Bradley v. Cox
| Decision Date | 12 July 1917 |
| Citation | 197 S.W. 88,271 Mo. 438 |
| Parties | JOHN H. BRADLEY, Contestant, v. ARGUS COX, Contestee |
| Court | Missouri Supreme Court |
Contestant awarded office.
William C. Marshall, J. L. Fort, Ralph Wommack, A. L. Oliver, R. L Ward, N.C. Whaley, W. H. Douglas, John T. Mackay and L. B Hutchison for contestant.
(1) The statute has given this court jurisdiction in this contest and, being a constitutional court, it possesses inherent power and by virtue of that power may do whatever right and justice requires in this case, whether specifically provided for in the statutes or not. R. S. 1909, sec. 5951, amended Laws 1911, p. 243; State ex rel. v. Ross, 161 Mo.App. 671. (2) Under the facts and pleadings in this cause it would have been legal and right to count the ballots cast in Maries County bearing the name of Arch A. Johnson as if he were the Democratic nominee, for this contestant, without proof from the voters by parol evidence as to what they intended. The law directed that contestant's name be placed on the ticket as the Democratic nominee and this statute (Section 5891) is mandatory. The law presumes that done which ought to be done. The well known and conceded facts and circumstances surrounding the election are all that should be necessary, as the voter has nothing to do with the printing of his ballot. He cannot be disfranchised by an error or fraud of the election officers. Fairchild v Ward, Dig. of Contested Election Cases, H. of R. (Rowell), p. 559; Nance v. Kearbey, 251 Mo. 374; People ex rel. v. Malzacher, 110 Ill. 305; Behrensmeyer v. Kreitz, 135 Ill. 591; People v. Cook, 8 N.Y. 67; Bowers v. Smith, 111 Mo. 45; State v. Saxon, 12 So. 218; Miller v. Pennoyer, 31 P. 830 (Ore.) ; State v. Van Camp, 54 N.W. 113; San Luis Obispo v. Fitzgerald, 58 P. 699; Gumm v. Hubbard, 97 Mo. 311; People v. Czarnecki, 256 Ill. 327; People ex rel. v. Matteson, 17 Ill. 167; State ex rel. v. Elwood, 12 Wis. 551; Atkeson v. Lay, 115 Mo. 539; Wigmore's Aus. Ballot System, 190; McCrary on Elections (4 Ed.), p. 403; State ex rel. v. Eagen, 115 Wis. 417; Easterbrooks v. Atwood, 76 A. 109; State ex rel. Hirsh v. Wood, 148 N.Y. 142. (3) It is competent for the 1311 voters of Maries County who voted a ticket bearing the name of Arch A. Johnson to testify that they thought they were voting for and intended to vote for the regular Democratic nominee of their party. If this be not the law, then indeed would the door to fraud be wide open. The voters in Maries County who voted the Democratic ticket testified that they intended to vote for the Democratic nominee. This evidence is proper. It does not violate the rule of law that parol evidence is not admissible to contradict a written instrument. The distinction arises from the very nature of our election laws, for the written instrument (the ballot) is not prepared by the voter but by the public officials and the voter has the right to rely upon the fact that public officers do their duty. (a) Parol evidence may be admitted where there has been a fraud, either actual or constructive, perpetrated on the voters or on the candidate. People ex rel. v. Ferguson, 8 Cow. (N. Y.) 102; Freeman v. Lazarus, 61 Ark. 247; State ex rel. v. Pease, 147 S.W. 649; State ex rel. v. Elwood, 12 Wis. 551; State ex rel. v. Meilike, 92 Wis. 607; State ex rel. v. Luy, 103 Wis. 528; State ex rel. v. Eagan, 115 Wis. 420; Hirsh v. Wood, 148 N.Y. 142. (b) A ballot that is ambiguous on its face may be explained by parol evidence. Gumm v. Hubbard, 97 Mo. 311; McCrary on Elections (4 Ed.), 403; People v. Saxon, 22 N.Y. 311; People ex rel. v. Malzacher, 110 Ill. 305; People v. Ferguson, 8 Cow. (N. Y.) 102; Norton v. County Court, 91 S. E. (W. Va.) 258. (c) Ballots should be liberally construed and the construction should be in favor of a reading which will render the ballot effective rather than some conclusion which will on technical grounds render it ineffective. Abshier v. Aiken, 191 S.W. 770; Behrensmeyer v. Kreitz, 135 Ill. 495; Bowers v. Smith, 111 Mo. 57; Owens v. State ex rel., 64 Tex. 509; State ex rel. v. Saxon, 12 So. 218. (d) The statute takes out of the voter's province the preparation of the ballot, and the State undertakes to do this for him. If the ballot is not prepared in the manner prescribed by the mandatory statutes of the State, then the voter has a right to contradict it. Freeman v. Lazarus, 61 Ark. 247; Williams v. Buchannon, 86 Ark. 270; Peabody v. Burch, 89 P. 1016; Patton v. Coates, 41 Ark. 111; People v. Clark, 8 N.Y. 67. (e) A ballot is to be construed in the same way as any other written or printed document and the construction must be such to give effect to the voter's intention if that can be ascertained from the face of the ballot, or in cases where there has been a fraud perpetrated on the candidate or the voters or that which amounts to a fraud, and which fraud or that which amounts to a fraud changed the result of the election, then evidence aliunde the ballot may be heard. McCrary on Elections (4 Ed.), p. 403; People v. Cook, 8 N.Y. 67; In re Foy's Election, 76 A. 713. (f) It is a matter of common knowledge that does not require proof that electors more often vote for a candidate because of the party he represents than for reasons personal to the voter. Therefore, it is competent to prove by the voter what he intended when he cast a ballot under the circumstances of this case. In re Foy's Election, 76 A. 715; Norton v. County Court, 91 S. E. (W. Va.) 258; Clark v. Commissioners, 33 Kan. 202.
