Barks v. Turnbeau

• Decision Date: 12 September 1978
• Docket Number: R-VI,Nos. 40661,40662,s. 40661
• Parties: Dewey BARKS, Respondent-Contestant, v. Natholene TURNBEAU, County Clerk of Madison County, Missouri, Appellant-Contestee, and Marquand-ZionSchool District, Appellant-Intervenor. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 677

573 S.W.2d 677

Dewey BARKS, Respondent-Contestant, v. Natholene TURNBEAU, County Clerk of Madison County Missouri, Appellant-Contestee and Marquand-Zion R-VI School District, Appellant-Intervenor.

Nos. 40661, 40662.

Missouri Court of Appeals, St. Louis District, Division Three.

Sept. 12, 1978.

Motion for Rehearing and/or Transfer Denied Nov. 15, 1978.

Stephen N. Limbaugh, Jr., Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondent-contestant.

Robert J. Blackwell, Farmington, for appellant-contestee and appellant-intervenor.

GUNN, Presiding Judge.

On April 4, 1978, the annual school election of the Marquand-Zion R-VI School District was conducted in conjunction with a county-wide election for Madison County, Missouri. A proposition to increase the school tax levy by $1.00 for every $100.00 of assessed property value was presented to the voters and passed by a margin of 350 to 166 a mere 6 votes more than the two-thirds majority required for approval. Included among the ballots counted were 70 absentee votes, 66 of which favored the proposition. Respondent-contestant Dewey Barks contested the election pursuant to § 115.553.2, RSMo Supp.1977 ¹ by citing numerous statutory violations in the absentee voting procedure. The Circuit Court found irregularities of sufficient magnitude to cast doubt upon the validity of the initial election and ordered a new polling on August 8, 1978. From that order, appellants Natholene Turnbeau, Clerk of Madison County, Missouri, and the Marquand-Zion R-VI School District appeal. They cite as error several trial court determinations that Barks was entitled to contest the election; that the school district was not a necessary and indispensible party; that the contest was not barred by the statute of limitations. Appellants also complain that the trial court failed to properly apply the applicable case law to its interpretation of Chapter 115, RSMo Supp.1977, the Comprehensive Election Act of 1977. Our review of this court-tried case is limited by the precept that the judgment of the trial court will be sustained unless ". . . there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We affirm.

Section 115.553.2 provides that "(t)he result of any election on any question may be contested by one or more Registered voters from the area in which the election was held." (emphasis added) Appellants argue that § 115.553.2 is modified by § 115.165.5, which states:

Any registered voter who changes his place of residence within a jurisdiction at or before 5:00 p. m. on the fourth Wednesday prior to an election and does not transfer his registration at or before 5:00 p. m. on the fourth Wednesday prior to the election shall not be entitled to vote in the election.

They contend that Dewey Barks changed his place of residence without transferring his registration and therefore lost his status as a registered voter for the purposes of an election contest. The facts adduced at trial are as follows:

The Marquand-Zion R-VI School District encompasses wards 1 and 2 of the City of Marquand and a third ward, Marquand-Marquand, which consists of the outlying area both north and south of the city limits. Barks testified that he has owned a home in ward 2 for at least 25 years and that he had paid his 1977 real estate tax on the property. The home is fully furnished, has a water well and septic tank, but neither utilities nor telephone are presently connected. Approximately 25 feet from the house is a feed store, also the property of Barks. Electricity is available for use in his home via an extension cord attached to the feed store. Barks claims that the home in the City of Marquand is his permanent residence and the voter registration records held by Natholene Turnbeau reflect the same.

It was established at trial that Barks also owns a farm and mobile home located in the outlying ward, Marquand-Marquand. He and his wife have lived in the mobile home for the greater part of the last two years preceding the election. In fact, Barks estimated that he stayed overnight in the house in the city no more than 2 or 3 times a month. However, Barks stated that during the spring and summer, he and his wife spend an hour or two at the house every few days in order to cultivate their vegetable garden. Although mail is delivered to the farm, Barks asserted that he had no intention of making the mobile home his permanent residence, but he could not say with any degree of certainty when he would spend more time in town.

