Bowers v. Smith
| Decision Date | 09 November 1891 |
| Citation | 17 S.W. 761 |
| Parties | BOWERS v. SMITH. |
| Court | Missouri Supreme Court |
Proceeding by Joseph A. Bowers to contest the election of Ellis R. Smith to the office of sheriff of Pettis county. Judgment for defendant. Plaintiff appeals.
The other facts fully appear in the following statement by BARCLAY, J.:
This is a statutory contest to determine the respective rights of the parties to the office of sheriff of Pettis county. The election in question took place November 4, 1890. Mr. Bowers is the contestant. For convenience, he will be called the plaintiff, and his opponent, Mr. Smith, who is the contestee, the defendant. Plaintiff's notice of contest assigned several distinct grounds, in as many paragraphs, in the nature of counts, or causes of action. After it was served defendant gave plaintiff a counter-notice, which (besides denying generally the plaintiff's charges) alleged a number of objections to the original count of the ballots, and claimed that corrections, to defendant's advantage, should be made therein in a number of particulars. The circuit court of Pettis county sustained motions to strike out some of the grounds of plaintiff's notice. Exceptions were saved to that ruling. The case then came to trial. As will appear, the real issues were finally resolved into questions of law, and upon them the trial court found for the defendant. Plaintiff then appealed, after the usual motions. The official ballot mentioned in the opinion (omitting immaterial parts) is as follows, viz.:
STATE, COUNTY, AND TOWNSHIP TICKET
PETTIS COUNTY, MISSOURI
DEMOCRATIC. REPUBLICAN. UNION LABOR
* * * * * * * * *
* * * * * * * * *
* * * * * * * * *
For Sheriff. For Sheriff. For Sheriff
J. A. BOWERS. ELLIS R. SMITH. G. D. SAPPINGTON.
* * * * * * * * *
* * * * * * * * *
* * * * * * * * *
(The blanks in the ballot, indicated above by asterisks, were filled, in the original, with the names of the several party nominees for the various state, county, and township offices.)
Jackson & Montgomery and Chas. E. Yeater, for appellant. W. S. Shirk, Bothwell & Jaynes, and Sangree & Lamm, for respondent.
BARCLAY, J., (after stating the facts.)
The election at which these parties stood for the office of sheriff resulted in favor of defendant, Mr. Smith, as shown by the original and by the final returns. The latter were made by the clerk of the county court upon a recount of the ballots, received from the various polling precincts in the county. The recount was had at plaintiff's instance, after this contest began, and was conducted as provided by the law on that subject. Rev. St. 1889, §§ 4721-4726. Both parties rely on the application to this controversy of the recent statute concerning elections, (sections 4756-4794, Rev. St. 1889,) commonly known as the "Australian Ballot Law," as first enacted in this state. It is thus conceded to apply to Sedalia, as a city of over 5,000 population. The points of difference to be determined on this appeal relate to features of the election in that city held under that law. We need not pause to state the particulars of the rulings in the trial court, raising the material questions involved, but shall proceed at once to the merits of the dispute.
1. Plaintiff claims that the entire vote of Sedalia precinct should be ignored in the final count because the official ballot, prepared by the county clerk and used at that precinct, contained () the names of the nominees of the Union Labor party, and that that party had not polled the requisite 3 per cent. of the entire vote at the last previous election, as required by section 4760, Rev. St. 1889. Conceding (without investigating) the fact on which that claim rests, does it follow that the vote of the precinct should therefore be discarded? In interpreting the statute in question, it must be remembered that its adoption here brings it into subordination to the fundamental law of Missouri, and that prior decisions elsewhere, construing similar enactments, cannot properly be followed, if inconsistent with established principles of our existing law. By our constitution, general elections are to be held at certain fixed times, and the right of suffrage is secured to every citizen possessing the requisite qualifications. The new ballot law cannot impinge upon the right of voters to select their public servants at such elections, or be so interpreted as to limit the range of choice, for constitutional offices, to persons nominated in the modes prescribed by it. Nominations under it entitle the nominees to places upon the official ballots, printed at the public expense; but the Missouri voter is still at liberty to write on his ballot other names than those which may be printed there. The statute recognizes this right by requiring blanks for such writing, next the...
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