Barbour & McDavid, Morton Jourdan, W. J. Orr, Howard Gray, J. W. Halliburton, Lewis Luster, Sam Wear and Pope & Terrill for contestee.
(1) The right to contest an election did not exist at common law and is not an inherent right, but the right exists only by reason of the provisions of the Constitution and statutes of the State. The Constitution provides that the "General Assembly shall by general law designate the court and regulate the manner of the trial and all matters incident thereto," and therefore, the powers exercised by the court must be derived from the statute and the court has no inherent power to do anything in relation to this matter that is not provided for by the statute. Constitution, art. 8 sec. 9; Kehr v. Columbia, 136 Mo.App. 328; Bradbury v. Wightman, 232 Mo. 392; Nance v. Kerbey, 251 Mo. 387; State v. Gamma, 149 Mo.App. 702; State ex rel. v. Slover, 134 Mo. 15; State ex rel. v. Spencer, 166 Mo. 285; State ex rel. v. Hough, 193 Mo. 643. (2) The Constitution and statutes provide that all elections shall be by ballot, which plainly means that no candidate or person can be voted for unless the name of such candidate or person is printed or written on the voted ballot; and hence, it must necessarily follow that no vote can be cast or counted for any candidate or person whose name does not appear on the ballot cast by the voter. Constitution, art. 8, sec. 3; Secs. 5805, 5890 and 5891, R. S. 1909; Sec. 5900, Laws 1913, p. 328. (3) The statute provides that it shall be the duty of the county clerk to provide printed ballots for the election and to cause to be printed on the appropriate ballot the name of every candidate whose name has been certified to him. Ballots other than those printed by the county clerk according to the provisions of this article shall not be cast or counted in any election. Sec. 5890, R. S. 1909. The statute further provides that every ballot printed under the provisions of this article shall contain the names of every candidate whose nomination for any office specified in the ballot has been properly certified, and no other names. Sec. 5891, R. S. 1909; Laws 1913, p. 327. (4) John H. Bradley was the Democratic nominee for Judge of the Springfield Court of Appeals. The name of Arch A. Johnson, who was a candidate for nomination at the primaries, was printed on the official ballot as the Democratic nominee for that office, and the name of John H. Bradley was omitted therefrom. The statute expressly provides that such ballot shall not be cast and shall not be counted in any election, which means that the ballots in question cannot be counted either for Johnson or for Bradley. They cannot be counted at all, except those on which Johnson's name was written must be counted for him. Sec. 5890, R. S. 1909; Rollins v. McKinney, 157 Mo. 664; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; Donnell v. Lee, 101 Mo.App. 191, approved 244 Mo. 327; Rollins v. McKinney, 157 Mo. 664. (5) No one can print a ballot for use at the polls but the county clerk and no ballot can be counted for any candidate unless his name is printed thereon by the county clerk or by his direction or unless such candidate's name is written on the ballot by the voter. There is no other way by which the name of a candidate can be legally placed on a ballot and if his name is not on the ballot, it cannot be counted for him. Sec. 5890, R. S. 1909; McCrary on Elections (4 Ed.), sec. 225; Rollins v. McKinney, 157 Mo. 664; Nance v. Kerbey, 251 Mo. 383; Gass v. Evans, 244 Mo. 353; Saunders v. Lacks, 142 Mo. 263; Hehl v. Guion, 155 Mo. 82; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; State ex rel. v. Cook, 41 Mo. 594; Lankfort v. Gebhart, 130 Mo. 629; Turpin v. Powers, 192 S.W. 986. (6) The ballot as case by an elector for a particular person, when the ballot is plain and unambiguous, must be held to express the intention of the voter to vote for that person and a different, secret or mental intention on his part cannot be shown by parol testimony. The ballot itself, in the case at bar being plain and unambiguous, proclaims and legally determines the voter's expressed intention to vote for Arch A. Johnson, if he did so vote, and such voter cannot now vary or contradict such ballot by testifying that he intended to vote...
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