State ex rel. Miles v. Ellison

• Citation: 190 S.W. 274,269 Mo. 151
• Parties: STATE ex rel. ED. T. MILES and CITY OF MACON v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals
• Decision Date: 04 December 1916
• Court: Missouri Supreme Court

190 S.W. 274

269 Mo. 151

STATE ex rel. ED. T. MILES and CITY OF MACON v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

December 4, 1916

Writ quashed.

Guthrie & Franklin, C. G. Buster, R. S. Matthews, Otho F. Matthews W. B. Hagan and Andrew Field for relators.

(1) The Kansas City Court of Appeals has jurisdiction to decide cases appealable to it according to the "last previous ruling of the Supreme Court on any question of law or equity." Within that limitation the Court of Appeals has jurisdiction. Beyond that it has no jurisdiction. Constitution 1875 Amendment of 1884, sec. 6; State ex rel. v Robertson, 264 Mo. 678. (2) The Supreme Court shall have superintending control over courts of appeals by mandamus prohibition and certiorari. Constitution 1875, Amendment of 1884, sec. 8. (3) General allegations of law or conclusions, whether relating to fraud or other matter, are of no force and effect and not demurrable or traversable and make the pleading in which they occur bad. Break Beam Co. v. Bakewell, 224 Mo. 214; Chemical Works v. Nemnich, 169 Mo. 397. (4) Election statutes are made to preserve and not to destroy the rights of the voter and so long as failure to observe the statutory regulations do not destroy his right, they will not defeat the validity of the election. Where the voters' wills are expressed at the election, violation of the provisions intended to protect him shall not destroy the election. In other words, "the Sabbath was made for man, not man for the Sabbath." So, the statute was made to secure fair elections and not to defeat them. (5) Notice of contest in an election case must be judged by the rules pertaining to the sufficiency of a petition and hence must state a cause of action to give the court jurisdiction. Hale v. Stinson, 198 Mo. 145; State ex rel. v. Hough, 193 Mo. 615; Costello v. Circuit Court, 28 Mo. 264. (6) Contestant's notice must set forth the particular facts relied upon as invalidating the election. State v. Spencer, 166 Mo. 271. General averments of the notice are mere conclusions of law. Bowers v. Smith, 111 Mo. 60; 15 Cyc. 405, People v. Glenn County, 100 Cal. 419. Fraud must be particularly pleaded in apt words with every fact and intent constituting it. Loomis v. Jackson, 6 W.Va. 613. There is no averment in the contest notice that any particular voter lost his vote or changed by reason of the alleged conditions. (7) The Australian Ballot Law, article 5 of the Election Law, section 5889 to 5932, has innumerable rules, and the failure to comply with those rules does not void the election where the contestee is not guilty of actual fraud. State v. Roberts, 153 Mo. 125; Hope v. Flentge, 140 Mo. 413; Sanders v. Lacks, 142 Mo. 255; Bowers v. Smith, 111 Mo. 58; Hall v. Schoenecke, 128 Mo. 668; State ex rel. v. Smith, 129 Mo.App. 56. (8) The election laws should be liberally construed with reference to upholding the election. Nance v. Kearbey, 251 Mo. 383; Hale v. Stimson, 198 Mo. 146; State ex rel. v. Hough, 193 Mo. 615. (9) The provisions of the statutes governing the conduct of elections are per se mandatory only where the Legislature has declared that a departure from the prescribed methods shall avoid the election. Hope v. Flentge, 140 Mo. 390; Langford v. Gebhart, 130 Mo. 628; Gaston v. Lamkin, 115 Mo. 24; Bowers v. Smith, 111 Mo. 61; State ex rel. v. Frazier, 98 Mo. 429; Ledbetter v. Hall, 62 Mo. 423. (10) Booths are merely one of the many requirements of the election laws. The failure of an officer to do his duty and supply the same does not vitiate the election. There must be more than a failure to have booths and that must be pleaded and stated and show a fraudulent result. Skelton v. Ulen, 217 Mo. 393. The fact of the judge entering the booth, which is forbidden in the same section, did not vitiate the matter, as it was without fraud. Hope v. Flentge, 140 Mo. 413. So other apparently vital matters. Sanders v. Lacks, 142 Mo. 255; Bowers v. Smith, 111 Mo. 60. (11) The right to vote is constitutional and the statute is made only for the purpose of preserving that right and making it secure, and where violations of these regulations do not in fact deprive the voter of his constitutional right they cannot avoid the election, and thus destroy his constitutional right.

