Atkeson v. Lay

• Decision Date: 08 May 1893
• Parties: Atkeson, Appellant, v. Lay
• Court: Missouri Supreme Court

22 S.W. 481

115 Mo. 538

Atkeson, Appellant, v. Lay

Supreme Court of Missouri, First Division

May 8, 1893

Appeal from Cass Circuit Court. -- Hon. C. W. Sloan, Judge.

Affirmed.

E. J Smith for appellant.

(1) A political party may nominate candidates in either of the three ways, viz.: by convention, by primary election or by electors. Revised Statutes, 1889, sec. 4757; acts 1891, p 134; acts 1892, sec. 27, p. 10. (2) The only official knowledge the county clerk has of the nominee is by the certificate of the secretary of state, and he can do no more than print the tickets as certified to him. Revised Statutes sec. 4767-8; State ex rel. v. Lesueur, 103 Mo. 253; Bowers v. Smith, 111 Mo. 45; People v. District Court, S.Ct. Col., Oct. 8, 1892. (3) The specifications in the demurrer do not raise any question as to whether any votes cast for contestee in Henry county should be counted. They go on the theory that no votes in Henry county should be counted for either of these parties, and that contestee was elected because of the invalidity of the votes cast for contestant in the other counties. However, as we claim the tickets in the other counties were valid, and that no votes in Henry county should be counted for this office, because that ticket was invalid, and perhaps that question is raised by the part of the demurrer that is general, before the specifications, and this question must finally be passed on in this case, we submit the authorities on it and ask the opinion of the court. Revised Statutes, sec. 4671, 4772-3; also sec. 4753; Bowers v. Smith, 111 Mo. 45; Breckenridge v. Cook, 41 Mo. 593; West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 Mo. 422; Gumm v. Hubbard, 97 Mo. 311; Harrison v. Frazier, 98 Mo. 426; Price v. Lush, 10 Mon. 61; 24 P. 749; People v. Board, 29 N.E. 327; Talcott v. Philbrick, 59 Conn. 472; 20 A. 436; Field v. Osborn, 21 A. 1070; In re Water Works, 21 A. (S. C. R. I.) 962; People v. District Court, supra.

De Armond & Smith, with whom are C. C. Dickinson, J. D. Lindsay, T. W. Silvers and R. E. Lewis, for respondent.

(1) A political party having the legal capacity to nominate in the usual way by primary election or convention, does not have the right under the election laws of 1889 and 1891, to nominate a candidate by petition or certificate of voters. (2) That no set of persons confessedly and avowedly not belonging to nor affiliating with a given political party can have the right to nominate candidates for such party, is clear to everyone familiar with the law of agency. Can a Democratic convention, organized and acting as such, make a legal nomination under our reform election laws for the Republican party? If the political party as a whole cannot so act for another, a small fraction of it cannot do so. (3) Appellant's position is that a number of voters equal to one per cent. of those voting at the election last prior to that of November 2, 1892, in the counties composing the twenty-ninth judicial circuit, and belonging to the People's party, can by their petition or certificate after nominating appellant as the candidate of that party in the same manner and by the same means, that is by the same certificate, nominate him as the candidate of the Republican party. The position is untenable and finds no countenance in the statute. Revised Statutes, 1889, sec. 4773; Acts, 1891, p. 134. (4) The failure of appellant to pursue the statutory remedy for correcting the supposed error of the clerk of the Henry County Court in printing the ballot, operated as a waiver of any alleged error on that account. Bowers v. Smith, 111 Mo. 45; Allen v. Glynn, 29 P. 670; State, etc., v. Lesueur, 103 Mo. 265; State, etc., v. Russell, 51 N.W. 465.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

This is a proceeding under the statute, commenced by the appellant before Hon. C. W. Sloan, Judge of the seventeenth judicial circuit, contesting the election of respondent to the office of judge of the twenty-ninth (an adjoining) judicial circuit, at the November election, 1892.

