Hale v. Stimson

• Decision Date: 30 June 1906
• Parties: HALE v. STIMSON.
• Court: Missouri Supreme Court

95 S.W. 885

198 Mo. 134

HALE v. STIMSON.

Supreme Court of Missouri.

June 30, 1906.

1. ELECTIONS — CONTEST NOTICE — SUFFICIENCY.

Rev. St. 1899, § 7029, enacts that the notice to be served upon the contestee in an election contest shall specify the ground upon which contestant intends to rely. Section 7033 provides that every court authorized to determine election contests shall do so in a summary manner without formal pleadings. A notice stated that contestor made contest on the ground that there were many illegal and fraudulent votes cast for contestee, the names of the voters and precincts wherein they voted being unknown, and that there were many legal votes cast for contestor and not counted for him, the name and precincts being unknown. Held, that the notice was insufficient for indefiniteness.

2. SAME — QUALIFICATIONS OF ELECTORS — DISQUALIFICATION — INMATES OF SOLDIERS' HOME.

Const. art. 8, § 7, declares that no person shall be deemed to have lost his residence for the purpose of voting while kept in a poorhouse or other asylum at public expense. Section 8 provides: "No person, while kept at any poor house or other asylum, at public expense, nor while confined in any public prison, shall be entitled to vote at any election." Rev. St. 1899, § 6994, provides that no person while kept at any poorhouse or other asylum at public expense, except at the soldiers' home, shall be entitled to vote. Held, that the statute is not unconstitutional.

In Banc. Appeal from Circuit Court, Phelps County; W. N. Evans, Judge.

Contest by A. B. Hale against William Stimson, Sr., over the office of collector of revenue of Phelps County. From a judgment for contestor, the contestee appeals. Reversed and remanded.

Arthur P. Murphy, James B. Harrison, Charles H. Shubert, and L. F. Parker, for appellant. Joseph J. Crites, Watson & Holmes, and Sherwood & Young, for respondent.

LAMM, J.

In obeying the order of this court to formulate its pronouncement in this cause, a meed of credit is due at the threshold, to be likened to and read as an inscription over a gateway. That meed of credit is this. The labor of the writer has been made light and pleasing by the research and erudition of our Brother MARSHALL, who, going on before as a pioneer in the path of investigation, has not only blazed the way, but left map, survey, and memoranda of his route; the ultimate conclusion reached by him, on the main question — the old soldiers' vote — being adopted.

Hale and Stimson were opposing candidates in the general election of 1904 for the office of collector of the revenue of the county of Phelps. Stimson was declared elected on a canvass of the pollbook returns. He received a majority of 41 votes, it seems. Having (presumably) received his commission, qualified, and entered on the performance of his official duties, in due time Hale brought proceedings of contest by causing to be served on Stimson the following notice: "To William Stimson, Sr., Contestee: You are hereby notified that I will, at the next regular term of the circuit court within and for Phelps county, Missouri, to be begun and held at the courthouse in the city of Rolla in said county of Phelps and state aforesaid, on the 3d Monday of March, 195, contest your election to the office of collector of the revenue of Phelps county, Missouri, to which office you claim to have been elected at the general election for state and county officers held in Phelps county, Missouri, on the 8th day of November, 1904, for the following reasons, namely: (1) Because at said election you and I were opposing candidates for said office of collector of the revenue of Phelps county, Missouri, and at said election I received a majority of the legal votes cast, and was thereby duly elected to said office. (2) Because at said election I received of the whole number of votes cast for said office, 1,418 legal votes, and you received 1,341 legal votes, being a majority in my favor of 77 legal votes, thereby duly electing me to said office. (3) Because at said election, G. W Steen (here follows a list of many voters by name) voted for you and their ballots were wrongfully and illegally counted for you for said office, and at said time all of the above-named parties were inmates of the Federal Soldiers' Home of Missouri located at St. James, Phelps county, Missouri, and were at that time then and there kept and maintained in an asylum at public expenses by the people of the state of Missouri, by appropriations made by the General Assembly of the state of Missouri, by reason of which all of the above-named persons were not legal voters at said election; were not qualified voters at said election; and were not entitled to vote under the Constitution and laws of the state of Missouri, and their votes should not be counted for you, the said contestee, and against this contestant, and should be declared void, and of no effect and for naught held. (4) Because there were many other illegal and fraudulent votes cast for you at said election, the name or names of such voters, and the precinct or precincts wherein they voted not being known to me at this time, I cannot specifically notify you of their names or of the precinct in which they voted. (5) Because there were many other legal and valid votes cast for me at said election that were not counted for me, but their names not being known by me, I cannot now specifically notify you, of their names or of the precinct in which they voted. (6) Because I am now and was at the time of said election, a resident of Phelps county for more than one year, and was then and there over 21 years of age, and qualified in every regard to hold said office. When and where you can be present if you so desire."