Charles P. Hess and Whitecotton & Wight for respondents.

(1) One of the cases that relators seem to rely on in support of their contention is the case of Skelton v. Ulen, 217 Mo. 393. We insist that this case does not sustain relators' contention that the absence of booths will not avoid an election. The contention in this case is that there was a total disregard of the state election laws in the holding of the local option election and this being so the election was void, there being no election. This view is supported by the holding of this court in case of Gaston v. Lamkin, 115 Mo. 20. (2) Under these opinions it was not necessary for the contestants to aver in addition to the fact that the election was not held in compliance with the laws, that "any one person failed to vote secretly or to make out a secret ballot and that the election was not in effect secret." (3) The first of the contentions of the relator is that respondent must allege that the manner of holding the election resulted in actual fraud and that respondent must allege in what way it was fraudulent. No court has held this to be the law. It would be impossible to prove such an allegation of fraud.

REVELLE, J. Graves, C. J., Walker, Faris, and Blair, JJ., concur; Bond, J., concurs in result for want of jurisdiction; Woodson, J., dissents.

OPINION

In Banc.

Certiorari.

REVELLE J.

This is an original proceeding by certiorari to quash a judgment of the Kansas City Court of Appeals reversing a judgment of the circuit court of Macon County, Missouri, which latter judgment was rendered on the pleadings in a certain case wherein one Ed. T. Miles was seeking to contest a local option election held in the city of Macon, on December 8, 1913. [Miles v. Macon, 193 Mo.App. 306, 186 S.W. 10.] The notice of contest, which in such cases fills the office of a petition and to which contestee successfully demurred, attacked the election upon the ground, among others, that the same was not held in compliance with the Australian Ballot Law, but in conformity to a city ordinance whose provisions are in conflict with the election laws of the State. The requirements of the general law, not exacted by the ordinance, and which it is alleged were totally disregarded and violated in the election held, are those contained in sections 5897, 5898 and 5919, Revised Statutes 1909. The specific complaint is that no booths or compartments or other conveniences to enable the voter to prepare and cast a secret ballot were furnished; no writing materials or other supplies and conveniences were provided with which the voters could erase the clause against which they desired to vote and that no instructions for the guidance of electors were printed and posted; that many persons were in the polling places preparing ballots for the voters, and electioneering against the sale of liquor; and that by reason of all these matters the voters were deprived of a free and fair opportunity to cast a secret ballot and vote their real sentiments.

We have no original appellate jurisdiction of this cause and our review is limited to the question of whether the Court of Appeals in holding as it did went contrary to the last previous rulings of this court. While this court has recently done considerable writing and its members expressed divergent views as to what constitutes our record in cases of this class, we all yield assent to the one proposition that the courts of appeals are courts of last resort, and when acting within their jurisdiction and not in violation of our decisions, can decide cases as their judgment dictates, and in so doing can, without interference on our part, commit error and decide incorrectly, just as we can. [State ex rel. Delano v. Ellison, 181 S.W. 78; State ex rel. Pedigo v. Robertson, 181 S.W. 987; State ex rel. Iba v. Ellison, 256 Mo. 644, 165 S.W. 369; Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072; Harrison v. Jackson County, 187 S.W. 1183.]

If the Court of Appeals did not run afoul our decisions in holding that the election was invalid for the reasons heretofore stated and that the contestant should not be permitted to dismiss the action under the circumstances hereinafter stated, our writ must be quashed, for these are the only questions properly presented and legitimately involved. Concerning the first the Court of Appeals says:

"The general rule is that if there is a substantial compliance with the law a vote will not be invalidated or an election annulled even if certain provisions regarding the manner of the holding of the election are violated unless the statute itself provides that such violation shall have that effect; that in the absence of such a provision a failure to follow some of the many provisions of the Australian Ballot Law, which failure does not violate the general spirit and controlling object of the law, will not, in the absence of fraud in perpetration and result be held sufficient to invalidate the election, but will be regarded only as a mere irregularity. On the other hand, if there is a total disregard of the law, or a wilful violation of the general spirit and controlling purpose thereof, then this is sufficient to annul the election. [Hall v. Schoenecke, 128 Mo. 661, 31 S.W. 97; Gaston v. Lamkin, 115 Mo. 20, 21 S.W. 1100; State ex rel. v. McMillan, 108 Mo. 153, 18 S.W. 784; O'Laughlin v. City of Kirkwood, 107 Mo.App. 302 81 S.W. 512; State ex rel. v. Seibert, 116 Mo. 415, 22 S.W. 732; Bowers v....