The State ex rel. Hollman v. McElhinney

• Decision Date: 13 September 1926
• Docket Number: 27535
• Parties: The State ex rel. Louis H. Hollman v. Robert W. McElhinney and J. C. A. Hiller, Election Commissioners of St. Louis County
• Court: Missouri Supreme Court

286 S.W. 951

315 Mo. 731

The State ex rel. Louis H. Hollman v. Robert W. McElhinney and J. C. A. Hiller, Election Commissioners of St. Louis County

No. 27535

Supreme Court of Missouri

September 13, 1926

Peremptory writ ordered.

Henry Kortjohn for relator.

Jos C. McAtee and Julian C. Holster, Jr. for respondents.

Atwood J. All concur, except Walker and Graves JJ., absent.

OPINION

ATWOOD

The application and return filed herein show that at the regular primary election held in August, 1926, for the purpose of choosing nominees for office, relator and one Frank G. Weiss each sought the Republican nomination for the office of Constable of Bonhomme Township in St. Louis County Missouri. At said nominating election relator was declared nominated by a majority of five votes and this result was certified by respondents, constituting the Board of Election Commissioners of said county, on August 11, 1926, pursuant to the provisions of Section 4844, Revised Statutes 1919. On the following day Weiss, who was the only other candidate for said nomination, filed in the office of said Board of Election Commissioners a petition charging fraud, misconduct and irregularities in the count of the ballots and in the returns thereof, and asking for a recount of the ballots cast in all fifteen precincts in said township, said petition being duly verified by the said Weiss and copy thereof being served upon relator herein. On September 2, 1926, respondents met, heard objections urged by relator herein, who appeared in person and by attorney, against the opening and recount of ballots as prayed in said petition, overruled said objections and set September 9, 1926, as the date upon which they would open and commence a recount of said primary ballots. Relator asks us to prohibit said Board of Election Commissioners from opening and recounting said ballots.

Respondents say they are authorized to proceed by an act of the General Assembly found on pages 329, 330, Laws 1921, which provides: "If at any time within five days after any canvassing board shall certify the result of its canvass, as provided by Section 4844 of the Revised Statutes of Missouri, 1919, any person who was a candidate for any nomination or a candidate for committeeman at said primary election and who desires to challenge the correctness of the count and returns for the office for which he was a candidate, shall file with said canvassing board an affidavit alleging and charging that fraud, misconduct or irregularities in the count of said ballots or in the returns thereof was committed in any one or more of the precincts or voting districts of any city or county in this State at the said primary election, the said canvassing board or any two or more of them may in their discretion order a recount of the ballots cast in any such precincts or voting districts so affected. Such recount shall be held forthwith at the regular meeting place of the canvassing board and said canvassing board in making such recount shall have the same jurisdiction and authority to pass on the form and determine the legality of the ballots as is possessed by judges of election, but shall not have authority to determine the qualification of voters except that in voting precincts, where the voters are required by law to register, the canvassing board shall compare the voters' names on the poll books with the registration list and no ballots shall be counted except the ballots of persons who are duly registered. And said canvassing board shall order to be brought before it all the ballots, poll books, registration books and statements to the same extent and in like manner as the judges of election had before them in making the count in the precincts." The act further provides that four disinterested electors be appointed to assist in the opening and recounting of said ballots, that each candidate for the nomination may be present in person or by representative to witness the recount, that all present shall preserve the secrecy of the ballot, that the canvassing board's certificate of returns on such recount be taken and accepted as the official certificate of said returns, superseding the results included in the previous count and canvass, and that any evidence obtained of fraud or violations of criminal laws shall be presented to the proper authorities in charge of the prosecution thereof.

From respondents' return and the copy of the affidavit and petition thereto attached seeking a recount of the ballots, it appears that the charge of fraud, misconduct and irregularities consists mainly of allegations that the judges and clerks of election in each of said fifteen precincts counted legal and regular ballots against affiant and for his opponent which were cast for affiant; counted irregular and illegal ballots as legal and regular ballots for affiant's opponent; did not count for affiant legal and regular ballots cast for him and omitted same in the return of votes to the Board of Election Commissioners; rejected legal and regular ballots for affiant without any legal reason and excluded them in the returns; and made errors, mistakes and inaccurate returns, and permitted the attendance and participation in the count of unauthorized persons. Presumably the judges and clerks of election upon completing the count and before making their return to the Board of Election Commissioners, closed and sealed the ballots as provided by statute. Manifestly this proceeding contemplates that these seals be broken and the ballots cast in these fifteen precincts "be opened, examined, counted, compared with the list of voters" -- which the Constitution permits to be done only in certain specified instances, as we shall presently see.

Relator affirms that this act is unconstitutional. The first ground of unconstitutionality urged is that Section 3, Article 8, of Constitutional Amendment number 9, adopted February 26, 1924, prohibits the opening of ballot boxes except as therein provided, and that the terms of this 1921 statute do not come within these constitutional provisions. The section reads:

"All elections by the people shall be by ballot. Every ballot voted shall be numbered in the order received and its number recorded by the election officers on the list of voters opposite the name of the voter who presents it. All election officers shall be sworn or affirmed not to disclose how any voter shall have voted: Provided, that in cases of contested elections, grand jury investigations and in the trial of all civil or criminal cases in which the violation of any law relating to elections, including nominating elections, is under investigation or at issue, such officers may be required to testify and the ballots cast may be opened, examined, counted, compared with the list of voters and received as evidence."

Prior to the...