Bradley v. Cox

• Decision Date: 30 June 1917
• Docket Number: No. 20009.,20009.
• Citation: 271 Mo. 438,197 S.W. 88
• Parties: BRADLEY v. COX.
• Court: Missouri Supreme Court

197 S.W. 88

271 Mo. 438

BRADLEY v. COX.

No. 20009.

Supreme Court of Missouri. In Banc.

June 30, 1917.

Motion for Rehearing July 12, 1917.

Election contest brought in Supreme Court by John H. Bradley against Argus Cox. Judgment for contestant.

William C. Marshall, of St. Louis, J. L. Fort, of Dexter, Ralph Wammack, of Bloomfield, A. L. Oliver, of St. Louis, R. L. Ward, of Caruthersville, N. C. Whaley, of Poplar Bluff, W. H. Douglass, of St. Louis, and John T. McKay, of Kennett, for contestant. Barbour & McDavid, of Springfield, Morton Jourdon, of St. Louis, W. J. Orr, of Springfield, Howard Gray and J. W. Halliburton, both of Carthage, Lewis Luster and Sam Wear, both of Springfield, and Pope & Terrill, of Vienna, for contestee.

BLAIR, J.

This is an election contest. The office involved is that of judge of the Springfield Court of Appeals. Contestee has been declared elected and has been commissioned. In the primaries held August 1, 1916, contestant and contestee were regularly nominated by the Democratic and Republican parties, respectively. There are 44 counties in the Springfield Court of Appeals district. The only questions raised in this proceeding grow out of happenings in Maries county. In the 43 counties, other than Maries, contestant received 86,928 votes, and contestee received 87,271 votes. In Maries county contestee received 721 votes, making his total 87,992. One vote cast in Maries county is conceded to contestant, making his uncontested total 86,929. 1,311 other votes for judge of the Springfield Court of Appeals were cast in Maries county, and the principal question is whether these votes should be counted for contestant. Contestant's name, as the name of the regularly nominated Democratic candidate for the office in question, was duly certified by the secretary of state to the county clerk of Maries county. Two newspapers, the Maries County Gazette and the Belle Times, were designated as the papers to publish the lists of nominations for the various offices to be filled at the 1916 general election. The list as published in the latter was correct. In the former the published list contained the name of Arch A. Johnson, instead of that of contestant, as the Democratic nominee for the Springfield Court of Appeals. A third paper, the Home Advertiser, a paper of general circulation in Maries county, published at Vienna, the county seat, published the correct list of all nominations. The Gazette printed the official ballots for the county, and in these printed the name of Arch A. Johnson, instead of that of contestant, as the Democratic candidate for the Springfield Court of Appeals. The error was not discovered until several days after the election. These ballots were the ones used in Maries county, and were otherwise correct. They were, on election day, handed out to the voters as the Democratic ballots for that election, and were used by the voters who voted the Democratic ticket in that election.

In his notice of contest contestant asked that a commissioner be appointed. Hon. H. E. Alexander, of Cape Girardeau, was appointed and took the testimony of many witnesses. The net result of this was evidence that practically all the 1,311 voters who cast the ballots in question intended to vote and believed they were voting for the Democratic nominee for judge of the Springfield Court of Appeals. Our commissioner so finds from the evidence. He concluded that the 1,311 ballots should be counted for contestant.

Among other things, the parties hereto stipulated the following:

"Tenth. That the name of Arch A. Johnson was printed on the Democratic ticket in Maries county as if he were the Democratic nominee for judge of the Springfield Court of Appeals, and that all the Democratic tickets used at the various precincts, and at all the precincts in Maries county, at the general election on November 7, 1916, contained the name of Arch A. Johnson printed thereon as if he were such nominee. * * *

"Thirteenth. That there were 1,311 ballots cast in Maries county at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon, and cast with said Johnson's name thereon as if he were the Democratic nominee for judge of the Springfield Court of Appeals. * * *

"Fifteenth. That there were 111 ballots cast in Maries county at the general election on November 7, 1916, bearing the name of Arch A. Johnson as if he were the Democratic nominee for judge of the Springfield Court of Appeals by legally qualified voters, whose evidence has not been taken, and who have not been stipulated upon."

