State v. Spencer

• Decision Date: 18 June 1901
• Citation: 164 Mo. 23,63 S.W. 1112
• Court: Missouri Supreme Court
• Parties: STATE ex rel. FUNKHOUSER v. SPENCER et al.

63 S.W. 1112

164 Mo. 23

STATE ex rel. FUNKHOUSER v. SPENCER et al.

Supreme Court of Missouri.

June 18, 1901.

ELECTION CONTEST—EXAMINATION OF BALLOTS—COMPARISON WITH LIST OF VOTERS— AUTHORITY OF CLERK OF COURT—AMENDMENT OF ORDER.

1. Under Rev. St. 1899, § 7044 et seq., providing that the clerk of the county court may examine the ballots and "compare them with the list of voters," and permitting the parties and their attorneys to examine the "ballots," the parties have no right to compare the ballots with the list of voters, or be present when the clerk makes such comparison.

2. Under Rev. St. 1899, § 7044, authorizing the clerk of the county court to examine the ballots, compare them with the list of voters, and certify the "result" of such examination and comparison, in election contests, the clerk may only compare ballots with the voting list to ascertain if they were cast by a person whose name appears on such list, and he is not authorized to give the names of the voters and the number of the ballots, so that it may be ascertained how each voter voted.

3. Where a circuit court expressly reserved the right to alter or modify an order, but did not do so, and in a proceeding to prohibit the enforcement of such order the judge appeared to justify it, the reservation of the right to amend was no defense in the prohibition proceeding.

In banc.

Proceeding in prohibition by the state on relation of Robert M. Funkhouser, against Selden P. Spencer, as judge of the circuit court of the city of St. Louis, and others. Preliminary rule prohibiting respondents from carrying out an order of the circuit court made absolute.

John H. Overall and Chas. W. Bates, for plaintiff. W. E. Fisse, G. A. Finkelnburg, and Clinton Rowell, for defendants.

MARSHALL, J.

This is an original proceeding in prohibition to prohibit the respondents from carrying out an order of Hon. Selden P. Spencer, as judge of the circuit court of the city of St. Louis, on the other respondents, as election commissioners of that city, to examine the ballots, and compare them with the voting lists, cast at the general election in the year 1900, in the city of St. Louis, for the office of coroner of that city. Robert M. Funkhouser, the relator, was the Democratic nominee for the office of coroner of St. Louis at the general election in 1900, and Henry Lloyd was the Republican nominee. Funkhouser was declared elected, and Lloyd instituted a contest for the office, and among other grounds therefor he procured from the board of election commissioners a printed copy of the entire list of registered voters of the city of St. Louis, containing about 130,000 names, and, after erasing a few hundred names therefrom, made the same a part of his notice, and stated in the notice that the list contained the names of voters to whom he objected, stating his reasons for so objecting. Among the names of persons so objected to was that of Lloyd himself. Thereafter he applied to Judge Spencer for an order on the election commissioners to examine and recount all the ballots cast at said election for said office, and to compare such ballots with the voting lists, and to certify the result of such examination, recount, and comparison to the circuit court. Judge Spencer, sitting as such judge of said court, made the order asked, the portion thereof essential to this controversy being as follows: "Now, therefore, these presents are to command you, and each of you, acting as the said board of election commissioners, or as deputy election commissioner and secretary of said board, and as the said board of election commissioners, and as deputy election commissioner authorized by law to exercise the full power and authority of the said board, whenever occasion so to do shall arise under the law, to proceed to open, examine, count, and compare with the list of voters in your office all the ballots that were cast at the general election aforesaid for the office of coroner for the term above mentioned, and that you certify to this court, under your hand and seal, and as required by law, the result of such count, comparison, and examination of the said ballots so far as the same relate to the office aforesaid, in contest in the election contest above mentioned, to this court; and in so certifying the result of such count, comparison, and examination of the ballots you shall intelligently distinguish between ballots which were counted and those which were rejected by the judges of election acting in the several precincts of the city of St. Louis at the election aforesaid, and show the numbers upon said ballots, and the initials and other writing upon each such ballot, whether counted or rejected; and you are further directed to begin the said count, examination, and comparison of said votes, according to the directions of this writ, and to proceed with the same with all convenient and practicable speed. To assist you in the performance of the duties herein required, you are authorized and directed to detail not exceeding four of the regular sworn assistants of your office, who shall be, however, sworn to secrecy in the same manner that the parties and their attorneys are required to be sworn according to the provisions of section 7046 of the Revised Statutes of the state of Missouri of 1899. You, and each of you, as the board of election commissioners, as members of said board, and deputy commissioner, and all clerks detailed as assistants under authority herein granted, and each and all of you, are further required and commanded that in obeying this writ you shall proceed in all things according to law; and, further, that immediately upon the receipt of this writ you shall fix a day, not more than thirty days after the date of the receipt of this writ, on which you will proceed to open the said ballots, and to count, examine, and compare the same, as herein required, and you shall cause notice in writing of the day so fixed by you to be served on the contestant, Henry Lloyd, and the contestee, Robert M. Funkhouser, or their respective attorneys of record, in this proceeding, at least five days before the date so fixed by you to open the said ballots, and count, compare, and examine the same; and, further, that on the day so fixed by you you shall proceed in your office to open the said ballots in the presence of the said contestant, Henry Lloyd, and of the said contestee, Robert M. Funkhouser, and their respective attorneys, not to exceed two for each of the parties, all of whom shall be attorneys of record in this cause, or such of them as may demand to be present, and after administering to all such persons an oath binding them, as required by law, that they will not disclose any fact discovered from such ballots, or by or through the examination of the said ballots and the comparison thereof with the said list of voters, except such facts as may be contained in your certificate of the result of such count, examination, and comparison, and you shall exclude from your office during the time while such ballots are open, and being examined and counted and compared, all other persons whatever. You are further commanded, in such count, examination, and comparison of the ballots aforesaid, that you shall permit the said contestant, Henry Lloyd, and the said contestee, Robert M. Funkhouser, to be present during all of your proceedings, either together with their respective attorneys of record in this cause, not more than two for each party, or separately, and shall also permit the said attorneys for the contestant and contestee separately to be present during all the said proceedings, and shall permit them, and each of them, as they may request, to fully examine said ballots and voting lists, and to compare the same; and in the return or certificate which you shall file, stating your proceedings under this writ, you shall also return to this court, under your hands and official seal, all the facts which either of the parties to the aforesaid election contest may desire and request to have returned, and which may appear from the said ballots, and the examination and comparison thereof, affecting or relating to the election for the office now being contested in this proceeding. Herein fail not at your peril." The election commissioners gave relator notice of intention to comply with the order, and thereupon he applied for and obtained from this court a preliminary rule against the said judge, the election commissioners, and Henry Lloyd, contestee, prohibiting them from proceeding as proposed. The returns set up the order and justify it. The relator moved to quash the return of the judge, and demurred to the return of Lloyd.

1. The pivotal question involved is whether the circuit court had power to order the election commissioners and the parties litigant to make a comparison of the ballots with the voting lists, and to require the election commissioners to return and certify to the court "all the facts which either of the parties to the aforesaid election contest may desire and request to have returned, and which may appear from the said ballots, and the examination and comparison thereof." Section 3 of article 8 of the constitution is as follows: "All elections by the people shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to disclose how any voter shall have voted, unless required to do so as witnesses in a judicial proceeding: provided, that in all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law." We thus start the solution of the question with the mandate of the constitution that all elections shall be by ballot. An election...