Donnell v. Lee

• Decision Date: 23 December 1902
• Citation: 73 S.W. 997,101 Mo.App. 191
• Parties: JAMES A. DONNELL, Contestant, v. ARTHUR R. LEE, Contestee
• Court: Missouri Court of Appeals

73 S.W. 997

101 Mo.App. 191

JAMES A. DONNELL, Contestant, v. ARTHUR R. LEE, Contestee

Court of Appeals of Missouri, St. Louis

December 23, 1902

Appeal from Greene Circuit Court.--Hon. Jas. T. Neville, Judge.

AFFIRMED.

STATEMENT OF THE CASE.

The city of Springfield is a city of the third class and is divided into eight wards. On the first 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 Democratic 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 eighth day of April the voting list or poll books, 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 fourteenth 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 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 thirty-five ballots had been changed in a like manner and in the Eighth ward thirty-three 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 two hundred and forty-one ballots were cast for the contestant that were not numbered by the registration number of the voters.

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 eighth 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 eighth 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 poll book from that ward.

It is also in evidence that the office of the clerk was guarded for two nights, after the poll books 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, sometime 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 sometime 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 thirty 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 to such election in the following manner: that he exhibit to the parties and their attorneys the face of each ballot cast, and at the time of so doing conceal from such parties and their attorneys the number of such ballot, until the count is complete in the ward counted at that time; and that he cast up and count the votes so cast for each candidate in such ward or precinct. That thereafter, and in a manner so as not to disclose what candidate was voted for on such ballot, and by keeping the face of the ballot concealed at the time, he proceed to exhibit the numbers and backs of such ballots to the parties and their attorneys and compare the numbers of such ballots with the poll books and registration books of such ward so as to ascertain that the numbers on such ballots correspond with the numbers on such poll books and registration books; and if any ballots cast at such election do not correspond in numbers to the numbers on the poll books and registration books he shall take a note thereof; that in each and every ballot in each and every ward he shall make note of and make a certificate to this court of all the facts appearing upon the ballot which either party shall desire to be brought before this court, or a note taken of, and he shall count and add up the number of votes cast in the whole city for each of the said candidates, and certify the same to this court in this manner, and that he make a tabulated statement to this court showing the official count in each ward, as well as the count made by this order."

In compliance with this order the count was made by the clerk in the presence of the counsel for the respective parties, after administering to them an oath of secrecy. A recount of the ballots, under the order of the court, showed that Lee had received 2,269 votes, Donnell 2,306 and Johnson 111, giving Donnell a plurality of 37.

During the count the contestee's counsel discovered what they believed to be a number of suspicious ballots and had the clerk number each of them on their face and then amended the contestee's notice of contest,...