Contestee's answer contains the following:

"Contestee admits and avers that by some mistake or inadvertence, unknown to contestee, the name of Arch A. Johnson as a candidate for Judge of the Springfield Court of Appeals was printed on the Democratic ballots that were provided for the use of voters in said Maries county, and that said ballots were used by said voters, and that there were cast for said office in said Maries county at said election for contestant one vote, for contestee 721 votes, and for Arch A. Johnson 1,311 votes."

On the argument it was further stipulated that the persons casting the 1,311 votes counted for Arch A. Johnson voted the regular Democratic ticket.

Under section 5855, R. S. 1909, all nominations for elective offices, with certain exceptions with which we are not concerned in this case, must be made by primary election held under article 4, c. 43, R. S. 1909. Section 5877 provides that the party primary nominees for offices shall be the candidates of that party for such offices, and their names as such candidates shall be placed on the official ballot at the following election. Section 5878 requires the secretary of state to certify and publish the primary results as to state and district offices and to certify to the chairman of each party's state committee so much of the certificate as relates to the nominees of the party of whose committee such chairman is the head. Section 5879 requires the secretary of state to certify to the county clerk of each county the nominees for each state and district office for which the voters of the county are entitled to vote.

By section 5889 it is provided that all ballots cast in elections for public officers in this state must be printed at public expense. Section 5890 makes it the duty of the county clerk of each county to provide printed ballots for every election for public officers in which the electors of his county are entitled to participate, and requires such clerk—

"to cause to be printed in the appropriate ballot the name of every candidate whose name has been certified to or filed with him in the manner provided for in this article."

It further provides that:

"Ballots other than those printed by the respective clerks of the county courts according to the provisions of this article shall not be cast or counted in any election."

By section 5891 it is provided that:

"Every ballot printed under the provisions of this article shall be headed by the name of the political party by whom the candidates whose names appear on the ballots were nominated, and each of said ballots shall contain only the names of the candidates nominated by said party. Underneath the name of each candidate shall be left a blank space large enough to contain a written name."

By section 5895 it is required that all the ballots and lists of nominations for office shall be printed and published, respectively, "under the direction and with the consent and approval of the couty court of the county in which any such election is to be held." Section 5896 provides that:

When "it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office, or in the printing of ballots" certain courts or judges "may, upon application by any elector, by order, require the clerk of the county court to correct such error, or to show cause why such error should not be corrected."

Under section 5899 each voter is entitled to receive from the judges of election one ballot "of each political party voted for at said election," and it is made the "duty of such judges of election to deliver such ballots to the elector"; the judges first writing their initials upon the back of the ballots. Section 5900 provides that the voter, upon receiving the ballot, shall immediately retire to one of the booths in the polling place, and that:

"He shall prepare his ballot by selecting the ballot he desires to vote. He shall erase or strike out the name of any candidate he does not wish to vote for and write the name of his choice underneath."

Section 5851 requires the county clerk, prior to the election, to publish "the nominations to office certified to him by the secretary of state, and also those filed in his office." The lists so published are required by section 5852 to be arranged in the order and form in which they will be printed upon the ballot.

Contestant was the regular nominee of his party. The law required his name to be printed upon the party ballot as the party nominee and candidate. Instead, through mistake, the name of Arch A. Johnson was printed thereon as such nominee and candidate. The party ballots bearing Johnson's name so printed were delivered by the judges to the voters, and, it is stipulated, 1,311 such ballots were cast in Maries county at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Johnson's name thereon as if he were the Democratic nominee for judge of the Springfield Court of Appeals. It is further stipulated these ballots were cast by persons who voted the regular Democratic ticket. The answer avers that 1,311 of these ballots with Arch A. Johnson's name printed thereon as candidate for judge of the Springfield Court of Appeals were cast by the voters of Maries county, and avers that Johnson received 1,311 such...