Gantt v. Brown

• Decision Date: 26 June 1912
• Parties: JAMES B. GANTT, Contestant, v. JOHN C. BROWN, Election Contest
• Court: Missouri Supreme Court

149 S.W. 644

244 Mo. 271

JAMES B. GANTT, Contestant, v. JOHN C. BROWN, Election Contest

Supreme Court of Missouri

June 26, 1912

Judgment for contestee.

W. C Marshall and W. M. Williams for contestant.

(1) None of the ballots cast at the election in 1910 for the offices in contest (or otherwise) had indorsed thereon the registration or line number of the voter casting the same and, therefore, none of those ballots could legally be counted in this case. Sec. 6189, R. S. 1909 (Laws 1903, p 170); sec. 5905, R. S. 1909; Constitution, sec. 5, art. 8; Donnell v. Lee, 101 Mo. 191. In McKay v Minner, 154 Mo. 608, this court, construing sec. 7109 (now sec. 5904, R. S. 1909), held that section to be mandatory. In West v. Ross, 53 Mo. 350, and Ledbetter v. Hall, 62 Mo. 422, this court held that the provision of sec. 5905, that no ballot not so numbered shall be counted, is mandatory, and inasmuch as the ballot did not contain the voting numbers, the elections in those cases were held to be invalid, and resulted in throwing out the vote of each of the townships in question. No fraud was charged in either of those cases, and yet all ballots not containing the voting numbers were thrown out. Thus we have not only the express mandate of the statute supporting the proposition here contended for that the ballots cast in 1910 in the city of St. Louis should not be counted or considered in determining these cases, but we have direct precedents in the decisions of this court. (2) The record in this case discloses that at the close of registration and revision prior to the November election, 1910, there remained on the registration books in St. Louis 170,204 votes. At the close of registration and revision prior to the municipal election in 1909 there were 150,122 votes. Thus showing an increase in round numbers of 20,000 voters in eighteen months, or practically an increase of about 100,000 inhabitants in St Louis in that time. There was a registration in January, 1911, prior to the charter election, and at the close of that registration and revision there remained on the books 154,950 names, thus showing a decrease in three months of about 16,000 names, or a decrease in population in St. Louis of about 80,000 inhabitants. There was another registration and revision in March, 1911, prior to the municipal election, and at the close thereof there remained on the registration books 150,916 names, or a decrease of 4,000 from January to March, 1911, and in round numbers a decrease of 20,000 registered voters between November, 1910, and March, 1911. Thus the face of the registration books show that between the registration in 1909 and the registration in 1910 there were added 20,000 names to the registration list in St. Louis, and that between the November election, 1910, and the municipal election in April, 1911, there was a decrease of substantially 20,000 names on the registration list. So that it thus appears that the registration in 1909 was substantially the same as the registration in 1911, being 150,122 in 1909 and 150,916 in 1911. Thus showing an unusual, abnormal and suspicious increase of about 20,000 names on the registration books between 1909 and 1910, and a corresponding decrease between 1910 and 1911. The testimony in this case clearly shows that the Board of Election Commissioners, the people of St. Louis and the public press were alarmed by and suspicious of the registration prior to the election in 1910. So much was this the fact that the Board of Election Commissioners caused a canvass to be made after the close of the registration and revision in 1910 by the police force in St. Louis, which covered 149 precincts out of only eight wards and a part of the ninth ward, with the result that the police reported that they found 6909 names on the registration lists of persons who had no right to be there. Mr. Kortjohn testified that the election in 1910 was essentially a prohibition election and that the election of candidates for political offices was lost sight of. The testimony shows that the registration of 1910 was so carelessly and negligently conducted that there were 29,427 instances in which the registering officers wholly failed to enter on the registration books their conclusions as to whether the persons registered were or were not qualified voters. In this connection it is proper to note the contention of the contestees that the signing of the registration books at the close of registration of each day by the judges and clerks of registration and the certificate at the end of each registration book as to the number of registered voters was a determination by the judges that all persons whose names appeared on the registration books unerased were qualified voters, should dispense with the necessity of entering under the column headed "Qualified Voter" whether each voter was or was not a qualified voter, is wholly untenable, for the reason that the signing by the judges of their names on the registration book at the close of each day's registration was not intended to be and does not have the legal effect of a judgment as to the qualifications of the persons whose names appear on the registration lists. Sec. 6199 provides "that at the end of the day's registration each of the said judges shall sign his name at the end of the list on each page of the registration book." The only purpose intended by the law under this provision was to prevent any one adding names to the registration books after the close of registration in the precincts, and such signing was not a determination by the judges that the person whose names appeared above their signatures were qualified voters. This is made perfectly manifest when we consider that the books are so signed by the judges at the close of each day's registration, whereas the revision of the registration lists occurs later, to-wit, on Friday of the fourth week prior to the election (Sec. 6206, R. S. 1909). It is, therefore, idle to contend that the judges at the close of registration each day by signing the registration books have adjudicated that the persons whose names appear on the registration books above their signatures were qualified voters when they were subsequently required to revise the lists and to strike off the names found by the clerks of election on their canvass as not entitled to register. This contention of contestees is further answered by the fact that in some instances the judges of election had expressly entered their judgment that certain persons were not qualified voters. The testimony further shows that in four precincts of the Seventeenth Ward there were 10,082 negroes registered from 177 houses; that there were 1,135 negroes who registered on September 22, 1910, voted November 8, 1910, and were stricken off in January, 1911. Of these, 113 whose names appeared on the registration books and on the poll books, were not on the verification lists made by the clerks on their canvass, nor on the printed lists posted in the precincts. In addition to this there were 156 of these negroes as to whom no entry was made by the clerks on the verification lists as to whether they were found by the clerks on their canvass. In addition there were 30 of these negroes who were marked on the registration books as having voted in November, but whose names were not found on the poll books. In addition to this there were 426 of these negroes who were marked "moved" on the registration books or marked "challenged" on the verification lists, and yet the poll books show they voted at the election in 1910. In short, there were 931 of the 1,135 negroes who were shown to have either improperly registered or were not entitled to vote at the election in 1910. (3) Contestants except to the report of the commissioners that the proof adduced in this case falls short of showing that the 1,135 negroes who were registered in September, 1910, voted in November, 1910, and were stricken off in January, 1911, did not in fact exist or reside at the places from which they registered. The commissioner did not find the facts in this regard and what is termed his finding in this respect, we respectfully submit is an unwarranted conclusion of the commissioner and is not a finding of the facts at all. The testimony adduced abundantly shows that all of these negroes registered for the first time in St. Louis in September, 1910, voted in November, 1910, and were stricken off at the day of revision in January, 1911. To offset the prima facie case thus made by contestants contestees called about 15 of the 66 negroes who appear to have been registered from houses on the south side of Clark avenue, between Sixth and Seventh streets, and immediately adjacent to the corner of Seventh and Clark avenue, and it appeared from their testimony that they were not bona fide residents of St. Louis, but were transients, and that the houses from which they were registered were not residences in any proper sense of the term. The contestees did not attempt to produce the balance of the challenged negro voters except in, say, a half dozen instances, but called ward, precinct or block committeemen of the Republican party who claimed to have made a canvass of their respective districts after the close of the registration or revision or before the election in 1910. Nearly all of these were negroes, and in nearly every instance when they would be asked the question whether they knew the person whose name was registered they would answer they did and that they lived at the place from which they were registered, yet on cross-examination it was developed that they did not know these people personally, had never seen them before 1910, and did not know what had become of them, and that they were not at the places from which they registered after...