Gumm v. Hubbard

• Decision Date: 04 March 1889
• Citation: 97 Mo. 311,11 S.W. 61
• Parties: GUMM v. HUBBARD.
• Court: Missouri Supreme Court

11 S.W. 61

97 Mo. 311

GUMM v. HUBBARD.

Supreme Court of Missouri.

March 4, 1889.

CONTESTED ELECTIONS — CITIZENS — APPEAL.

1. By Rev. St. Mo. § 5528, "the notice [in election contests] shall specify the grounds upon which the contestant intends to rely, and, if any objection be made to the qualifications of any voters, the names of such voters, and the objections, shall be stated therein." Section 5493 provides that a "ballot shall not bear upon it any device whatever, nor shall there be any writing or printing thereon, except the names of the persons, and the designation of office to be filled. * * * Each ballot may bear a plain * * * caption thereon, expressing its political character, but on all such ballots the caption * * * shall not * * * be designed to mislead the voter as to the * * * names thereunder. Any ballot not conforming to the provisions of this chapter shall be considered fraudulent, and the same shall not be counted." A notice by the contestee stated that at a certain precinct persons named voted for the contestant, and that the ballots were counted for him; "that each and all of said ballots had written upon them certain writing, and written words other than the designations of offices to be filled, and other than substituted names of persons to be voted for; wherefore said ballots were illegal and fraudulent, and should not have been counted." Held that, as the ground of contest did not go to the qualifications of the voters, it was not necessary to set out their names, and it was sufficient to state the grounds of contest, and that the notice was sufficient to show the ballots were fraudulent, under section 5493.

2. Under Rev. St. Mo. § 5532, providing that "every court authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleadings," the notices constitute the only pleadings. Contestant did not object to the contestee's notice until after his own evidence was in, and then only by objecting to the introduction of evidence thereunder. Held, properly overruled.

3. The words on the ballots were written by voters to express their votes for or against putting the stock law in force, the county court having before the election made an order submitting such law to the electors. Held that, as the order was made by a court having power to make it, so far as the balance of the ticket was concerned, it was immaterial whether the order was void or valid.

4. In a local election there were only two candidates for one office, the contestant, named Caleb Gumm, and the contestee, named Joel D. Hubbard. The voters were largely German. Ballots were cast marked "J. D. Huba," "J. D. Hubba," "Huber," and "J. D. Hub." Held that, as the names of the candidates were so dissimilar, it was proper to count these ballots for contestee.

5. The presumption is that votes cast are legal, and the burden of proof is on the party asserting their invalidity. It is not sufficient proof of the invalidity of votes, on the ground that a person casting it was not a citizen of the United States, to show that such person is of foreign birth; nor is it sufficient to show that he made declaration of his intention to become a citizen more than five years before the election.

6. The minor children of aliens, though born out of the United States, if dwelling within the United States when their parents are naturalized, become citizens by virtue of the parents' naturalization; and under Rev. St. U. S. § 1994, declaring that "any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen," where a widow of foreign birth marries a citizen her minor son, of foreign birth, becomes a citizen.

7. The polls, when closed, are closed to judges of the election as well as to other persons.

8. The supreme court of Missouri will not determine disputed questions of fact in contested election cases, any more than in other actions at law.

Appeal from circuit court, Morgan county; E. L. EDWARDS, Judge.

Proceedings instituted by Caleb Gumm, to contest the election of Joel D. Hubbard to the office of county clerk of Morgan county, Mo. Judgment for the contestee. Contestant appeals.

B. R. Richardson, R. F. Walker, A. L. Ross, D. E. Wray, A. W. Anthony, John D. Bohling, and Draffen & Williams, for appellant. W. S. Shirk, Edwards & Davison, and Nelson & Spurlock, for respondent.

BLACK, J.

This is an election contest between Caleb Gumm and Joel D. Hubbard, who were candidates for the office of county clerk of Morgan county at the election held on the 2d November, 1886. The official count gave Hubbard 1,103, and Gumm 1,096 votes, a majority of seven for Hubbard. After Gumm gave notice of contest, Hubbard gave a like notice, and the circuit court gave judgment for Hubbard, the contestee.

1. Gumm, the contestant, objected to the introduction of any evidence in support of a part of contestee's notice. The court did not pass upon the question of time, but took it under advisement until the close of the case, and the record does not show that any ruling was then made upon the objection. The objection, however, was not well taken. The part of the notice to which the objection was made states that at a designated precinct 12 persons, giving their names and the number of their ballots, voted for Gumm, and that the ballots were counted for him; "that each and all of said ballots had written upon them certain writing and written words other than the designations of the offices to be filled, and other than substituted names of persons voted for; wherefore said ballots were illegal and fraudulent, and should not have been counted." The same part of the notice goes on to make a like charge as to votes at other designated precincts; omitting, however, the names of the voters, and numbers of the ballots. Section 5493, Rev. St., provides: "Said ballot shall not bear upon it any device whatever, nor shall there be any writing or printing thereon, except the names of the persons, and the designations of the office to be filled; leaving a margin on either side of the printed matter for substituted names. Each ballot may bear a plain written or printed caption thereon, expressing its political character, but on all such ballots the caption or head-lines shall not, in any manner, be designed to mislead the voter as to the name or names thereunder. Any ballot not conforming to the provisions of this chapter shall be considered fraudulent, and the same shall not be counted." By section 5528, "the notice shall specify the grounds upon which the contestant intends to rely, and, if any objection be made to the qualifications...