State v. Spencer

• Decision Date: 21 December 1901
• Citation: 166 Mo. 271,65 S.W. 981
• Parties: STATE ex rel. FUNKHOUSER v. SPENCER, Judge, et al.
• Court: Missouri Supreme Court

65 S.W. 981

166 Mo. 271

STATE ex rel. FUNKHOUSER v. SPENCER, Judge, et al.

Supreme Court of Missouri.

December 21, 1901.

ELECTION CONTEST—APPEAL—LAW OF THE CASE—COMPLAINT—ALLEGATIONS—COMPARISON OF BALLOTS — VOTING LISTS — GOOD FAITH—PROHIBITION.

1. A decision by the supreme court in an election contest that an order directing the election commissioners to open, count, and compare with the list of voters ballots deposited by voters whose right to vote was not questioned by either party was without authority of law, was binding on the circuit court on the remand of the case, as the law of the case.

2. In an election contest, a charge that ballots were counted for the contestee that were cast for contestant did not authorize an order directing the election commissioners to open, count, and compare the ballots with the list of voters; such a comparison not being necessary to determine whether votes cast for contestant were counted for contestee, or whether the votes cast were properly summed up.

3. Rev. St. 1899, § 7029, authorizing election contests, provides that a certain notice shall be served, which shall specify the grounds on which contestant intends to rely, and, if any objection be made to the qualification of any voters, the names of such voters and the objections shall be stated therein. Held, that such statute required the complaint to state facts which, if proved, would entitle the claimant to relief, and that a complaint alleging that all of the ballots cast at the election, except 300 not involved in the contest, were fraudulent, which included the ballots cast for the contestant himself and the ballot voted by contestant, without more, showed that it was not filed in good faith.

4. Though the errors existing in a court's order in an election contest are such as generally can only be corrected on appeal or writ of error, yet, where the order attempts to expose the manner in which voters exercised their right of franchise, by authorizing comparison of the ballots with the voting lists, the damage to the voter could not be repaired by appeal or writ of error, and the order was therefore properly reviewable on a writ of prohibition.

Robinson, J., dissenting.

In banc. Prohibition by the state, on relation of R. M. Funkhouser, against Selden P. Spencer, judge, and others, to restrain the carrying out of an order in an election contest. Writ made absolute.

This is the second time this controversy has been before this court. The former case is reported in 63 S. W. 1112. The law in reference to the examination of ballots cast at any election was settled in that case, and the subject is no longer open to review in this state. After that decision the respondent Spencer, as judge of the circuit court, on the 9th of July, 1901, upon the application of the contestant, Lloyd, made the following order in the contested election case: "Now, at this day, the court having heard and fully considered the petition of the contestor herein filed for a writ directed to the board of election commissioners of the city of St. Louis, and being now fully advised in the premises, it is ordered by the court that a writ do now issue, directed to the board of election commissioners of the city of St. Louis, commanding them to open, count, compare with the list of voters, and examine the ballots in their office which were cast at the election held in the city of St. Louis, Mo., on the 6th day of November, 1900, and to make return and certify under their hand and official seal to this court of such count, comparison, and examination, so far as the same relates to the office of coroner of the city of St. Louis, and in so certifying they shall intelligently distinguish between ballots which were counted and those which were rejected; and said order shall further direct the said board of election commissioners to permit the contestor, Henry C. Lloyd, and the contestee, R. M. Funkhouser, and their respective attorneys, to fully examine the said ballots; and in making such returns to this court said board of election commissioners shall include all the facts therein which said contestor or said contestee, or their attorneys, may desire, which may appear from the said ballots, affecting or relating to the election for said office." Thereupon the petitioner applied to one of the judges of this court, in vacation, for a preliminary rule in prohibition, to prevent the respondents from enforcing or carrying out the order aforesaid; showing by his petition, inter alia, that the order required the election commissioners to open, count, compare with the list of voters, and examine all the ballots that were cast at the general election on November 6, 1900, so far as they relate to the office of corner of the city of St. Louis, while the notice of contest in the election contest case of Lloyd against Funkhouser, in which the order complained of was entered, did not call in question or in any manner contest the votes of about 300 voters registered in, and who voted in, the First, Second, Third, Fourth, Fifth, Sixth, and Seventh precincts of the Fourth ward of said city. The notice of contest contained a copy of the registration lists of the city, showing that about 136,000 persons were registered in that city as voters, and, after striking out about 300 names in the precincts aforesaid, charged that all the remainder of the registered voters of the city had voted illegally, including all those who voted for the contestant as well as those who voted for contestee, and including the name of the contestant himself. Upon this showing a preliminary rule was issued. The return of the respondents admits these facts, and seeks to justify the order. The petitioners have demurred to the return.

Jno. H. Overall, for relator. McCoy & Gillespie, for respondents.

MARSHALL, J. (after stating the facts).

The decisive question in this case is whether or not the circuit court exceeded its jurisdiction in ordering the election commissioners to open, count, compare with the list of voters, and examine the ballots cast by the 300 voters whose right to vote and whose ballots are not questioned by either the contestant or the contestee, as well as all the ballots that were cast at that election. When this matter was here before it was...