Hope v. Flentge
| Decision Date | 29 June 1897 |
| Parties | Hope v. Flentge, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.
Affirmed.
B. F Davis, E. D. Hays, and Wilson Cramer for appellant.
(1) Contestee's motion for an order on the county clerk to open and recount all of the ballots cast for him at Appleton and Friedheim precincts should have been sustained. (2) In his notice contestor objects to the vote of Hy. Belderman (Bueltemann) who is alleged to have voted for contestee. All of the evidence offered by contestor at the trial, which was objected to, relates to the nonresidence of Robert Bueltemann, a brother of Henry, whose vote is not challenged. The court erred in admitting this testimony and in deducting the vote of Robert Bueltemann from contestee's total. (3) A. N. Payne and E. W. Nelson, both of whom came from other counties to attend the Southeast Missouri Normal School at Cape Girardeau and were students at the time, were not qualified voters. Const. Mo., art. 8, sec. 7; In re Goodman, 146 N.Y. 284; In re Garvey, 147 N.Y 117. (4) The court erred in refusing to allow contestee to introduce evidence in support of the assignment that at Burfordsville and Crump precincts the judges of election assisted in making out ballots without requiring an oath, as provided by law, that the voter could not read nor write, or by reason of physical disability was unable to mark his ballot. This requirement of the statute is mandatory. The voter who accepts assistance when not entitled is particeps criminis and should lose his vote. Acts 1893, sec. 1; Majors v. Barker, 35 S.W. 543; Ellis v. May, 58 N.W. 483. (5) The court erred in refusing to receive evidence offered by contestee to show that at Neeley's Landing and Crump precincts the democratic judges of election entered the booths and assisted voters named in the preparation of the ballots. 1 R. S. 1889, p. 1085, sec. 4784; Acts 1891, p. 135, sec. 10; Acts 1893, p. 164, sec. 1. (6) This statutory provision is mandatory. Hall v. Schoenecke, 128 Mo. 661; Major v. Barker, 35 S.W. 543; People v. Board of State Canvassers, 29 N.E. 327 (329). (7) Forty-eight ballots were objected to by contestor, and were excluded and not counted by the court, for the sole and only reason that the name of the candidate for sheriff on the Independent ticket -- the only name appearing on that ticket, was not erased, or, as expressed in the language of the objection itself "because it appears upon inspection of the ballot that two of the groups printed on it are not scratched, being the Republican and Independent not scratched." Under the law these ballots were legal and valid ballots for all persons named on the ticket, excepting the candidate for sheriff, and should have been counted for this contestee as a candidate for the office of collector. Gumm v. Hubbard, 97 Mo. 311; Lankford v. Gebhart, 130 Mo. 621; Kreitz v. Behrensmeyer, 17 N.E. 232; Blankship v. Israel, 24 N.E. 615; State v. Foxworthy, 45 N.W. 632; Wimmer v. Eaton, 34 N.W. 170; Brown v. McCullom, 41 N.W. 197. (8) The section of the statute in reference to the marking of ballots is purely directory; it nowhere provides that a ballot not prepared as directed shall not be counted. Acts 1893, p. 155, sec. 3; Hall v. Schoenecke, 128 Mo. 661; Lankford v. Gebhart, 130 Mo. 621.
J. W. Limbaugh and W. H. Miller for respondent.
(1) Ballots marked rejected are presumed to have been properly rejected, and the burden of proof is on the party claiming that they were illegally rejected. Zeiler v. Chapman, 54 Mo. 502. (2) The court committed no error in refusing to disfranchise the various voters so challenged by contestee, because of a failure on the part of the election judges to perform a statutory duty, there having been no charges of fraud made in the notice served, nor for that matter at the trial. Bowers v. Smith, 111 Mo. 45. (3) Statutes regulating elections should be given such constructions as will secure more firmly the rights of 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 endanger the right of suffrage by putting the result within the control of ignorant, 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. 225; Cooley's Const. Lim., secs. 612 and 771; Hall v. Schoenecke, 128 Mo. 668; Hanscomb v. Lockhart, 31 S.W. 547; R. S. 1889, sec. 4784, as amended in Acts of 1891, p. 134; Nash v. Craig, 134 Mo. 347. (4) All those ballots upon which the "Independent Ticket" was not erased were properly rejected, because the voting was not done in the manner prescribed by statute, not being in one group. R. S. 1889, sec. 4773, as amended in Acts of 1891, p. 135. (5) The court committed no error in holding that Nelson and Payne, the two students at the Southeast Missouri Normal School, were competent and qualified voters, the question of their residence being one of fact. Hall v. Schoenecke, supra; Lankford v. Gebhart, 130 Mo. 622. (6) The clerk of the county court having, in pursuance of writs regularly issued, the validity of which is not contested, made a recount as therein shown, his certificate is prima facie evidence of the truth of the matter as stated, and is so made by the statute. R. S. 1889, sec. 4726.
