THIS is an action in quo warranto brought by the people of the state of Colorado upon the relation of Royal R. Graham, et al., against Ben B. Lindsey, asking the court to require defendant to show cause why he is entitled to hold the office of juvenile judge in the City and County of Denver, why he should not be ousted therefrom, and why the relator Graham should not be admitted into the same, and also for other appropriate relief.
The trial court at the conclusion of the relators' case found the issues in favor of respondent, and relators bring the case here for review.
After the case was brought to this court Graham died, and Mrs. Graham, his widow, was substituted as the relator, Charles L. Laney, the other relator, having withdrawn.
At the November, 1924 election, the relator Graham and the respondent Lindsey were rival candidates for the
office of juvenile judge of the City and County of Denver, Graham being the Republican candidate and Lindsey being the Democratic candidate.
The election returns showed respondent to have been elected by a majority of 137 votes, and he was issued a certificate of election. At the trial in the district court all the ballot boxes of all the precincts of the City and County of Denver were opened and a recount of the ballots had, upon which the court found that respondent had been elected by a majority of 35 votes, and rendered judgment accordingly.
Errors and mistakes on the part of the judges and clerks of the election in receiving and counting the ballots in precinct 6, district J, and also fraud on the part of election officials and others in that precinct are charged.
It was also claimed that certain ballots were not marked in the space or square placed on the ballot for that purpose opposite the name of the candidate, but were marked above and below the line, and were improperly counted.
Four witnesses were called to testify on behalf of the relators concerning the charges of fraud and misconduct of election officials and others in precinct 6, district J, and their testimony we shall here briefly summarize.
Thomas L. Otter testified: Saw William Unter there standing at the door of the voting place; saw him on the front porch, inside, outside, and all over, marking ballots on the front porch, back in the judges' room, and helping in counts; that he seemed to do everything that was to be done; that he didn't seem to care what he did; that he did as he pleased; saw him mark one ballot outside the voting place; saw him go into the voting booth several times with voters; that Unter said he did it because the people didn't understand how to vote; saw Unter go into the booths and mark ballots three or four times; did not see any judge swear Unter; saw the election judges go into the booths with voters; there was disturbance there all day long in the election booths and in all three rooms.
He further said, "There was so much trouble, my God, I couldn't begin to tell it"; that every time the witness went into the kitchen Unter would go in the other room; that witness would follow him up and he would come back again; that things run along those lines back and forth, with the witness following him and he following the witness all day long; that Mr. Mowry came in all hostile; that the counting judges thought there was going to be trouble, and possibly a riot, and they said, "Let him count them." Witness told Mowry that he would have to go out; that there was so much disturbance that witness tried to get them to stop the counting; that there were close to ten or fifteen people in the kitchen with the counting judges while they were counting; that about eight o'clock that night some fellows whom the witness did not know took half the ballots in another room from the counting room and counted them themselves; that they took them from the counting clerks; thought possibly they took a hundred or more ballots; that they took a big stack and split them; that four or five other people went with them; that they went in the other room and closed the door; that witness went to try to get the election commission to send somebody up there because things were not right; that he couldn't get them and decided to let it go; that he knew that the ballots these men took into the other room had not been counted by the counting clerks; that at times he was in that room himself, and that the people in there were just counting the ballots; that these men reported back to the counting judges how many of the votes Lindsey got and how many Graham got, and the counting clerks took their report; that there were ballots all over the house; that he did not know what became of them; that Unter was the only one among these men whom he knew; that he saw others besides Unter and the judges of election who entered the polling places with voters, possibly three times; said he was in the room where the ballots were taken before they were counted; that everybody was trying to count them at once; that he
took particular notice of what happened; that witness was threatened by Mowry and four or five others. When asked how it happened that the women counted he answered, "They thought there was going to be a riot." He said the women were absolutely afraid of the men.