The first issue confronting us is whether Barks is a legitimate registered voter within the election area and eligible to contest the election. The trial court found that Barks was still a resident of ward 2 for voter registration purposes, and we cannot conclude that such finding was erroneous. In order to reject an old residence and acquire a new one, more than mere bodily presence in the new place is required. Equally essential is "a presently exercised intention to abandon the old and establish the new." State ex rel. King v. Walsh, 484 S.W.2d 641, 645 n.4 (Mo. banc 1972). Accord : Gaffney v. Gaffney, 528 S.W.2d 738 (Mo.1975); In re Toler's Estate, 325 S.W.2d 755 (Mo.1959); Bridges v. Bridges, 559 S.W.2d 753 (Mo.App.1977); In re Estate of Ritter v. Hoffman, 518 S.W.2d 453 (Mo.App.1975). A determination of true intention is largely a question of fact. It must be gleaned from both the utterances of the person whose residence is at issue and from his acts in light of all the circumstances of the case. Fowler v. Clayton School District, 528 S.W.2d 955 (Mo.App.1975). ". . . (W)here the facts are conflicting, the presumption is strongly in favor of an original or former domicile as against an acquired one." State ex rel. Walsh v. King, supra at 645. Even absence from an individual's residence for relatively long periods of time does not mean an abandonment of that residence where the intent to return exists. State ex rel. King v. Walsh, supra; In re Estate Ritter v. Hoffman, supra; Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997 (1934). Considering the facts of this case, we cannot say that the trial court's judgment finding in favor of Barks' residence for purposes of contesting the election was against the weight of the evidence. As we have affirmed the trial court's determination of Barks' residency, we need not consider any allegation that § 115.553.2 violates the equal protection clauses of the Missouri and United States Constitutions.

The Marquand-Zion R-VI School District, appellant-intervenor in this case, complains that the lower court erred by not declaring it an indispensible party for the purpose of this election contest. Relying on Supreme Court Rule 52.04, the school district contends that its interest in the outcome of the action is so great that without compulsory joinder, complete relief could not be accorded. The full ramifications of this argument are not apparent until we consider appellants' third citation of error, however. If the school district was indeed an indispensible party, then Barks could be barred from suit for failure to serve the district with a timely petition to contest an election. §§ 115.577 and 115.579.

The right to contest an election exists only as granted by constitutional or statutory provisions. State ex rel. Conaway v. Consolidated School District No. 4 of Iron County, 417 S.W.2d 657 (Mo.1967). ". . . (S)tatutory procedure in an election contest is a code unto itself, and is governed by the rules of civil procedure only to the extent expressly provided or required by implication." State ex rel. Camillo v. Hess, 458 S.W.2d 721, 722 (Mo.App.1970). Accord : Gannon v. Cloyd, 514 S.W.2d 649 (Mo.App.1974); State ex rel. Bonzon v. Weinstein, 514 S.W.2d 357 (Mo.App.1974).

The success of appellants' claim rests, therefore, upon the proper interpretation of the school board's status as implied in § 115.553.2:

The result of any election on any question may be contested by one or more registered voters from the area in which the election was held. The petitioning voter or voters shall be considered the contestant and the officer or election authority responsible for issuing the statement setting forth the result of the election shall be considered the contestee. In any such contest, the proponents and opponents of the ballot question shall have the right to engage counsel to represent and act for them in all matters involved in and pertaining to the contest.

Clearly, the statute designates the appropriate election authority, in this case Natholene Turnbeau, as the only indispensible contestee. This selection is consistent with the typical format of an election contest a challenge to election procedure. Persons interested in the substance of a given ballot proposition may participate in the contest as intervenors or amicus curiae. Appellant school district's motion to be considered a necessary and indispensible party was properly denied. As a result, it was unnecessary for Barks to serve the district with a petition to contest the election as provided for in § 115.577.

Having determined that Barks was entitled to contest the election, we now review the substance of his complaint. Barks charges and the trial court found the following irregularities in the absentee ballot procedures:

(1) Each absentee voter failed to apply in writing for a ballot, in violation of § 115.279. Only four of the voters made an oral application to the...