Donnell v. Lee

• Decision Date: 23 December 1902
• Citation: 73 S.W. 997,101 Mo. App. 191
• Court: Missouri Court of Appeals
• Parties: DONNELL v. LEE.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 997

101 Mo. App. 191

DONNELL v. LEE.^*

Court of Appeals at St. Louis, Missouri.

December 23, 1902.

ELECTIONS — CONTESTS — SCOPE OF INQUIRY — FINDINGS OF TRIERS — REGISTRATION — STATUTE — CONSTRUCTION — REPEAL — AMENDMENTS.

1. In contested election cases the appellate court will adopt the findings of the trier or triers of the issues of fact, when there is any substantial evidence in support thereof.

2. Rev. St. 1899, § 7104, providing that on any day of election of public officers the two judges of election having charge of the ballots shall write their names or initials on the back of the ballots, applies only to an election of public officers, and is not controlling in the election of a city officer.

3. Rev. St. 1899, § 6995, art. 1, c. 102, entitled "Elections," provides that, whenever a registration is required by law, in addition to the current number the registration number of the voter shall be indorsed on his ballot, and that no ballot not so numbered shall be counted. Rev. St. 1899, § 7104, directs that the two judges of the election having charge of the ballots shall write their names or initials upon the backs of the ballots. Rev. St. 1889, § 4785, providing that "no judge of election shall deposit any ballot on which the names or initials of two of the judges as hereinbefore provided for does not appear," was amended by Acts 1891, § 11, so as to read: "Every ballot shall be numbered in the order in which it shall be received. No judge of election shall deposit any ballot, on which the names or initials of the judges, as hereinbefore provided for, do not appear." Acts 1891, § 13, provides that "all acts or parts of acts inconsistent with this act are hereby repealed." Section 7210, Rev. St. 1899, provides that all elections in a city of 25,000 and under 100,000 inhabitants shall be subject to all the provisions of the chapter entitled "Elections." Held, that the two acts (section 6995, Rev. St. 1899, and section 4785, Rev. St. 1889, as amended) were not inconsistent or repugnant to each other, and that the act of 1891 manifested no intent on the part of the Legislature to repeal or modify the mandatory words of section 6995, when applied to city elections.

4. The ballots in a contested election case can under no circumstances be produced in open court and be made a record of.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Contest of an election by James A. Donnell, contestant, against Arthur R. Lee, contestee. Judgment for contestee, and contestant appeals. Affirmed.

The city of Springfield is a city of the third class, and is divided into eight wards. On the 1st day of April, 1902, a city election was held in said city for the election of city officers. There were three tickets in the field— a Democratic, a Republican, and a Socialist ticket. James A. Donnell was the Democratric nominee for the office of city collector. Arthur R. Lee was the nominee of the Republican party, and F. M. Johnson of the Socialist party, for the same office. In each of the eight wards there was a polling place. The returns of the election were certified and delivered by the judges and clerks of the election to the city clerk on the evening of the election, except those from one ward, in which the election is not contested. On the 8th day of April the voting list or pollbooks, tally sheets, and ballots from all the wards were produced by the clerk to the city council. The council, in compliance with an ordinance of the city, cast up the vote of the entire city as shown by the voting list, and declared the result. The result, as ascertained by the city council, showed that Lee had received 2,300 votes for collector, Donnell, 2,291, and Johnson 104. The certificate of election was delivered to Lee, who afterwards qualified and took possession of the office and is now in possession of the same. On the 14th day of May, 1902, James A. Donnell, the contestant, filed in the circuit court of Greene county his notice of contest. The principal grounds set forth in the notice with sufficient particularity are that a number of persons voted for Lee who were not legally qualified voters, and that a number of ballots in each of the wards were cast for contestant that were not counted for him; that there were a number of ballots cast for contestant that were counted for the contestee, and that a number of ballots counted for contestee were not numbered, or properly numbered; and that the face of the ballots, as returned to the clerk of the city, if properly counted, will show that contestant received a plurality of 458 votes over the contestee. The contestee filed in the same court a counter notice of contest, the main features of which are that in the First Ward there were nine ballots cast for contestee that had been changed by erasing the name of the contestee therefrom, and writing in the name of contestant, after the ballots had been returned to the clerk; that in the Fifth Ward 35 ballots had been changed in a like manner, and in the Eighth Ward 33 ballots had also been changed in the same way; that in some of the wards ballots had been prepared by the voter, or by some one for him, on the outside of the polling place, and had then been deposited with the judges of the election, and these illegal ballots had been received by the judges and counted for the contestant; that the voter voting these ballots had abstracted the ballots furnished by the judges of the election, and substituted the illegal ballots in their stead (these illegal ballots are termed "Indian ballots" in the pleadings and transcript); that a large number of ballots had been cast for the contestant by persons who were not legally qualified voters (naming them), and that a number of votes were cast for contestant that were not numbered with the current number of the ballot, or with any number showing the current and registration number of the person who cast the ballot; that in the Third Ward 241 ballots were cast for the contestant that were not numbered by the registration number of the voter.

