Franklin v. Hume Consolidated School District
| Decision Date | 16 July 1917 |
| Citation | 197 S.W. 345,271 Mo. 585 |
| Parties | EUGENE FRANKLIN, Appellant, v. HUME CONSOLIDATED SCHOOL DISTRICT et al |
| Court | Missouri Supreme Court |
Appeal from Bates Circuit Court. -- Hon. C. A. Calvird, Judge.
Affirmed.
James A. DeArmond and Smith & Chastain for appellant.
(1) The court erred in receiving evidence over plaintiff's objection tending to show that Joe Thorn, who voted at the election in question, was not a legal voter. (a) Because there was no evidence even tending to show that he voted "against the loan." (b) Because no question was ever raised by the officers of the election as to his qualifications as a voter, and his vote had been received counted and certified by the officers of the election. (2) The court erred in holding that the evidence showing the publication of the result of this election in the local newspaper was not competent. It tended to show what was the result proclaimed as provided by the statute. R. S. 1909 sec. 5910 and sec. 10879. (3) The court erred in refusing to permit plaintiff to prove that Carl Palmer, who voted at this election "against the loan" and whose vote was received and so counted by the election officials and afterwards was thrown out after it was by them ascertained that by so doing the result of the election would be shown to be changed, was in fact a legal voter there when he cast his ballot. R. S. 1909, secs. 5818, 5900, 5905, 5908, 5909 and 10879; 10 Am. & Eng. Ency. Law, p. 706; Heidelberg v. St Francois County, 100 Mo. 69; Hopkins v. Swift, 37 S.W. 155. (a) The judges having once passed upon Palmer's qualifications to vote and having received his ballots and placed them in the box, whatever judicial functions they may have had as to this vote was then functus officio. Bowen v. Hixon, 45 Mo. 340. (b) Defendants having been permitted to prove over plaintiff's objections what they claimed were the statements of Palmer as to his residence and right to vote, if these were material, as the court held, plaintiff should have been permitted to introduce the testimony of Palmer tending to disprove that affirmative testimony, and showing just what he did say, and this the court denied to plaintiff. (4) The six defendants, directors of defendant school district, along with the three judges and two clerks of the election were charged with fraud in the matter of throwing out the vote of Palmer, thus changing the result of the election as certified, none of whom, save one judge of election and one school director went upon the witness stand. The facts were peculiarly within their knowledge. Hence the inference will be indulged that the charge is true. Mabary v. McClurg, 74 Mo. 575; Baldwin v. Whitcomb, 71 Mo. 651; Strolmeyer v. Zeppenfield, 28 Mo.App. 268; Ins. Co. v. Smith, 117 Mo. 294; Stephenson v. Kilpatrick, 166 Mo. 262; Henderson v. Henderson, 55 Mo. 559. (5) This inference is authorized by the erasure of a vote tallied, changing the total as extended, the failure to certify the returns for thirteen days after the election when required to do so within two days and the admitted refusal of plaintiff's request to see the records. R. S. 1909, sec. 5911 and sec. 10879. (6) Palmer being a legal voter as plaintiff offered to prove and his votes having been received and deposited in the ballot box and counted on all four propositions voted on there, though his ballot on this one proposition was afterwards thrown out by the judges, in an equitable proceeding, as is this, the certificate or return of the election may be impeached for fraud and the real facts ascertained and determined. McCrary on Elections, sec. 458, p. 290; 15 Cyc. 376 (3); Riggs v. Stephens, 17 S.W. 1016; Neiser v. Thomas, 99 Mo. 229; Taber v. Wilson, 34 Mo.App. 96; Louisville v. Park Court, 65 S.W. 860; State ex rel. v. Cunningham, 153 Mo. 642; State ex rel. v. Trust Co., 261 Mo. 448; People v. Wiant, 48 Ill. 263; Boven v. Smith, 47 Ill. 485; Powell v. Holman, 50 Ark. 85; Hopkins v. Swift, 37 S.W. 155. (7) There were not two or more elections as defendants claimed, but only one, at which there were submitted to the voters, and upon which they voted, four propositions at this annual school meeting. State v. Bechel, 34 N.W. 342; In re Denny, 59 N.E. 362; In re Davis, 61 P. 811; Bryan v. Lincoln, 70 N.W. 252; In re County Seat, 15 Kan. 500; McCrary on Elections (2 Ed.), sec. 163. (8) Under section 12, article 10, of the Constitution of Missouri, the proposition to incur the debt and to issue the bonds was not carried at the election by the required two-thirds majority of all the votes cast at the election even if it were conceded that the Palmer vote was illegal or that the question of whether or not his vote should have been counted "against the loan" was to be determined alone by the second returns made by the judges and clerks of this election. 