OPINION
In Banc.
-- This is a case of contested election under the laws of this State for the office of collector of the revenue of Cape Girardeau county, to which appellant, Flentge, received the certificate of election at the general election held November 3, 1896, the official count by the county clerk showing that appellant and contestee received 2,449 votes and the contestor and respondent 2,440 votes. The official ballot for said election in said county contained eight distinct tickets, grouped under the following different headings or captions: "Democratic Ticket," "Republican Ticket," "People's Ticket," "Prohibition Ticket (nominated by electors)," "Socialist-Labor Ticket (nominated by electors)," "Palmer-Buckner National Democratic Ticket (nominated by electors)," "National Ticket (nominated by electors)," and "Independent Ticket (nominated by electors)."
Edward W. Flentge was the Republican candidate for collector and E. L. Hope was the nominee of both the Democratic party and the People's party.
In the time allowed by statute the respondent Hope gave notice of contest, assigning two grounds: First, that twelve persons whose names were given and charged to have voted for Flentge, the contestee, were not legal voters. Second, that by mistake of the election officers, forty votes cast for contestor, Hope, at Steimel precinct were not counted for him.
And thereupon in due time the contestee Flentge served the contestor with notice of a counter contest. The grounds of which are:
First. That twenty-three persons named who voted for respondent were not legal voters.
Second. That at fourteen specified precincts a certain number of legal and valid ballots cast for appellant were unlawfully rejected and not counted for him.
Third. That the judges of election unlawfully failed to count forty-one votes cast for him at Steimel's precinct.
Fourth. That the ballots of Robt. Foster and others (twenty-six in number) cast and counted for respondent at Neeley's Landing precinct, were illegal and void, because the Democratic judge of election entered the booths and assisted the preparation of said ballots.
Fifth. That the ballots of W. F. Points and others (sixty in number) cast and counted for respondent at Burfordville precinct were illegal and void, because prepared by the judges of election without oath being first made by the electors as to their inability to read or write, etc.
Sixth. That the ballots of Ed. Turner and Wm. Welch, cast and counted for respondent at the court house precinct, were illegal and void, because prepared by the judges without an oath of disability on the part of the electors.
Seventh. That the ballots of Hy. Penturf and others (seventy in number), cast and counted for respondent at Crump precinct, were illegal and void, because prepared by the judges of election without an oath of disability by the electors, and because the democratic judge of election entered the booths and assisted in the preparation of the ballots.
At various precincts in the county the election officers refused to count and rejected those ballots which contained two groups unscratched, thus those in which the Democratic or Republican group and the Independent group were neither scratched. This action forms the basis of the second ground of contest in the counter contest of the appellant Flentge.
Copies of the official ballot and of the rejected ballots accompany this statement.
On the application of the contestor, Hope, there was a recount by the county clerk of the ballots cast at Steimel precinct, and on the application of contestee a recount of all the precincts. The county clerk made separate certificates under the two orders.
At the January term, 1897, a trial was had and a judgment rendered in favor of the contestor Hope, the court finding that he had received a majority of twelve votes. A motion for new trial was made and overruled and an appeal taken to this court.
Upon the record in the cause appellant Flentge submits for review the following points:
First. The act of the court in overruling the motion for a recount of the votes at Friedheim and Appleton precincts.
Second. The ruling on the vote of Robt. Bueltemann.
Third. The ruling on the votes of A. N....
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