Bernhardt v. Long
| Decision Date | 09 February 1948 |
| Docket Number | 40533,40534,40535,40536,40537 |
| Parties | William C. Bernhardt, Appellant, v. James J. Long and Walter Kosel. John L. Wilson, Appellant, v. L. A. Young. Louis Larkin, Appellant, v. James J. Long and Walter Kosel. Mark Engledow, Appellant, v. Elizabeth Hentcher and George Krodinger. John Cole, Appellant, v. Elizabeth Hentcher and George Krodinger |
| Court | Missouri Supreme Court |
Rehearing Denied March 8, 1948.
Appeal from Jefferson Circuit Court; Hon. Edw. T. Eversole Judge.
Affirmed.
Samuel Richeson for appellants.
(1) The Circuit Court of Jefferson County, Mo., had jurisdiction of an election contest for the office of school director of the Consolidated School District in that county. Laws 1945, p 887, sec. 2. (2) The election of the school directors in question must be by ballot. Constitution of 1945, Art. 8, Sec. 3; Laws 1943, sec. 10483, p. 886; State ex rel. Connell v. St. Louis Public Schools, 112 Mo. 213, 20 S.W. 484. (3) If error is committed in preparation of official ballots, such may be corrected in a lawful manner, but not by substitution of a private ballot. The official ballot in the form prescribed by the board and furnished to the judges by the Secretary was the only ballot which should have been cast or counted at the Consolidated school election in question. Laws 1943, p. 886, sec. 10483; Gaston v. Lamkin, 115 Mo. 20, 21 S.W. 1100; Bradley v. Cox, 271 Mo. 438, 197 S.W. 88; Rollins v. McKinney, 157 Mo. 656, 57 S.W. 1027; Bowers v. Smith, 111 Mo. 45, 17 S.W. 761. (4) The following statutes are in pari materia: R.S. Mo. 11593, 11594 (); R.S. Mo. 10328 (School Bond elections); R.S. Mo. 10466 (); R.S. Mo. 10508 (Certain consolidated high school districts); R.S. Mo. 10681 (City districts of 75,000 to 500,000); R.S. Mo. 10689 (Ballots furnished by board in cities of 75,000 to 500,000). (5) No statutes can be found authorizing use of a private ballot. (6) The notice of contest was sufficient. Laws 1945, p. 887, sec. 2; State ex rel. Wells v. Hough, 193 Mo. 615, 91 S.W. 905. (7) The notice of contest charges that the will of the people was frustrated by intimidation of and fraud upon the voters and officials by the contestees, and that the false ballots were used as a part of such fraud and intimidation. Such in itself is sufficient to invalidate the election. 11545, R.S. 1939; State ex rel. Brown v. McMillan, 108 Mo. 151; State ex rel. Hadley v. Kansas City Livestock Exchange, 211 Mo. 181, 109 S.W. 675.
J. W. Thurman for respondents.
(1) The circuit court has jurisdiction in cases of contests of elections for seats as school directors. Sec. 3, Art. 8, Constitution of Missouri, 1945; Laws 1945, sec. 2, p. 887. (2) Notice of contest takes the place of a petition in an ordinary suit and the notice must therefore be judged by the rules pertaining to the sufficiency of a petition and must state a cause of action in order to give the court jurisdiction. Hale v. Stimson 198 Mo. 134. (3) A notice of contest, in order to be subject to amendment must state a cause of action otherwise the court does not acquire jurisdiction of the subject matter. Hale v. Stimson, 198 Mo. 134 (4) An election will not be annulled, even if certain provisions of the law regarding elections have not been strictly followed, in the absence of fraud. State ex rel. Mills v. Ellison, 269 Mo. 151, 190 S.W. 274; 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, 46 S.W.2d 208. (5) Appellants' notices of contest are insufficient to constitute a cause of action and the court properly sustained respondents motion to dismiss. Laws 1945, sec. 2, p. 887; Armantrout v. Bohon, 162 S.W.2d 867; Hale v. Stimson, 198 Mo. 134; Penrose v. Killoren, 188 S.W.2d 1.
Bradley, C. Dalton and Van Osdol, CC., concur.
