest, are evidence of what they present; and it is competent for the court to add to the count for contestant any ballots from such list that he may determine from a careful and critical examination to be so entitled; but a string of ballots marked "Rejected ballots," taken from the package of ballots presented in the contest, and found by the court not to be the same ballots that were voted at the election, have no controlling effect; and the oral testimony of election officers and bystanders as to the similarity of said ballots to those that were rejected, or in regard to how the ballots which were actually rejected were marked, or what they would show if presented, or for what candidate voted, is not admissible to authorize such ballots to be counted for the contestant, as one of several candidates voted for on said ballots at such election. Hartman v. Young (Or.) 20 Pac. 17. In this instance the recount of the ballots actually voted at the election supported the returns as shown by the official canvass. The prima facie correctness of the returns thus supported by a recount of the ballots actually cast, and the presumption that the election officers discharged their duties faithfully and correctly, are of more controlling character than the parol testimony of witnesses in regard to how the rejected ballots were voted, unsupported by the ballots thus claimed to have been improperly rejected, given after election, and when it is known that a certain number of votes would change the result of the election. Such evidence should not be permitted to disturb the result of the election as shown by the official returns, and thus supported by a recount of the ballots actually cast. The judgment is therefore reversed, and the case remanded, with directions to the istrict court to enter judgment for the contestee. STREET, C. J., and SLOAN and DAVIS. JJ., concur. (24 Nev. 305) ELKO-TUSCARORA MERCANTILE CO. v. WINES et al. (No. 1,523.) (Supreme Court of Nevada. May 25, 1898.) PREMATURE APPEAL. An appeal taken before the rendition of the judgment will be dismissed. Appeal from district court, Elko county; George F. Talbot, Judge. Action by Elko-Tuscarora Mercantile Com |