Breuninger v. Hill
| Decision Date | 15 March 1919 |
| Citation | 210 S.W. 67,277 Mo. 239 |
| Parties | MAGGIE BREUNINGER et al., Appellants, v. THOMAS J. HILL et al., Judges of County Court |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Alonzo D. Burnes, Judge.
Affirmed.
B. J Woodson, Vinton Pike and W. B. Norris for appellants.
(1) There was no legal supplemental registration. R. S. 1909 sec. 6070. (2) The election was void because held at polling places other than and long-distant from the regular legal polling places in the City of St. Joseph. Laws 1917, p. 471 sec. 84. (3) The election was void because no booths, compartments, separate places, or stalls were erected or used to afford the voter a place to make out his ballot in secrecy in the City of St Joseph and because no railings were placed about the judges. R. S. 1909, secs. 5897, 5901; Laws 1913, p. 328, sec. 5900. (4) The election was void because held in total disregard of the Australian Ballot Law. R. S. 1909, secs. 5897, 5901, 5919; Laws 1913, p. 328, sec. 5900; Laws 1917, p. 471, sec. 84; State ex rel. Miles v. City of Macon, 193 Mo.App. 306, 269 Mo. 151; State ex rel. City of Tarkio v. Seibert, 116 Mo. 415; Gaston v. Lamkin, 115 Mo. 20; State ex rel. City of Marshall v. Hackmann, 203 S.W. 960.
Strop & Mayer for respondents.
(1) There being no fraud charged and all of the evidence affirmatively showing that the election was free from fraud, duress, intimidation or wrong-doing of any character, and that it resulted in a full, free and fair expression of the will of the people, the absence of stalls did not vitiate the election. Yonkers v. Susong, 156 N.W. 25; Allget v. Callahan, 144 S.W. 1166; Links v. Anderson, 168 P. 605; Perry v. Hackney, 90 N.W. 483; Moyer v. Van De Vanter, 29 L. R. A. 670; Skelton v. Ulen, 217 Mo. 383; State ex rel. City of Marshall v. Hackmann, 203 S.W. 960; Carabajal v. Lucero, 158 P. 1088; 9 R. C. L. 1003, sec. 102; McCrary on Elections (4 Ed.), sec. 225. (2) The fact that a number of polling places and registration places were not at the places fixed by ordinance as polling places, especially since notice of the change was given every voter, will not render the election void. State ex rel. Canton v. Allen. 178 Mo. 555; State ex rel. v. Westport, 116 Mo. 582; Light & Magnetic Co. v. Lebanon, 163 Mo. 246; Bowers v. Smith, 111 Mo. 45; Curlan v. City of Devil's Lake, 25 N. Dak. 207, 141 N.W. 756, Ann. Cas. 1915 C, p. 624; Smith v. Hackett, 98 A. 140; State ex rel. v. Shanks, 125 N.W. 122. (3) The statute required only two judges and two clerks. Laws 1913, p. 327. "The Good Roads Law" of 1917 carried a provision that bond elections for building roads under that act should be held in the same manner as general elections are held and that no person should be permitted to vote who would not be qualified to vote at a general election held on that date. Laws 1917, p. 471, sec. 84. The Legislature did not have in mind the general election law as originally passed merely, but the general election law as amended from time to time. As amended in 1913, that law provided that at bond elections only two judges and two clerks should be required. But, even if the statute required six judges, the requirement was merely directory ,and a failure to appoint the full number of judges, not having affected the merits of election, will not invalidate the election. Sanders v. Lacks, 142 Mo. 254. (4) The notice of supplemental registration, published by the county clerk over his signature as clerk, attested by the seal of the court was sufficient. The notice was not rendered less effective simply because the court, having made an order for the supplemental registration, did not enter of record an additional order directing the clerk to publish the notice. State ex rel. City of Memphis v. Hackmann, 273 Mo. 695; McCrary on Elections (4 Ed.), sec. 178; Demaree v. Johnson, 150 Ind. 419; State v. Doherty, 16 Wash. 382; DeShon v. Smith, 10 Iowa 212; Jordan v. Hayne, 36 Iowa 9; Phillip v. Town of Albany, 28 Wis. 340; 9 R. C. L. 993, sec. 15. (5) The fact that some of the voters prepared their ballots in the presence of the judges does not invalidate the election. Absent fraud, such votes should be counted; this, too, even in a case where such votes determine the result of the election. Hall v. Schoenecke, 128 Mo. 661; Altgelt v. Callahan, 144 S.W. 1166.