McCullough testified that he was there on election day as Republican executive committeeman; that voters would go into the booth and three or four people go with them who were neither election judges or officials; that he saw about 152 ballots taken into a side room after the election was over, and saw six men in there with the ballots; that among the six were Unter, Silverberg and Weitz; that they had no poll books or tags, or anything to show that they were counting the ballots; that they had these ballots scattered over the table, and when witness went in Unter told him they were helping with the counting; that witness complained that he was not getting a square count; that a blond lady came up to him and said, "I will tell you what we will do, we will just give you 50 votes"; that witness said, "Just what do you mean, 50 votes?" That she replied, "Why, 23 will give you 50 votes for your candidate"; that witness said, "I have no candidate, I am merely here to check up and see that the ballots are actually counted as they were cast"; that she replied, "Well, we are tired and we don't want to go through all this stuff again, and we will just give you fifty votes — we will give you 50 for Morley, and will take 50 off from Sweet and give them to Morley"; that witness then said to her, "No, I don't want votes for anyone; all I want is the vote as actually cast"; that they had all the ballots in the box except 152 that were in the other room, and that the blond lady said to him, "Well, now, we don't want to go all through this, and we will just give you 50 votes"; that the blond lady went away and presently came back and again said, "Now, listen, if we will give you 50 votes you should be satisfied. We don't want to do this over"; that Unter spoke up and said to the blond lady, "You don't know who you are
talking to, you had better go out in the other room"; that the blond lady was Unter's sister; "I demanded a recount of the entire ballot, which they refused, but they did go back to the back room to the counting judges. They had the tally sheets and the reports all made up; they took 16 votes off Mr. Sweet's count at that time, and absolutely refused to make any further recount on it"; that the counting judges took the report made by the gentlemen and ladies and went back there and told them what the count was, and the counting judges changed their tally sheet to make it conform to the recount as brought back to them. He saw them tallied on the report as given by Mr. Unter and others. Unter had physical possession of the ballots in the front room where the six people were; that Unter and others put the count down on pieces of scrap paper and reported it to the tally clerks, and they entered it on the books as the amounts by Unter and others; that the count on 152 ballots was correct, so far as Juvenile Judge was concerned; that the only mistake he knew anything about was 16 votes which Sweet got which he was not entitled to.
George Carroll testified that he was at the polling place at 9:30 in the evening; that in the front room there were two women and four men; two of them were Silverberg and Weitz; that he did not know the others; that when he went into the room the parties present gathered the ballots and one man went out in the back room, came back with a piece of cardboard and started counting them, giving them off and tallying down on a piece of cardboard. Witness testified to the conversation between McCullough and the blond lady over the vote for Governor; said that Unter told the woman to shut up, that she didn't know what she was talking about; that the woman offered to give 50 votes to the side that she thought McCullough was on; that witness went in the back room with McCullough; that Unter brought in a cardboard and announced the votes, and the clerks recorded them; that he didn't see the tally clerks examine any of the
votes; that the ballots were left in the other room; that the lady said there were 152 ballots in the other room.
William Unter testified that he was a watcher for the Democratic party, taking charge of the workers, and seeing that everything passed all right; that the counting judges consisted of his sister, Mrs. Singer, Mrs. Reckler, and Mrs. Rolnick; that the receiving judges were Mrs. Steinberg, Miss Goodman, and Mrs. Sapperstein; that he knew Silverberg and Weitz, Silverberg being there for the Democrats and Weitz for the Republicans; that Silverberg and Weitz entered into a deal and agreement with his sister, Mrs. Singer, and that he knew all about it himself; that under the agreement the only thing Republicans wanted was the state senators, and the balance of the ticket was for the Democrats to do with in whatever way the witness wanted; that the deal was entered into five or six days before election; that during election day he was inside in the counting room, was outside, and in the receiving room for a while, and in and out all day; that he was in the voting booths; that while the voters were voting he went in the voting booths fifty or sixty times probably, or more; that he went in there at times to show people the way to vote his ticket; "Most of the time I went in there myself to mark up the ballots for the voters," and that he would mark them, sometimes at the request of the voters and other times on his own motion; that he was not sworn; sometimes the voters asked for assistance and sometimes they did not, most of the time they didn't ask for it; that he couldn't say exactly how many ballots he marked in the booths, but guessed around about fifty; that he marked the ballots for the Democratic ticket all the way up and down, including Judge Lindsey; that the voters didn't ask him how to mark the ballots; that he went in there himself and actually marked them; that he was never sworn to render assistance for the people whom he assisted; that he did those things off and on all day; that there were others in there who were not judges or clerks doing the
