Bowers v. Smith

• Citation: 20 S.W. 101,111 Mo. 45
• Parties: Bowers, Appellant, v. Smith
• Decision Date: 20 June 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 101

111 Mo. 45

Bowers, Appellant, v. Smith

Supreme Court of Missouri

June 20, 1892

Appeal from Pettis Circuit Court. -- Hon. Richard Field, Judge.

The official ballot mentioned in the opinion (omitting immaterial parts) is as follows, viz.:

STATE COUNTY AND TOWNSHIP TICKET, PETTIS COUNTY, MISSOURI.

DEMOCRATIC.

REPUBLICAN.

UNION-LABOR.

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For Sheriff.

For Sheriff.

For Sheriff.

J. A. Bowers.

Ellis R. Smith.

G. D. Sappington.

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(The blanks in the ballot, indicated above by asterisks, were filled in the original with the names of the several party nominees for the various state, county and township offices.)

The other material facts appear in the opinion.

Affirmed.

Jackson & Montgomery and Charles E. Yeater for appellant.

(1) The violation of a statutory provision for the conduct of elections, which is mandatory in its nature, will avoid the election to the extent of the violation, without regard to the motive of the persons guilty of the violation, and without any inquiry into the effect of the result of the election. 6 American & English Encyclopedia of Law, 325; Gumm v. Hubbard, 97 Mo. 311; Keller v Toulme, 7 S. Rep. 508; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; State v Cook, 41 Mo. 598; McCrary on Elections [3 Ed.] sec. 190. (2) Section 4673, Revised Statutes, 1889, provides that only one polling place shall be had and one set of judges and clerks appointed for each precinct, and the holding of two polling places in a precinct with two sets of judges and clerks renders the vote of the precinct invalid and illegal. McCrary on Elections [2 Ed.] 108; [3 Ed.] sec. 249; Sloan v. Rawles, 43 Congress. (3) The judges and clerks of the two polling places in the Sedalia city precinct were not de facto officers, for the reason that a de facto officer necessarily presupposes the existence of a legal office which might be filled by a de jure officer, and the creation of the two polling places in violation of the mandatory provisions of section 4673, Revised Statutes, 1889, could not constitute legal officers for the maintenance of such illegal polling places. Jester v. Spurgeon, 27 Mo.App. 477; Ex parte Snyder, 64 Mo. 58. (4) The ballots cast in the Sedalia city precinct did not conform to the provisions of article 3 of chapter 60 on elections, Revised Statutes, 1889, because they contained the names of the candidates of the alleged Union-Labor party, which party had not cast three per cent. of the vote at the last general election, nor had the nomination of the candidates of such party been certified to the county clerk in the manner prescribed by such article, and such ballots cannot be counted under the mandatory clause of section 4671 of such chapter. Gumm v. Hubbard, 97 Mo. 311; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; Price v. Lush, 24 P. 749; Queen v. Parkinson, L. R. 3 Q. B. 11; Mather v. Brown, 1 C. P. Div. 596; Howes v. Turner, 1 C. P. Div. 670; Monks v. Jackson, 1 C. P. Div. 683; Burgoyne v. Collins, 8 Q. B. Div. 452; Wigmore on Australian Ballot System [2 Ed.] 186, 187, and Australian and New South Wales cases cited therein. (5) The certification of the nomination of the candidates of the alleged Union-Labor party was in violation of article 3 of chapter 60, Revised Statutes, 1889, and the names of such candidates should not have been printed on the official ballots; as a result of which such ballots cannot be counted under the mandatory clause of section 4773 of such article. Cases, supra, under 1 and 4. (6) By reason of the fact that the clerk of the county court violated the provisions of article 3 of chapter 60, Revised Statutes, 1889, in placing the candidates of the alleged Union-Labor party on the official ballots, such ballots cannot be counted under the mandatory clause of section 4772 of such article. Cases, supra, under 1 and 4. (7) Article 3 of chapter 60, Revised Statutes, 1889, is not in conflict with those provisions of the constitution which prescribe the qualifications of electors and declare that all elections shall be free and open, and that no power shall interfere to prevent the free exercise of the right of suffrage. Blair v. Ridgely, 41 Mo. 167; Common Council v. Rush, 46 N.W. 951. (8) Section 4778 contains only provisions by which an error or omission in the publication of the names or description of candidates may be corrected by an application which brings the county clerk alone before the circuit or county court, and it does not contain any provision for notifying any person that his right to be a candidate for office on the official ballot is to be questioned or adjudicated.