OPINION
In Banc
In January, 1918, an election was held in Buchanan County to determine if a bonded indebtedness of two millions of dollars would be incurred, to provide funds for the building of roads in said county. At this election there were 7784 votes cast. Of this number, 6342 were in favor, and 1442 against the incurring, of the indebtedness. Before the bonds authorized by the election were issued by the county court, in April, 1918, Maggie Breuninger, one of the plaintiffs, for herself and others similarly situated, brought this suit in the circuit court of Buchanan County against the county judges to enjoin them from issuing said bonds. Others appeared, and on their application, were made parties plaintiff. Defendants entered their appearance.
The petition of the plaintiff, Breuninger, as well as those of the others, alleged that the county judges were threatening to issue bonds in the sum of two millions of dollars payable in twenty years, under the authority of the election held in January, 1918; that their proposed action was unauthorized because of the invalidity of the said election, in that it was held (1) at other than the usual polling places; (2) that only two judges and clerks were appointed and acted at each voting precinct; (3) that no order was made and entered of record by the county court calling said election; (4) that no order was made and entered of record authorizing the pretended supplemental registration in said county; (5) that the pretended supplemental registration was illegal because not held at the regular polling places in the City of St. Joseph; and (6) that the election was held in total disregard of the Australian Ballot Law.
Defendants' answer admitted their official character; that unless restrained, they would issue the bonds referred to; that bonds, if issued, would constitute a county indebtedness; that the plaintiff, Breuninger, was a resident assessed taxpayer of said county; that St. Joseph was a city of the first class and contained more than 25,000 and less than 100,000 inhabitants; and that only two judges and two clerks for each voting precinct were appointed by the county court and served at each voting precinct during said election.
For further answer, defendants alleged the presentation to the county court of the petition for the calling of the election for the submission to the voters of a proposition to issue bonds in the sum of two million dollars for road purposes; that pursuant to said petition, an order calling an election for January 24, 1918, was made and entered of record December 28, 1917; that an order was made by the county court for a special registration for June 12, 1918, and was entered of record on December 31, 1917; that the required notice of said registration was given; that the places used for registration were the same places used as polling places at said ele -- tion; that in some precincts the places used as polling places were not the same places as the usual polling places, and that where the same places were not used the places used were described, and the reason for their use stated; that notice of the location of all the polling places was given to the voters by publication in the daily newspapers published in the City of St. Joseph, and by mailing a printed notice of any changes to every voter in the City of St. Joseph, designating the location of the polling places for the purpose of this election; that it was the custom of the county to use canvas booths as polling places in the City of St. Joseph; that because of the inclement weather, it was not possible to find persons who would serve as election officials, if such booths were used; that because of this fact, the defendants secured such places as could be obtained as polling places in such precinct; that the utmost effort was made to find and secure such places as would be suitable for an orderly and peaceable election, and as would afford voters of each precinct a fair opportunity to vote secretly and free from duress or interference; that there were thirty precincts in Buchanan County outside of the City of St. Joseph; that in all of said precincts the county had permanent buildings which were used as polling places, and that said buildings were so arranged as to comply in the minutest detail with the requirements of the Australian Ballot Law, and were used at such places at said bond election; that none of said defendants have any personal interest in said election or the result thereof; and that the acts performed by them were in good faith and an honest endeavor to have a fair election in accordance with the provisions of law.
The reply was a general denial to the new matter contained in the answer.
On the 28th day of December, 1917, during the regular November Term of the county court of Buchanan County, a petition was presented to said court, requesting it to call a special election for the submission to the qualified voters of said county a proposition to issue bonds in the sum of two million dollars for grading, constructing and paving the roads. On said 28th day of December, the court entered of record an order calling said election for January 24, 1918; and on the 31st day of December, 1917, the court made an order for a supplemental...
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