same thing; that Silverberg was one who was in there doing the same thing; that a couple of times he walked in the ballot booths when Silverberg was in there marking up ballots; that when his sister was out for a while he went in to take charge of the ballots, and to count them; that Silverberg was not sworn to render assistance; that there were none of the judges or counting clerks with Silverberg in the booths; that he saw him in there twice; counting judges in the kitchen, the receiving judges in the front room; that after he marked the ballots in the booths he gave them to the voters, and they passed them up to the receiving judges; that the Democratic judges were appointed about a week before the election, and that the Republican judges were changed a few days before the election at the request of Silverberg; that Mrs. Reckler and Mrs. Rolnick were put there at Silverberg's request; that witness went a few times to empty the ballot box and took the ballots to the counting room; that Unter and others opened the box and took out the ballots; that at night he took a little part in counting the ballots; that the last batch of ballots, 157, were taken into the front room by some persons, and they were in there counting them, and then he went away and left the ballots in there. "I was in there with Silverberg alone with these ballots starting over myself to count them. Must have been there about an hour." That an argument started in the back room and Silverberg went back and left him alone; that they were in there at the time just counting them up; that they were keeping tally on a piece of scrap paper; that the 157 ballots were left on the table in the front room after they got done with the count for juvenile judge and for the district attorney; "Silverberg and I went over the ballots ourselves in counting them, and counted them anyway we saw fit at the time;" that witness was alone with the ballots for about ten or fifteen minutes and said that he saw the way they were in the other room during all day, he saw them counting, counting
them up all around, and so he was marking the ballots to agree with the count; that he just marked in his ticket; that he did that as long as he was in there alone; thought he marked fifty or sixty for the Democratic ticket; did not mark any for Graham. "After we got through with the 157 ballots we took them in the kitchen or counting room where the counting clerks were. We just gave them a tally of our count. I just gave them the amount of votes for each person that we had on the piece of paper, on the scrap of paper." That on some of the officers they actually did make a count, "and the others we arrived at this count ourselves;" saw Silverberg, also the receiving judges, sometimes the other judges and the clerks, go in there to mark ballots; they marked them in the voting booths; they were not sworn; did not see any memorandum made on any tally list or ballots as to assistance rendered anybody; saw all the receiving judges marking ballots at different times; marked them the way he asked them to for the Democratic ticket; marked them in the booths; thought they marked as many as he did, about fifty or sixty. Said that he knew McCullough; "McCullough came in the room about 9:30 and noticed something wrong. He found that we did hand in just too many votes for Governor Sweet." Said that he had a faint recollection that an offer was made to give so many votes to Governor Morley if there would be no recount; that McCullough blamed him because he was in there alone with the ballots; that after they had reported to the judges and counting clerks on the 157 ballots they took them to the judges to be counted; that the counting judges did not recount the ballots, but took the report that the witness made; that he marked down on a scrap of paper the number of ballots that each candidate was to have credit for; said there were some they gave the actual count and some they did not bother at all with the counting; judges set down a figure; that that was not true as to Judge Lindsey's vote; that none of the voters who were assisted took any oaths before such assistance was
rendered, and none made the oath that they were physically unable to mark the ballot without assistance; witness said that he knew Francis of the juvenile court; that a week before election he met Francis on the street; that Francis asked him to take good care of Lindsey out there and that he would take good care of the witness; that he promised him $150; that he afterwards received $25, and no more; that Jack Martin paid witness' house rent, $65 a month; while witness was in jail, and furnished witness' family with groceries during that time; that Martin commenced paying his house rent about January 25th; that Martin gave him some money around about Christmas time, or in the beginning of December; that Martin gave him $100 while witness was at Stellor's house; that since that time and up to the time of trial Martin had been paying his house rent; witness said he understood why Martin was doing it; that it was because he was in jail, with no means to support his wife and babies, and that was his reason for doing it. When asked if he didn't know that the reason Martin gave him that $100 was because witness had made a statement to the chief of police, and because he expected him to favor him in this case against Judge Lindsey, the witness answered, "I guess that is the reason for it, yes, sir. * * * All the time Mr. Martin has asked me to tell the truth, and nothing but the truth." "I asked them for the money, and he paid for my family's support and rent." Witness said that Weitz and Silverberg wanted the Republican senators, and that he, witness, agreed to it; that they gave him no money for it; that his sister was doing almost everything he asked her to; that the deal was to be carried out mostly on the counting; that everybody was in on it; that his sister did the counting of the ballots herself. The witness further testified that Martin never offered him any inducement to tell the story that he did upon the witness stand; that the last time he talked to Martin was about the beginning of December; that Francis said he would take care of him; that
Francis was going to see that he got a job in the juvenile court.
