Armantrout v. Bohon

• Decision Date: 17 June 1942
• Docket Number: 37937
• Parties: Colleen Armantrout, Appellant, v. E. C. Bohon
• Court: Missouri Supreme Court

162 S.W.2d 867

349 Mo. 667

Colleen Armantrout, Appellant, v. E. C. Bohon

No. 37937

Supreme Court of Missouri

June 17, 1942

Appeal from Marion Circuit Court; Hon. Edmund L. Alford Judge.

Affirmed.

Roy Hamlin for appellant.

(1) The statutes on election contests being a code unto themselves there is no provision in the statutes for the use of a demurrer to the notice. Secs. 11632, 11636, 11638, R. S 1939; State ex rel. v. Spencer, 166 Mo. 279; State ex rel. Hartly v. Gideon, 40 S.W.2d 745; State ex rel. v. Ellison, 190 S.W. 276; State ex rel. v. Slover, 134 Mo. 14.

Gray Snider and Ben Ely for respondent.

(1) The notice of election contest serves the purpose of a petition in an ordinary action and to confer jurisdiction it must state facts sufficient to constitute a cause of action. If it does not it is subject to demurrer. State ex rel. Wells v. Hough, 193 Mo. 615; State ex rel. Funkhouser v. Spencer, 164 Mo. 23; Hale v. Stimson, 198 Mo. 134; Green v. Owen, 38 S.W.2d 496. (2) An election contest is purely a creature of the statute, and it can be maintained only in those cases specifically covered by the statute. State ex rel. Phillips v. Barnett, 300 Mo. 76, 254 S.W. 85. (3) The board of education is given full power by law to determine whether there shall be one or more polling places in a school district for the annual school election, and its action in such regard is final, unless it has clearly abused its discretion. Secs. 10483, 10609, R. S. 1939. (4) The court could not order a new election in this case without the consent of both parties, which has not been given. Sec. 11638, R. S. 1939. (5) The allegations as to fraudulent voting in the Philadelphia precinct are wholly insufficient because the names of the alleged illegal voters are not given, nor is the number of illegal votes cast set out. Sec. 11632, R. S. 1939.

Barrett, C. Westhues and Bohling, CC., concurs.

OPINION

BARRETT

The trial court sustained a demurrer to Colleen Armantrout's notice or petition to contest the election of E. C. Bohon to the office of Superintendent of Schools of Marion County and the question presented is whether her notice states facts constituting a cause of action entitling her to contest the election. The case was transferred here by the St. Louis Court of Appeals. [Armantrout v. Bohon, 157 S.W.2d 530.]

At the outset the appellant argues that a demurrer has no place in an election contest and the court had no authority to dismiss the suit but was bound to hear evidence and determine the contest on its merits. Her thesis is that the law relating to election contests constitutes a code unto itself, requires a summary hearing and informal pleading, it only being necessary that the notice "specify the grounds upon which the contestant intends to rely." [Secs. 11632, 11636, R. S. Mo. 1939.]

And, it is true that the statutory law relating to election contests constitutes a code unto itself. The civil code of procedure is of necessity inapplicable to such a proceeding, especially as to the procedure to be followed. [State ex rel. Hancock v. Spencer, 166 Mo. 279, 65 S.W. 984; State ex rel. Hartly v. Gideon, 225 Mo.App. 459, 40 S.W.2d 745.] But the statute does require a notice which takes the place of a petition in an ordinary civil action. Furthermore, the statute requires the contestant to specify "the grounds," which means the cause of action, upon which he relies for contesting the election. The notice of contest serves the dual purpose of bringing the contestee into court and of setting forth and advising him and the court of the grounds of complaint or contest so that it may be decided summarily. [State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905.]