The evidence shows that from several of the wards, and especially from the Eighth the ballots cast at the election were delivered to the city clerk in an unsafe condition; that they were placed in torn and mutilated envelopes, and those from the Eighth Ward were in an ordinary grocer's paper sack, tied up with a string; that this paper sack and some of the envelopes containing the ballots were so torn as to expose the ballots; that in this condition they were placed on the top of a desk by the clerk in his office, where they remained during the night. On the next day the clerk placed them in a compartment of an ordinary writing desk in his office, and locked it. They remained in this compartment until they were taken out on the 8th of April by the clerk and taken before the city council. The clerk testified that the office was locked on the night the ballots were delivered to him, and, so far as he could tell, they were in the same condition as when received when he took them before the council on the 8th of April; that there was no tally sheet delivered with the poll list or ballots from the Eighth Ward. Two of the judges of the election in the Eighth Ward, however, testified that one of the tally sheets was delivered with the pollbook from that ward. It is also in evidence that the office. of the clerk was guarded for two nights, after the pollbooks and ballots had been delivered, by persons remaining in the office. The contestant had his office in the room with the city clerk, and the desks were near each other, but he was in the office only for a few minutes at a time from the day of the election until the count was made by the city council, and then in the daytime, and did not know where the ballots were kept. There were four keys to the office—one in the possession of the clerk; one usually in the possession of Donnell, the contestant, who was then city collector; one in the possession of the janitor of the building; and one in the possession of the mayor. The key in the possession of Donnell was, some time before the election, delivered to a Mrs. Williams, who was an assistant of the clerk and also of Donnell, and was retained in her possession for some time after the election. There is no evidence that any of these persons having possession of the keys to the office, except the clerk, knew where the ballots were kept, or any intimation that they, or either of them, tampered with the ballots. The office was in the second story of the building. The windows on the south side of the office were not fastened, and could have been reached by a ladder from the outside, and an entrance made into the office through them.

After the result of the election had been ascertained by the city council, the city clerk placed the ballots in two ballot boxes, locked them, and secured them with strings, and placed a seal on them. Over the keyholes of the boxes he pasted a paper upon which were the initials of his name. In this condition they remained until they were afterwards opened by the clerk in pursuance of the following order made by the court at the instance of the parties to this proceeding: "That G. W. Hackney, the city clerk, at a time to suit his convenience, within 30 days from this date, first having given five days' notice in writing to each of the parties, taking to himself such assistance as may be necessary, proceed to open the ballots cast at the late election on April 1, 1902, in the city of Springfield, in the respective wards, in the presence of the counsel for both contestant and contestee; first having given them notice of the time and place of such count, and all of such persons present (the parties and their respective counsel, the clerk and his assistants) first having taken and subscribed the oath as to secrecy required by the statute in that behalf. That he proceed to open, count, compare, and exhibit the ballots as...