The votes returned from that precinct show as follows as to certain candidates:
For Juvenile Judge
Lindsey, Democratic 548 Graham, Republican 15
State Senator
Bogdon, Republican 141 Downing, Democratic 67 Fairfield, Republican 373 Young, Republican 490
For United States Senator
Adams, Democratic 428 Phipps 98 Sheafroth 516 Means 25
For Congressman
Vaile 359 Edgeworth 92
For Supreme Court Judge
Teller 485 Adams 22
Governor
Sweet, Democratic 529 Morley, Republican 14
Following the foregoing evidence the plaintiffs moved that the ballot boxes in precinct 6, district J, be opened, and thereupon the court said: "The evidence in this case discloses that there was fraud committed in this precinct; that has not been disputed up to this time. This court cannot determine the rights of the parties in this suit without determining the extent of that fraud, and its character. This cannot be done without opening the box."
No other testimony at any time during the trial was introduced. At one time defendant offered to produce and place upon the witness stand to testify Judge Lindsey and Mr. Francis, which offer the court refused because premature, as plaintiffs had not rested their case. No further offer of evidence on behalf of defendant was made.
In denying plaintiffs' motion to reject the entire vote cast in this precinct the court said among other things: "It has not been shown by a preponderance of the evidence in this case, to the satisfaction of the court, that the fraud, if any, committed in Precinct J-6 was of such gravity as to warrant the courts in throwing out the entire vote in that precinct. * * * There is no positive evidence to show that there was any fraud in the counting of these blank ballots. It may have been done by mistake; but even assuming that fraud was committed, this has been purged by the recount. Even assuming that there was evidence of fraud in reference to the recounting of the votes for senatorial candidates, that in itself ought not to be sufficient to require the court to set aside the entire precinct vote, for the reason that the candidates here mentioned are not benefited or harmed by such fraud. * * * Even assuming the entire truthfulness of the witness Unter, that everything he said was true, there would be no sufficient evidence upon which the court could set aside this entire precinct vote."
Defendant does not attack the credibility of the witnesses Otter, McCullough and Carroll, but does strenuously assail the credibility of the witness Unter.
This case is not one presenting the question of the court's findings upon conflicting evidence. Here there is no conflict in the evidence. It is a question merely of the weight and sufficiency of the evidence. The defendant charges that Unter was unworthy of belief; that he was a perjurer and that the trial court did not believe his testimony. In saying that the trial court disbelieved the testimony of Unter the defendant is in error. The trial court apparently did believe the testimony of Unter,
as shown by the fact that after all of the testimony was introduced, on the strength of that testimony the court found that fraud had been committed and ordered the ballot boxes opened.
The defendant must, in fact does, concede that if Unter was a reliable witness, and his testimony true, fraud was established, for counsel in their brief say: "We have said that there is no testimony, direct or circumstantial, showing fraud, outside that of the witness Unter, and we have said that the witness Unter was a suborned perjurer;" and again, "Without the testimony of Unter the case of the relators collapses." It is worthy of note that defendant also concedes that irregularities did occur in this precinct, for counsel say, "It may be that it is irregular for persons other than the sworn judges to count any part of the ballots, but the fact is that in the haste and excitement attendant upon getting the returns for anxious candidates, the assistance of bystanders is enlisted in the count. It may be that mistakes in the count occur as a result, but a recount such as was had in the court below remedies whatever mistakes may have occurred."
In addition to the charge made against Unter that his testimony was bought and paid for, it is charged that his statements upon the witness stand were inconsistent with themselves; that he related in his testimony the occurrence of things during election day and evening, in this precinct, that were improbable at least, in fact impossible of accomplishment, and that he was an election crook. They sought to show this by asking the question: "You had been a confirmed election crook, you mean, is that right?" The witness did not answer this question directly, but seems not to have denied that he had been. This is quite helpful, as it tends at least to show that the witness had the necessary experience and qualification for the task which he set about to perform at the election in this precinct.
Section 7691, C.L. 1921, provides that the counting judges and their clerks and the watchers must take an
oath that they will not in any manner make known to anyone the result of the votes as they are being counted until the polls are closed, and that all other persons shall be excluded from the place where such counting and canvassing is being carried on, until the close of the polls.
Section 7692, C.L. 1921, provides, inter alia, that whenever ballot boxes are moved from one room to another they shall be under the constant observation of at least one of the counting judges.
