State ex rel. Goldman v. Hiller
Citation | 278 S.W. 708 |
Decision Date | 04 January 1926 |
Docket Number | No. 26897.,No. 26887.,26887.,26897. |
Parties | STATE ex rel. GOLDMAN v. HILLER. |
Court | United States State Supreme Court of Missouri |
Ralph S. Latshaw, Edward J. Curtin, Ben Terte, and James P. Aylward, all of Kansas City, for relator.
Solon T. Gilmore, Herman M. Langworthy, Charles M. Blackmer, and Francis M. Hayward, all of Kansas City, for respondents.
The first numbered case is one in prohibition against the board of election commissioners of Kansas City, Mo., or, to be more particular, against two members of such board, who asserted the right to open the ballot boxes in 55 precincts of the city, containing the ballots cast at a general city election held on November 3, 1925. This right they claimed, because there was tendered to said board 55 affidavits, all of the following tenor;
The foregoing is the general form of all, and the blanks properly filled. One man, however, signed as many as 12 of them. By their return, the two commissioners urge that such affidavits were sufficient evidence, "proving or tending to prove * * * fraud, misconduct, or irregularities, either in the count of said ballots or in the returns thereof" to order a recount of the ballots, under and by virtue of article 16, § 61, of the Laws of 1921, pp. 365 and 366. It will be seen, therefore, that the two commissioners must have evidence presented to them, "proving or tending to prove, in the opinion of any two or more commissioners, fraud, misconduct, or irregularities." The act, supra, does authorize the opening of the ballot boxes, and a recount of the ballots, and recasting of the results, and this in an open meeting of the board.
Relator was a candidate against L. R. Jewell for the office of councilman at large from the Third district of Kansas City. It is not controverted that, according to returns made by the judges and clerks of election, as said returns were corrected by the board, that relator had 304 more votes than Mr. Jewell; 32 of this majority was added by respondents themselves, by reason of discrepancies shown by the returns.
It suffices to say that, if article 16 of the Laws of 1921, is valid, respondents can open ballot boxes and recount ballots, after they have first found from the evidence presented that there has been "fraud, misconduct or irregularities, either in the count of said ballots or in the returns thereof." To our minds, both cases are of easy solution.
I. It is conceded that, if the proceeding rises to the dignity of an election contest, then the act is void, because all such contests must be heard and determined by a court, or some judge thereof. Article 8 section 8 of Amendment 9, to Constitution (Laws 1925, p. 411). Nor is it seriously contended that, if the preliminary hearing rises to the...
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