Curry v. Cabliss

• Decision Date: 28 February 1866
• Citation: 37 Mo. 330
• Parties: JAMES W. CURRY, Appellant, v. JOSEPH CABLISS, ISAAC PHILLIPS, AND JAMES BURNETT, Respondents.
• Court: Missouri Supreme Court

37 Mo. 330

JAMES W. CURRY, Appellant,

v.JOSEPH CABLISS, ISAAC PHILLIPS, AND JAMES BURNETT, Respondents.

Supreme Court of Missouri.

Febuary Term, 1866.

Error to Worth Circuit Court.

This cause was heard at the September term, 1865, of the Worth Circuit Court, and the demurrer to the following petition sustained:

“Plaintiff by his petition states that the defendants were the judges of the election held on the 6th day of June, 1865, in the county of Worth and State of Missouri, for the purpose of taking a vote on the proposed Constitution of the State of Missouri, adopted by the Convention of said State on the 8th day of April, 1865, and acting as such at the precinct at the town of Oxford in Green township, in said county of Worth; that on said day, plaintiff being in all respects a legal voter of said county, and entitled to vote at said election, having fully complied with the law respecting voters previous to offering his vote or ballot, appeared at said precinct and delivered his vote or ballot to the defendant, as such judges of election, which was by them received and deposited in the ballot-box. Plaintiff further states, and afterwards, to-wit, on the said sixth day of June. 1865, the defendants, as such judges as aforesaid, illegally, willfully, maliciously and corruptly threw out the vote or ballot so given by plaintiff at said election, and refused to count the same with the other votes or ballots given and deposited on said day at said election, but destroyed the same. Wherefore plaintiff states that by reason of the said illegal, corrupt and malicious acts of defendants, as such judges, in depriving plaintiff of his right to have his said vote counted, and in throwing out and destroying the same, he is damaged to the amount of fifteen thousand dollars for which he brings his suit.”

Richardson et als., for appellant.

I. The court erred in sustaining the demurrer to appellant's petition, for the petition is sufficient and states facts sufficient to constitute a cause of action. (Ashby v. White et als., 1 Smith's Lea. Cas. 290; Broom's Leg. Max. 101-2; Sedg. on Dam. 29-31; Jenkins v. Waldron, 11 Johns. 114; Lincoln v. Hapgood, 11 Mass. 350; Osgood v. Bradley, 7 Greenl. 411; Tozer v. Child, 40 Eng. L. & Eq. 89; 9 Ohio, N. S. 568.)

II. And the defendants are as much liable for throwing out and refusing to count plaintiff's vote, as they would be for refusing to receive the same; for then they, as judges, were acting outside of, and beyond their authority. (Laws of 1863, p. 17; Kelley v. Bemis, 4 Gray, Mass. 83; People v. Pease, 30 Barb. 588: Sullivan v. Jones, 2 Gray, 570; Craig v. Burnett, 32 Ala. 728.)Dixon & Murray, for respondent.

I. The court below committed no error in sustaining the demurrer, as the petition is manifestly defective on several grounds. The petition contains sweeping averments of conclusions of law, but few statements of fact. If the plaintiff was legally qualified to vote at said precinct, facts in reference to the manner of his qualification ought to be stated, not conclusions of law. (R. C. 1855, p. 1227, § 3; Beech v. Gallup, 2 N. Y. Code, 66; Parker v. Totten, 10 N. Y. Pr. 334; Voorhies' N. Y. Code 169; Biddle v. Boyce, 13 Mo. 532: Smith et al. v. Dean, 19 Mo. 63; Pye v. Rutter, 7 Mo. 548; Jones v. Brinker, 20 Mo. 87.)

We hold that the petition, in order to make a cause of action against the defendants, ought to aver that the plaintiff convinced or satisfied defendants of his right to vote, and aver the fact that he took the oath of loyalty before said judges. Anything short of this is insufficient. Facts must be stated, and not conclusions of law. When plaintiff avers that he was a legal voter, he states a conclusion of law, which is insufficient. (Adams v. Holley, 12 How. 326; Thomas v. Desmond, 12 How. 321; Meyers v. Machado, 14 How. 149; Reteltas v. Meyers, E. D. Smith, 83; Tallman v. Green, 3 Sand. 438; Stone v. DePuga, 4 Sand. 681; Garvey v. Fowler, 4 Sand. 665; Boyce v. Brown, 7 Barb. 80; Van Schaick v. Winne, 16 Barb. 95; Murdock v. Chenango Mut. In. Co., 2 Comst. 216; Seney's Ohio Code, 102 & 104; How. N. Y. Code, 192.) This rule of law is too well established in this State, New York, and other States to need further comment.

II. Again, as we understand the law, we hold that as soon as the plaintiff's ballot was deposited in the ballot-box it became public property, and that plaintiff had no more control over it than any other citizen of the State. We take it to be a well settled principle of law, that when the whole community are injured by the unlawful act of others, no one individual among those injured can sustain an action unless he avers and proves special damages, and not always then.

The plaintiff must aver that he proved to the judge his right to vote before he can maintain an action for the rejection of the same in the count; we refer specially to the case of Blanchard v. Stearns, 5 Metc. 298. In that case the court say, that “it must be shown that the plaintiff furnished the defendants with sufficient evidence of being a voter, and requested them to insert his name on the list, before they refused to receive his vote or omitted to insert his name. (1 Hill. Torts. 85.)

The leading case on this subject is Ashby v. White et als., reported in 1 Smith's Lea. Cas. 290. In that case the plaintiff avers that he was a ““burgess,” and an inhabitant of the borough of Aylesbury, when the election was held; that being such burgess and inhabitant he had a right to vote, &c.

Curry, the plaintiff in this case, merely alleges that he was qualified as a voter of Worth county, but not that he was a qualified voter of the precinct at Oxford, in the township of Green. We hold that he ought to allege in his petition the place of his residence; and if a non-resident of Green township, who administered the oath required by the Constitution, including the oath of loyalty, for such oaths would be legally void if administered by any other person than the judges of said election.

If defendants tampered with the ballot-box and destroyed legal votes, the 38th section of the election law, Stat. 703, provides the punishment, not only of the judges, but of the clerks also, which is a fine of two hundred dollars, to be recovered by civil action, in the name of the county, or by indictment, in either case the fine to go into the county treasury.

HOLMES, Judge, delivered the opinion of the court.

The questions to be considered here are only such as arise upon demurrer to plaintiff's petition. The chief objection was that the petition did not state the facts necessary to be shown in order to constitute the plaintiff a qualified and legal voter, but only conclusions of law. The petition did not aver any of the particular facts on which his right to vote depended. It recited only that the plaintiff “being in all respects a legal voter of said county, and entitled to vote at said election, having fully complied with the law respecting voters, previous to offering his vote or ballot,” appeared before the judges and delivered his vote, which was received and deposited in the ballot-box, and afterward thrown out.

The constitution, ordinances, and statutes of the State, define the qualifications of voters at this election, and the several provisions on the subject show what facts must exist with regard to any person claiming a right to vote in the State, before he can be entitled to vote at any election. The evidence of these facts must be produced or the facts shown to the judges of the election, in the manner provided by...