Section 7744, C.L. 1921, provides that any voter who declares under oath that by reason of physical disability he is unable to prepare his ballot without assistance shall, upon his request, receive the assistance of any two of the election judges or clerks who are of different political parties in the marking of the ballot, and that such officers shall certify on the outside thereof that it was so marked with their assistance; that the judges are qualified to administer such oath, and that a memorandum shall be made on the poll lists of every instance when an oath is administered to a voter, stating what facts were sworn to, the name of the affiant, and the names of the judges or clerks who aided the voter in the preparation of his ballot; that no voter shall ask for or receive the assistance of any person within the polling place in the preparation of his ballot, except as in the statute provided.
Section 7745, C.L. 1921, provides in substance that no election official or other person shall be allowed to enter any election booth for the purpose of assisting the voter in preparing his ballot, or for any other purpose while the booth is occupied by a voter, except in case of absolute and total physical disability on the part of the voter which makes it impossible for him to mark the ballot; that then and in that case the voter shall first state under oath his physical disability; that the oath shall be administered by an election judge; that the disability must be stated in writing and duly sworn to; that the voter shall then be accompanied into the booth by two judges or a judge and clerk, each of the opposite
political faith, who may mark his ballot as the voter shall indicate; that a notation shall be made in the poll books opposite the name of each voter thus assisted stating that he has been assisted; that the oath shall be obtained by the election officials and filed with their returns at the same time the election returns are made.
We have carefully read the record of the entire evidence as presented in the abstracts, and find that it reveals a most regrettable and astounding condition which prevailed during the election day and evening, a condition which must receive our most emphatic disapproval. The whole conduct of the judges and clerks of election in that precinct shows gross negligence, and a total disregard of their official duties. Doubtless they were intimidated and made afraid by the boisterous and riotous conduct of men who were permitted to gather in the rooms and voting booths, but this does not excuse them, nor did it relieve them of the duty to observe the law in the conduct of the election. If this testimony is to be believed, great disorder and confusion prevailed there on election day from eight o'clock in the morning until the last ballot was counted in the evening. The statutes were flagrantly violated and wholly disregarded; unauthorized persons were permitted to enter the voting booths with voters to assist them in marking their ballots when no assistance was asked for, and no oath of the voter that he needed or desired assistance; persons were permitted to enter the room of the counting judges and assist in the counting of the ballots during the prohibited hours from eight in the morning until the closing of the polls, and thereafter; information was given out by the counting judges, and information permitted to be obtained during the prohibited hours as to how the count stood; there was no pretense of excluding, during the hours mentioned, persons who had no right to be present, from the room where the counting and canvassing was being carried on; no memorandum was made on the poll lists of any instance when an oath was administered to a voter, if any oath was administered; no
notation was made in the poll books opposite the name of any voter assisted, stating that he had been assisted; no such oath was obtained by the election officials and filed with their returns, although it appears that a considerable number of voters were assisted, and all without any observance of the formalities required by the statute. It further appears that the judges accepted as official the count made by unauthorized persons, and further, that one of the judges several times offered to take fifty votes off one candidate and give them to another. This offer, while very accommodating and generous, was wholly unwarranted, unlawful and fraudulent.
Whether these things were done and permitted by design, or through ignorance or negligence, was wholly immaterial, for the result is the same. If the sanctity of elections is to be recognized and preserved, if the secrecy and purity of the ballot are to be secured, and such is surely the design of our statutes, the courts must refuse to sanction such conduct as the evidence shows obtained in this precinct. However, it is not necessary that actual fraud be committed.
The language of Mr. Justice Bailey in Vigil v. Garcia,36 Colo. 430, at page 438, 87 P. 543, 546, is very pertinent: "It is seriously contended that many of the irregularities in this precinct were the result of accident, or occasioned by mere oversight, and that there was no intention to commit fraud. It requires a great deal of credulity to maintain that an election board in a city of the size and intelligence of Trinidad could be so ignorant as not to know that the law was transgressed most flagrantly by every person employed in conducting this election."
And again at page 441 Justice Bailey said: "Here it is found by the trial court, that many persons who were assisted were not sworn as to their ability, and no record of assistance was kept. If this can be permitted, then the provisions of the law are without avail. It will be possible for any number of voters to market their votes and call in the judges to see that the goods are properly
delivered, wherefore this act, made for the preservation of pure elections, will become a machine in aid of corruption."