Presently Hale applied to Cowan, clerk of the circuit court, for an order of recount (Rev. St. 1899, § 7044) directed to the county clerk, Rucker, and in vacation Cowan issued the following order: "In the Matter of the Contest between A. B. Hale, Contestant, and William Stimson, Sr., Contestee. A Contest for the Office of Collector of the Revenue of Phelps County, Missouri. The State of Missouri to B. H. Rucker, Clerk of the County Court of Phelps County, Missouri — Greeting: Whereas, an election contest has arisen in said county of Phelps between the parties aforesaid for the office aforesaid; and, whereas, the contestant has applied to me, David E. Cowan, the undersigned clerk of the circuit court of said county of Phelps, in vacation, for a writ under the provisions of section 7044, Rev. St. 1899; Now, therefore, this writ is to command you, the said B. H. Rucker, clerk of the county court of the county of Phelps aforesaid, that you proceed to open, count and examine the ballots in your said office of county clerk of Phelps aforesaid and that you compare said ballots with the list of voters in your office; which said ballots were cast at an election in your said county of Phelps, and in all and singular, the various precincts thereof, on the first Tuesday after the first Monday, in November in the year 1904, for the office of collector of the revenue of said county. And that you will make return to this writ under your hand and official seal, of such count, comparison and examination of said ballots with said list of voters, so far as the same relates to the said office in contest to the said circuit court of Phelps county, Missouri. And that if you find and are satisfied, that any person voting at the election in contest aforesaid for the candidate to fill said office, was not at the time of such voting a legal voter by reason of the fact that he was then kept at a poor house or other asylum at public expense, or at a Soldiers' Home, under the provisions of section 7797 (seven thousand seven hundred and ninety-seven) and 7798 (seven thousand seven hundred and ninety-eight) Rev. St. 1899 you will strike the names of such persons from the list of legal voters voting at said election for such candidate and state the reason of such action in your return to the Circuit Court and that in your return you do set forth and certify all the facts which either of said parties to said contest may desire, which may appear from said ballots, affecting or relating to said office in contest."

Under the foregoing order, Rucker made a general recount of the votes cast in Phelps county, and by way of return to the order certified Hale elected by a small majority. Subsequently, as we gather, a new order was made by the court directing a recount and recertification of the vote of St. James township in which was located the federal Soldiers' Home, and which recount pertained somewhat to the votes of the inmates of said Home. The judgment nisi ousted Stimson from and installed Hale in office, and Stimson appealed; the votes of the inmates of the Soldiers' Home being rejected, and the findings otherwise being of such scope and character that it is made to appear that by rejecting the old soldiers' votes, on one hand, and by accepting the certificate of the county clerk on the general recount, on the other, Hale is entitled to the office, but if the general recount be rejected, and the votes of the inmates of the Soldiers' Home be accepted, then Stimson is elected. Appellant's abstract is furnished in piecemeal and his briefs are somewhat inartificially arranged, so that it cannot always be determined what is abstract, what is mere comment, and what is intended for brief proper. It may be said, however, ex gratia, that an assignment of errors is made here covering the following grounds: (a) That the court erred in excluding testimony. (b) That the ballots had been first exposed in unsealed bags in the office of the county clerk and then kept in a vault that could not be locked for a time and, therefore, the court erred in accepting the general recount of the county clerk; and, further, that the certificate of the county clerk had no vitality because he subscribed $50 to promote the...