W. S. Shirk, Bothwell & Jaynes and Sangree & Lamm for respondent.

Statutes regulating elections should be given such construction and application as will secure more firmly the rights of the electors conferred by the constitution and express more accurately the will of the people; and not to allow statutory regulations to be so applied as to impair the right of suffrage by putting the result within the control of ignorant or careless or dishonest officials, and beyond the reach of the courts or the people. Whipley v. McCune, 12 Cal. 352; Fowler v. State, 3 S.W. (Tex.) 225; Cooley's Constitutional Limitations, 612, 771. (1) The court committed no error in striking out contestant's fourth ground of contest. "It may be said that the tendency of the courts, and also of legislative bodies, is not to hold a provision mandatory unless it is clearly of such a character that its violation will tend to prevent a correct determination of the result of the election, unless it is declared in the law that its violation shall render the election void. This is true, even if the language is prohibitory as to the officers, or even if its violation may subject the offending officer to penal liability." 6 American & English Encyclopedia of Law, p. 324; McCrary on Elections [3 Ed.] sec. 190. (2) The court committed no error in striking out the fifth ground of contest. It is inconsistent with the allegations of the third ground. There is nothing in section 4673, Revised Statutes, 1889, in relation to the place of holding the elections; and it cannot be asserted that the election in the Sedalia precinct was held at any unlawful or unusual place. Stemper v. Higgins (Minn.); Davis v. State, 12 S.W. 957. (3) There was no error in striking out the seventh ground of contest, the allegations therein being repugnant to those set forth in the third ground. In all the cases cited by the industrious and accomplished counsel for appellant, construing the so-called Australian-ballot act, there can be found none that holds a ballot illegal or an election void because of an irregularity common to both parties to the contest, affecting both alike, not affecting the result, and not brought about by the contestee.

Barclay, J. Black, Brace and Macfarlane, JJ., concur; Sherwood, C. J., and Gantt, J., dissent. Thomas, J., will express his views in a separate opinion. Thomas, J., dissenting.

OPINION

Barclay

In Banc.

Barclay J. -- This appeal was first heard in division 1, and a conclusion announced, November 9, 1891, as reported in 17 S.W. 761.

After a motion for rehearing was denied, plaintiff moved to transfer the cause to the court in banc. The motion was ultimately sustained, upon the entry of a dissent by one of the judges to the decision of the first division.

The case was then fully reargued before the whole court.

It is a statutory contest to determine the respective rights of the parties to the office of sheriff of Pettis county.

The election in question took place November 4, 1890. Mr. Bowers is the contestant. For convenience, he will be called the plaintiff, and his opponent, Mr. Smith, who is the contestee, the defendant.

Plaintiff's notice of contest assigned several distinct grounds, in as many paragraphs, in the nature of counts, or causes of action. After it was served, defendant gave plaintiff a counter-notice, which (besides denying the plaintiff's charges) alleged a number of objections to the original count of the ballots, and claimed that corrections, to defendant's advantage, should be made therein in a number of particulars.

The circuit court of Pettis county sustained motions to strike out some parts of plaintiff's notice. Exceptions were saved to that ruling.

The case then came to trial. As will appear, the real issues were finally resolved into questions of law, and upon them the trial court found for the defendant.

Plaintiff then appealed, after the usual motions.

After the formal contest began, plaintiff applied for, and obtained a recount, by the county clerk, of the original ballots cast at all the precincts in the county. The recount was conducted as provided by the statute on that subject. Revised Statutes, 1889, secs. 4721-4726. It resulted in an exhibit that defendant had a plurality over the plaintiff of thirty-three votes in the county, and that no less than three thousand voters had cast their ballots in the city of Sedalia at that election.

Both parties rely on the recent statute concerning elections (Revised Statutes, 1889, secs. 4756-4794), commonly known as the "Australian Ballot Law," as first enacted in this state. It is thus conceded to apply to Sedalia as a city of over five thousand population. The points of difference to be determined relate to features of the election in that city, held under that law.

We need not pause to state the particulars of the rulings in the trial court, raising the material questions involved, but shall proceed at once to the merits of the dispute.

Pla...