In that case the court further said: "But, it is said, that there was no fraud intended, and that there is nothing to show that contestor suffered on account of any of these things. This will not avail. The conduct of election officials may, though actual fraud be not apparent, amount to such culpable negligence as to render their doings unworthy of credence. If the misconduct has the effect of destroying the integrity of the returns and avoiding the prima facie character which they ought to bear, such returns should be rejected." Citing McCrary on Elections, §§ 488-540.
This court in that case cited with approval Tebbe v.Smith, 108 Cal. 101, 41 P. 454, 29 L.R.A. 673, a decision from the Supreme Court of California, in which it is said: "In this we are quite willing to believe that the misconduct of the officers of Lake precinct was prompted by nothing worse than ignorance, and lack of appreciation of the responsibility of their position, and we may say further, that no harm is shown to have resulted from this conduct; but looking to the purity of elections, and the integrity of the ballot box, we are constrained to hold that conduct like this amounts, in itself, to such a failure to observe the substantial requirements of the law as must invalidate the election."
This court also in that case cited with approval AttorneyGeneral v. McQuade, 94 Mich. 439, 53 N.W. 944, wherein it was held that the provisions of the election law requiring the voter to enter the booth alone, and prepare his ballot concealed from view, and the section providing for the marking of the ballots of illiterates, are mandatory and must be strictly adhered to. It would require long and diligent research to find a case so nearly decisive of the instant case as the decision of this court above cited. See also Londoner v. People exrel. Barton, 15 Colo. 557, 564, 26 P. 135.
We also call attention to the fact that the judges and clerks of election in this precinct were not called upon to testify. They were in full possession of all the facts, and of all that occurred during election day and evening, and it is a proper subject of comment that they were not called to give their testimony. Their silence may well be treated as a further corroboration of the testimony given. Fries v. People, 80 Colo. 430, 252 P. 341.
In United States v. Mammoth Oil Co., 14 Fed. (2d Series) 705, opinion by Kenyon, Circuit Judge, the court said: "This court has the same right to draw conclusions from the silence * * * of witnesses as has the trial court," citing authorities. And the court further said: "The parties who could explain the same seem to be either conveniently absent * * * or strangely and eloquently silent."
Judge Kenyon, in that case, quoted from Gulf C. S.F. Ry. Co. v. Ellis, 54 Fed. 481, saying: "Now, it is a well-settled rule of evidence that, when the circumstances in proof tend to fix a liability, on a party who has it in his power to offer evidence of all the facts as they existed, and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting, would support, the inferences against him, and the jury is justified in acting upon that conclusion."
Quoting from another case Judge Kenyon said: "As they had it in their power to explain the suspicious circumstances connected with the transaction, we regard their failure to do so as a proper subject of comment."
Another important and significant fact is that Unter was an unwilling witness. He had sought the advice of the district attorney as to whether he could be compelled to give testimony concerning his acts and doings in this precinct on election day. When called to the witness stand he refused to testify until, after strenuous insistence on the part of counsel for defendant, the court compelled him to do so.
We think we should also call attention to the fact that the testimony of Unter is corroborated in many particulars by the evidence of Otter, McCullough and Carroll, as an examination of their evidence will disclose. His testimony is further corroborated by the returns from that precinct showing the votes received by the several candidates as set forth herein. It is unnecessary for us to pass upon the question raised concerning the validity of the 102 ballots marked below the line. As we understand the record, the trial court refused to count these ballots for the defendant, and the plaintiffs therefore have no cause for complaint, and the defendant has not assigned cross errors thereon.
The trial court said that if any fraud was committed it was purged by the recount. This cannot be so. No attempt was made by the trial court to separate the legal from the illegal votes cast for the office of juvenile judge, and indeed, any attempt to do so would have been abortive in view of the evidence, and the recount could not purge the fraud which is shown by the evidence to have been committed.
As to the question raised concerning the substitution of Mrs. Graham as relator, we need only say that we are entirely satisfied with our action heretofore taken in that regard, and see no reason to change our former ruling allowing the substitution.
We think the trial court erred in overruling plaintiff's motion to reject the entire vote cast in precinct 6 in district J for the candidates for juvenile judge. We think it is impossible to separate with reasonable certainty the legal from the illegal votes for that office, and the vote from that precinct should be excluded. The motion should have been sustained.
The judgment is reversed, and the case remanded with instructions to the trial court to reject from the count the entire vote cast in precinct 6 in district J, and render judgment of ouster as prayed.
MR. JUSTICE BUTLER not participating.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE CAMPBELL dissent.