The "grounds" required to be stated "can only mean substantive averments -- informal, maybe, but yet in plain terms setting forth a cause of action upon which issue may be joined." There is always the question, does "said notice set forth facts constituting grounds of contest?" Since the notice in an election contest takes the place of a petition in an ordinary suit it "must be judged by the rules pertaining to the sufficiency of a petition" and therefore must contain a statement of facts -- not mere conclusions, which give rise to his right of contest or action and these grounds or facts must show the violation of some mandatory provision of the statute law relating to elections or such other conduct as usually invalidates an election. If the notice of contest does not contain such averments it is subject to being dismissed on demurrer. [Hale v. Stimson, 198 Mo. 134, 95 S.W. 885; Green v. Owens, 225 Mo.App. 746, 38 S.W.2d 496; State ex rel. Brown v. Stewart, 313 Mo. 1, 281 S.W. 768; State ex rel. Miles v. Ellison, 269 Mo. 151, 190 S.W. 274.] See and compare the sufficiency and insufficiency of the allegations in the above cases, as well as those in the following cases: State ex rel. Phillips v. Barton, 300 Mo. 76, 254 S.W. 85; Gantt v. Brown, 238 Mo. 560, 142 S.W. 422; Bradley v. Page (Mo. App.), 46 S.W.2d 208; Breuninger v. Hill, 277 Mo. 239, 210 S.W. 67.

Consequently, the question is whether the allegations of the appellant's notice constitutes such a statement of facts or cause of action that she sustains the burden of demonstrating, as an unsuccessful candidate, that a majority of the votes, at the April, 1939, election, were cast in her favor. [State ex rel. Miles v. Ellison, supra; Phelps v. Fenix, 345 Mo. 440, 134 S.W.2d 84.]

The allegation which the appellant deems conclusive is that only one voting precinct was designated or provided for the City of Hannibal and "as a result many people who would have voted for her were not given the privilege and opportunity of voting and exercising their rights under the laws of the State of Missouri." Omitting all the formal prerequisites which are well stated the notice says: "That it was shown by the official canvass of the votes returned to the County Clerk of the Marion County Court that a total of 4347 persons voted at said election. (Contestee received 2241 votes and contestant received 2106 votes.) That the records . . . further show that there were 50 voting precincts in Marion County for said election. The record of said court further shows that there was only one voting precinct provided for the entire City of Hannibal and adjacent and outlying territory, to-wit, at the Hannibal Court of Common Pleas Court House in the City of Hannibal, Missouri. And further, that of the entire total vote cast, to-wit 4347, a vote of 2141 or approximately one-half of the total vote cast was . . . at the one voting precinct. . . .

"Contestant specifically herein sets up the names of 207 persons that she knows personally went to the Court House in the City of Hannibal to vote for her. Many of these people whose names are set out herein waited for a great length of time and were unable to get into the polling place, and others made two and three trips to the Court House at different times of the day to get in to vote and were unable to get in to the polling places, and that a great many people who worked in industries in and about Hannibal did not get away from their work until four o'clock or after, and went immediately to the Court House to vote and stood in line for a great length of time, and that for hours before the polls closed there was a line of people trying to get into the polling place that reached from the polling place out onto the sidewalk . . . and even at the time the polls closed the line of voters extended from the polling place in the Court House out into the street.

"The following qualified voters (lists 207 people) . . . and entitled to vote in the City of Hannibal, who were turned away, or were unable to get into the polling place on election day."

The contestant then alleges that if these 207 people had voted they would have voted for her and as a result she would have been elected. She says that because of the inadequacy of the number of voting precincts the voters of Hannibal were discriminated against and deprived of their franchise. It is alleged that providing only one voting place for the City of Hannibal by the Hannibal School Board was a constructive fraud on the voters and the contestant.

While the general statutes relating to election contests apply to the office of county superintendent of schools the general election laws do not apply to the procedure to be followed in electing the superintendent. Article 14, Chapter 72, R. S. Mo. 1939, provides for such officials, their powers and duties, as well as their election. As to such officials the statute says: "the qualified voters of the county shall elect said county superintendent at the annual district school meeting held on the first Tuesday in April, 1923, and every four years thereafter." [Sec. 10609, R. S. Mo. 1939.] Ten days before the annual school meeting the county clerk is required to send the president or secretary of each school board tally sheets and supplies for conducting the election. It is the duty of the board of directors to see that the ballots are properly counted and transmitted to the county clerk. [Sec. 10610, R. S. Mo. 1939.]

Article 3, Chapter 72, R. S. Mo. 1939, contains the laws generally applicable to common schools and after providing for the annual meeting of the board in each district on the first Tuesday in April of each year says: "The qualified voters assembled at the annual meeting, when not otherwise provided, shall have power by a majority of the votes cast: . . . Eighth -- To designate their choice, by ballot, for a person to fill the office of county superintendent of public schools." [Sec. 10419, R. S. Mo. 1939.]

This election for county superintendent of schools was conducted as though the...