dissent">CARMODY, District Judge

(dissenting).

My disagreement is not so much with the rule of law as announced by the majority, as the fact that the holding of the majority is based on something more than the record itself. The majority speaks of the ballots being “erroneously destroyed” and also “it is generally understood that the Election Officials burned all the ballots, both used and unused,” whereas, a minute and very careful examination of the record fails to disclose any information whatsoever as to what happened to the ballots of Precinct No. 17, if there ever were any. From the record, the only material facts that we can gleam as to the missing ballots, are that there could be no recount in Precinct No. 17 as there were no ballots found therein, and that, according to the certificate of the ■County Commissioners, there was no material evidence of fraud on the part of the election officials of Precinct No. 17.

In both the Kentucky and Massachusetts cases, cited by the majority, there were in the record, circumstances as to what occurred with reference to the missing ballots, but here, unless the Court is to consider newspaper accounts and statements of counsel, neither of which are evidence, the circumstances with reference to the unavailability of the ballots are a blank page.

The effect of the majority opinion is to place in the Board of County Commissioners, sitting as a Canvassing Board, and also in the State Canvassing Board, the full and complete right and authority to determine whether fraud existed in a case where the ballots are not found in a recount proceeding. Is this the way that the Legislature intended our election laws to be carried out, or did the Legislature intend that a recount proceeding is just exactly what it stated it was, and that is, to recount the ballots that are in the boxes? In my opinion, the granting of such power to the Canvassing Boards, of determining whether fraud exists, or, on the other hand, that there was good faith on the part of the election officials, not only opens the door, but actually invites fraud and fraudulent practices. In the present case, it cannot .even be determined, from the record, that the precinct officials were called in to explain the whereabouts of the official ballots.

Admittedly, a contest is expensive, and the burden would be shifted from the relator, but at least in a contest the question of good faith or fraud on the part of the election officials, can be gone into and made a matter of record in a Court of law, not before some administrative group, such as a Canvassing Board. A contest is certainly the proper means, under existing statutes, to determine a matter such as we have before us. Although I do not mean to say that in a mandamus proceeding such as this, if the material facts were made a part of the record, that the majority opinion would not be absolutely right.

The duty is on the Courts, particularly under our decisions, to see that the voters are not disenfranchised, but I have no way of determining, in this case, whether any voters might be disenfranchised, whether any voters actually voted in Precinct No. 17, or, if they voted, whether a correct tally of their votes was made. Therefore, having no information from the record, I feel that the statute should be strictly complied with, and that the alternative writ should be made permanent.

For the above reasons, I dissent.

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