10 Am. & Eng. Ency. Law (2 Ed.), p. 754; 15 Cyc. 390; State ex rel. v. Winkelmeir, 35 Mo. 103; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Mayor, 73 Mo. 435; State ex rel. v. Francis, 95 Mo. 51; State ex rel. v. McCowan, 138 Mo. 193-4; State ex rel. v. White, 162 Mo. 535; State ex rel. v. Burns, 195 Mo. 251; School District v. Oellien, 209 Mo. 468; State ex rel. v. Kansas City, 233 Mo. 188; State ex rel. v. Wilson, 129 Mo.App. 242; Bauch v. Cabool, 165 Mo.App. 486; State ex rel. v. Sutterfield, 54 Mo. 396-7; Stebbins v. Judges, 66 N.W. 594; Chestnutwood v. Hood, 68 Ill. 132; Knight v. Shelton, 134 F. 423; Green v. State Board, 5 Idaho, 130; State v. Grace, 20 Ore. 154; Walker v. Oswald, 68 Md. 146. (9) The "assent" by the majority of the voters voting at the election as required under section 12 of article 10 of the Constitution of Missouri, is an affirmative as opposed to a passive agent. State v. Brassfield, 67 Mo. 339; State ex rel. v. Kansas City, 233 Mo. 189; State ex rel. v. Wilson, 129 Mo.App. 242; Hawkins v. Carroll, 50 Miss. 735; Mason v. Moore, 73 Ohio St. 275; Knight v. Shelton, 134 F. 423.
J. A. Silvers, J. B. Bryant and Silvers & Silvers for respondents.
(1) The election judges not only had authority to reject the ballot of Palmer at the time of the count; but it was their duty, at any time before certifying and making return of the result of the election, to reject the ballot of any voter whom they found, upon investigation, to be not qualified. Hehl v Guion, 155 Mo. 79. (2) Under the Constitution, the assent necessary to authorize the issue of bonds is that of two thirds of the voters voting on the proposition. A reasonable construction of the provision, and one which is supported by authority in states where the question has been determined, is that the assent required is the assent of two thirds of those who vote for that purpose. That the adoption or rejection of the bond proposition is to be determined by the result of the election in so far as it is an election for that purpose. The States of Kentucky and Washington have identical constitutional provisions (save that in the latter state the majority required is smaller). In both those states the Supreme Courts have held that, where the bond issue is voted upon at the same election as are other propositions, the result as to the bond issue is determined by the number of votes cast on that particular proposition. Worthington v. Board of Education, 71 S.W. 879; Montgomery County Court v. Trimble, 47 S.W. 773, 42 L. R. A. 738; Board of Education v. Winchester, 120 Ky. 591; Fox v. Seattle, 86 P. 379. The foregoing cases go into the question thoroughly and are conclusive. They have been followed by later cases, to-wit: Metcalf v. Seattle, 25 P. 1010; Frost v. Central City, 120 S.W. 367; Russell's Admr. v. Railroad, 124 S.W. 840; Inglehart v. Dawson, 136 S.W. 210; Marion v. Haynes, 164 S.W. 79; Fowler v. Oakdale, 166 S.W. 195. The constitutional provision here under consideration can not be said to fall within the first class mentioned by this court in State ex inf. v. Kansas City, 233 Mo. 188. The two thirds required is not two thirds of all the voters of the municipality. But it is two-thirds of those voting. Yet it does not fall within the second class specified by this court in that case; for the majority required is not two-thirds of those voting at any general election. It evidently falls within the third class mentioned in that case; for the majority here required is two-thirds of the voters voting, at an election held for that purpose. Certainly this can mean nothing except that a two-thirds of the voters who vote for that purpose, or upon the proposition, is sufficient to carry it. It has so been construed by the legislative branch of our state government. The Act of the Legislature approved March 30, 1911, says: "And if two-thirds of the votes cast on the proposition shall be 'for the loan,' the district board shall be vested with the power to borrow money." Laws 1911, p. 395. (3) The nine ballots which were defaced, or mutilated or not scratched either for or against the loan, were not votes. The voters who deposited such ballots were rightly considered as not voting. It was the same as though they had not attended the election. And where the assent required is of those voting, voters casting such ballots cannot be counted either for or against the proposition. City v. Kew, 132 P. 780. (4) The court cannot go behind the official return of the judges of election and enter into the question of whether they rightly determined the qualifications of a voter. State v. Gamma, 149 Mo.App. 700; State ex rel. v. Kerens, 180 Mo.App. 355. (5) Such was the position assumed by the plaintiffs at the trial. Appellants cannot switch theories of the case, adopting a different theory on appeal from that adopted at the trial. "A case cannot be tried upon one theory below, and tried upon another and different...
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