Nash v. Craig

Citation35 S.W. 1001,134 Mo. 347
PartiesNash v. Craig, Appellant
Decision Date26 May 1896
CourtUnited States State Supreme Court of Missouri

35 S.W. 1001

134 Mo. 347

Nash
v.
Craig, Appellant

Supreme Court of Missouri, First Division

May 26, 1896


Appeal from Buchanan Circuit Court. -- Hon. A. M. Woodson, Judge.

Affirmed.

K. B. Randolph and Brown & Pratt for appellant.

(1) The court erred in overruling the motion of contestee to strike out the amended notice of contest filed by the contestor, and also erred in overruling the objection made by contestee to the introduction of any testimony under the amended notice of contestor. The election was held November 6, 1894. The original notice of contest was served by contestor on contestee November 27, 1894. Contestee then served his notice on contestor on the thirty-first day of December, 1894. Circuit court convened January 7, 1895, on which day contestor served on contestee his amended notice of contest. This was sixty days after the election, and the said notice under the law should have been stricken out. Laws, 1893, page 156, provides that "no election of any county or township officers shall be contested unless notice of such contest be given to the opposite party within twenty days after the votes shall have been officially counted. The notice shall specify the grounds upon which the contestant intends to rely, and if any objection be made to the qualifications of any voters the names of such voters and the objection shall be stated therein." Bowen v. Hixon, 45 Mo. 344; Castello v. Circuit Court, 28 Mo. 259; Wilson v. Lucas, 43 Mo. 290; Applegate v. Eagan, 74 Mo. 258; Sone v. Williams, 130 Mo. 530. (2) The filing of the amended notice constituted an abandonment of the original notice and contestor stood at the time of the trial without any notice of contest whatever. Roberts v. Insurance Co., 26 Mo.App. 92. (3) Courts of general jurisdiction when engaged in the exercise of special and limited, or statutory powers are confined strictly to the authority given and jurisdiction must appear upon the face of their entire proceedings. McQuillin's Pleading and Practice, sec. 140; City of Kansas v. Ford, 99 Mo. 91. (4) The contestor's original notice of contest was fatally defective because it does not state when the votes were officially counted, or that they ever were officially counted, and was served twenty-one days after the date of the election. This matter is jurisdictional and should appear on the face of the notice. (5) The finding of the court upon the facts was erroneous. The burden was on the contestant to show that the ballots have been preserved in the manner required by statute, and this he failed to do. See Sone v. Williams, 130 Mo. 530; also, R. S. 1889, sec. 4672. (6) The trial court erred in sanctioning the recount of the ballots made by the deputy of the county court appointed for that purpose. The recount should have been made by the county clerk himself. If discretion and judgment are to be exercised either as to the time, manner, or feasibility of the exercise of an official function, the body or officer intrusted with the duty to decide must exercise it, and can not delegate it to any other officer, body, or person. Thompson v. Boonville, 61 Mo. 282; Shechan v. Gleeson, 46 Mo. 100; Potts v. Henderson, 2 Ind. 327; Ruggles v. Collier, 43 Mo. 353; City to use v. Clements, 43 Mo. 395.

Hall & Woodson, Huston & Parrish, Casteel & Haynes, and J. W. Boyd for respondent.

(1) The trial court did not err in permitting contestant to file the amended notice. McCrary on Elections [3 Ed.], sec. 406; Election Case, 65 Pa. St. 20. The public interests imperatively require that the ultimate determination of the contest should in every interest if possible reach the very right of the case. Minor v. Kidder, 43 Cal. 229; Dobyns v. Weadon, 50 Ind. 298. (2) The duty of the county clerk in making the recount is simply ministerial. State ex rel. v. Garnesche, 65 Mo. 480; State v. Lafayette Co. Ct., 41 Mo. 224; State v. Williams, 95 Mo. 159. Such duty being ministerial could be performed by a temporary deputy employed by the clerk for that purpose and the clerk could legally certify the result. See St. Louis v. Oeters, 36 Mo. 463; Kefferstein v. Knox, 56 Mo. 186; City v. Morris, 43 Mo.App. 586. (3) Upon the hearing of the motion to quash, a large amount of testimony was taken -- the evidence tended strongly to sustain the certificate of the clerk. The court, in passing upon this motion, was obliged to pass upon the weight of the testimony and the credibility of the witnesses, and the overruling of the motion was a finding of the facts against the appellant's contention, and in such case the court will not interfere. State v. Bank, 80 Mo. 626; McCarthy v. Railroad, 92 Mo. 536; Coppersmith v. Railroad, 51 Mo.App. 365. (4) The trial court in its finding of facts found "that the ballots had not been tampered with in any manner, at any time, or at any place -- that all of the election judges, clerks, and messengers who returned the poll books, registration books and ballots, acted in the utmost good faith so far as the evidence shows, and there is no evidence to the contrary." The evidence abundantly supports this finding and it is conclusive on this court. Sone v. Williams, 32 S.W. 1016; Lankford v. Gebhard, 32 S.W. 1127; Murphy v. Battle, 155 Ill. 182.

OPINION

[134 Mo. 350] Macfarlane, J.

This is an election contest over the office of clerk of the county court of Buchanan [134 Mo. 351] county. The parties were opposing candidates for said office at the election held on the sixth day of November, 1894. According to the official canvass of the vote by the election officers, completed on the tenth of said month, Craig received five thousand, six hundred and sixty and Nash five thousand, six hundred and fifty-nine votes. Craig received a certificate of election. On the twenty-seventh of November, 1894, Nash served Craig with a notice of contest specifying the grounds upon which he would rely.

On the twenty-eighth day of December, 1894, Nash applied to the clerk of the circuit court of said county for an order upon the county clerk to open, count, compare with list of voters and examine the ballots. The order was made and the fifth day of December was fixed as the time for beginning such examination and count.

It appears that there was a contest also over the election of most of the other county officers. An order for a recount was made in each case and the same day fixed for the hearing. All the contestants and their attorneys appeared and one examination was made to answer the purpose of all. A stenographer of the county clerk was also present and a special deputy was brought in by the clerk to assist in the examination and recount.

According to the examination and count of the clerk, which was concluded on the twenty-fourth of December, 1894, Nash received five thousand, eight hundred and twenty-seven and Craig five thousand, seven hundred and fifty-two votes.

On the thirty-first day of December, 1894, Craig served upon Nash a counter notice of contest giving the grounds upon which he would rely.

At the January term of the circuit court, 1895, contestee, Craig, filed a motion to quash the return or [134 Mo. 352] report of the county clerk. The chief grounds of this motion were, that the examination and count were made principally by a deputy clerk and by a clerk employed especially to assist in the work; and that other persons than contestant, contestee, and their attorneys were permitted to be present during the examination. The motion...

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2 cases
  • State v. Baird
    • United States
    • Missouri Court of Appeals
    • October 14, 1924
    ... ... Canvassing officer's duty is ministerial, and not ... judicial. State ex rel. v. Williams, 95 Mo. 159; ... Nash v. Craig, 134 Mo. 347; State ex inf. v. Moss, ... 187 Mo.App. 151. Canvassing board's duty being purely ... ministerial, they cannot pass on ... ...
  • Phelps v. Fenix
    • United States
    • Missouri Supreme Court
    • December 5, 1939
    ... ... to set up a new and distinct ground of contest, should have ... been stricken as to that ground. Sec. 10339, R. S. 1929; ... Nash v. Craig, 134 Mo. 347; 20 C. J. 234, sec. 310 ... (5) The fact that contestee gave no notice of counter contest ... does not prevent him from ... ...

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