These five cases are election contests of school directors in Consolidated School District No. 5 of Jefferson County. The cases were filed separately below and separately appealed, but were consolidated below and here. The contestees (respondents) in each case filed motion to dismiss. The five contests were based on same alleged facts, except names of parties, and there was a stipulation that the judgment in what is case No. 40,533 here would be the judgment in the other four cases. The trial court sustained the motion to dismiss in No. 40,533, and that case and the four others were dismissed and these appeals followed. The appeals were properly to the supreme court because "the title to an office under this state" is involved. Const. Art. V, Sec. 3; State ex rel. Worsham v. Ellis et al., 329 Mo. 124, 44 S.W.2d 129.
The motion to dismiss was based on these grounds: (1) That the notice of contest does not set forth facts constituting grounds of contest; (2) that said notice does not contain substantive averments of contest as required under the law; and (3) that said notice is insufficient in law to constitute the contest required under the Constitution and statutes of this state.
The notice of contest takes the place of the petition in the ordinary suit. Messick v. Grainger, 356 Mo. 1227, 205 S.W.2d 739, l.c. 741, and cases there cited.
The notice of contest alleges: That Consolidated School District Number 5, Jefferson County, was duly organized; that the board of directors called the annual school election in said district to be held at the McGehan school house in the district on April 1, 1947, from 7 a.m. to 6 p.m. for the purpose of electing school directors and voting on a levy, and that the board appointed three judges (naming them) for said election; that the secretary of the board, William C. Bernhardt, posted notice of said election in five public places in the district 15 days prior to the date of the election; that the secretary of the board, at public expense, prepared the official ballots, poll books, and talley sheets and delivered these to the judges of said election before 7 A.M. April 1, 1947; that the official ballot was published by the secretary by posting copy thereof in five public places in the district 7 days before the election; that the judges of the election appointed two clerks; that the judges and clerks held said election at the McGehan school house April 1, 1947, between the hours of 7 A.M. and 6 P.M.
That prior to the election James J. Long, Walter Kosel, L. A. Young, C. H. Stegelmeyer and others unknown, in order to raise money for the school election purposes, associated together under the name of Community Improvement Association; that Long and Kosel (contestees) cooperated in raising money to be used in furtherance of their election as school directors and to defeat Bernhardt; that said Association, with Long and Kosel, prepared and printed a large number of ballots similar in appearance to the official ballot and caused said simulated ballots to be "by force and fraud" placed in the hands of the judges and clerks of said election and by these given out to the voters at the election; that the simulated ballots were mistaken for and voted by a large number of voters as the official ballots and were by the judges counted along with the official ballots cast; that the count of the official ballots cast gave a total of 80 votes for Bernhardt (contestant) for director "and none for any other opposing candidate"; that the judges of said election "by reason of fear of bodily harm" did not certify to the secretary of the school board "the total vote of the official ballots" cast for Bernhardt; that the judges were prevented "by fear and intimidation" on the part of Long and Kosel and their associates from removing the simulated ballots from the polling place and from the hands of the voters or from the ballot boxes.
That Long and Kosel and their associates intimidated the election officials; "created a disturbance of the peace in the election place; kept the polls from functioning for long periods of time; caused voters to be scared away from the polls; caused a letter to be written to the judges by the prosecuting attorney, and delivered to the judges during the election for the purpose of bringing pressure on the election officials and to cause said officials to "accept as genuine" the simulated ballots which had fraudulently thereon "official ballot"; caused the sheriff to appear at the election place with a bundle of the simulated ballots "and to force the use thereof" by the election officials; caused the solicitation of votes for them (Long and Kosel) "at the very doors of the polling place"; that 230 of said simulated ballots were cast and counted; that contestant is qualified for school director (qualifications set out) and that if the simulated ballots are eliminated contestees "received no votes for the office of school director."
What is termed the official ballot and the simulated ballot are set out in the notice of contest. So far as pertinent here these follow:
(Alleged Official Ballot)
Jefferson County, Mo.
For One Year Term (vote for two)
JOHN KRODINGER
JOHN L. WILSON
(Alleged Simulated Ballot)
Consolidated District Mo. 5
Jefferson County, Mo.
For One Year Term (vote for two)
JOHN KRODINGER
L. A. YOUNG
JOHN L. WILSON
C H....
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