The following are the material allegations of the petition: "That at said election this contestant was a candidate and to be voted for said office of judge of the circuit court of the twenty-ninth judicial circuit, and the said James H. Lay, contestee herein, was also at said election a candidate for said same office. That said twenty-ninth judicial circuit consisted and consists of the counties of Bates, St. Clair, Benton and Henry; that as shown by the returns sent by the several county court clerks to the secretary of state, the said contestant and contestee received and had so certified the following vote, to-wit: In the county of Bates this contestant received and had so counted and certified in his behalf, three thousand five hundred and eighty-one votes, and contestee received and had so counted and certified in his behalf, three thousand one hundred and seventy-five votes, showing a majority in favor of the contestant in said county of four hundred and six votes; in the county of St. Clair, contestant received and had counted and so certified and returned in his behalf, two thousand and forty-six votes and contestee received and had counted and so certified and returned in his behalf, one thousand six hundred and twenty-nine votes, showing a majority in said county of four hundred and seventeen votes for contestant; that in said Benton county, said contestant received and had so counted and returned in his behalf, one thousand eight hundred and eight votes, and contestee received therein and had so certified and returned for him, one thousand two hundred and thirty-four votes, showing a majority in said Benton county for contestant of five hundred and seventy-four votes; that by the returns certified from and by the clerk of the county court of said Henry county, this contestant is shown to have received and had certified and returned in his behalf in said Henry county, one thousand and ninety-two votes; while by the same, contestee is shown to have received in said Henry county, three thousand three hundred and ninety-four votes, showing a majority in said Henry county in favor of contestee of two thousand three hundred and two votes, which shows on the face of said returns a majority of nine hundred and five votes for contestee in said twenty-ninth judicial circuit. But this contestant and petitioner now says that in law and truth and fact there were no legal votes or ballots cast for contestee in said Henry county at said election, and none of the votes for contestee so counted and returned for him in said Henry county should have been so counted and so returned for him for the following reasons, to-wit: The Republican party of said twenty-ninth judicial circuit did not hold any delegate convention or any primary election to nominate a candidate for said office of judge of said court, to be voted for at said election, yet this contestant was duly nominated as the candidate of said Republican party by petition or certificate of and by electors resident within said twenty-ninth judicial circuit, duly qualified thereto as required and provided by section 4763, Revised Statutes of Missouri of 1889, and the petition or certificate thereof and thereto duly and properly filed in the office of the secretary of state of said state of Missouri, in due time as required by law, to-wit: not more than sixty days and not less than twenty days before the day of said election, and the said secretary of state in due time, to-wit: not less than eighteen days before the day of said election, did certify to the clerk of said county court of Henry county the names and descriptions of the several persons nominated and to be voted for by voters of said Henry county, with the voters of other counties for the several offices so to be voted for by said voters of said Henry county, as specified in the certificate of nomination filed with said secretary of state, and so said secretary of state duly certified to said county court clerk of Henry county, the name of this contestant as a candidate of the said Republican party for said office of judge of the circuit court of said circuit, notwithstanding all of which the said clerk of said Henry county court, in printing and causing to be printed, the tickets on the ballots for use, and which were used at said election in said Henry county, did not group all the candidates of the said Republican party in one group or ticket, under one head, giving the same the the name of the 'Republican ticket,' as was his duty under the law; but on the contrary, said clerk, in printing and causing to be printed said tickets or ballots, headed one group 'Democratic ticket,' and in the same he grouped and caused to be printed the names of all the candidates of said Democratic party, and at the regular and proper place, the name of contestee, James H. Lay, was properly printed. He headed one group or ticket 'Republican ticket,' but in the same, at the proper place for said office and candidate, he did not print or cause to be printed the name of this contestant as candidate for said office of judge of said circuit court of said twenty-ninth judicial circuit, but left the same blank so far as such candidate was and is concerned, giving same the name or style of the office to be filled, but no name or any candidate therefor, thus: 'For judge of the circuit court twenty-ninth judicial circuit, .'

"On said ballot said clerk headed one group 'Prohibition Ticket,' and under which was grouped the names of the candidates of the Prohibition party nominated for the several offices to be filled at said election and voted for by the voters of said Henry county.

"One other group he headed 'People's ticket,' and on and under which he grouped...