Hall v. Schoenecke
| Decision Date | 28 May 1895 |
| Parties | Hall v. Schoenecke, Appellant |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
C. W Bigger for appellant.
(1) The court below erred in finding for the contestant, for the reason that W. L. Torrence, A. M. Stephenson and J. P Stephenson were legal voters at said election notwithstanding the fact of their being students at the college located in said city, at the time of said election. Constitution of the state of Missouri, art. 8, sec. 7; McCrary on Elections [3 Ed.], secs. 66, 68, pp. 41, 42. (2) The court below erred in finding for the contestant, for the reason that W. C. Graham was a legal voter at said election, as his parents had their domicile in said city for more than one year prior to said election and said Graham being a minor when he arrived in said city, before voting. Lacy v. Williams, 27 Mo. 280; Lewis v. Costello, 17 Mo.App. 593; Walker v. Walker, 1 Mo.App. 404. (3) The lower court erred in finding for contestant, for the reason that C. G. Adair was a legal voter at said election, as one voting for a candidate for mayor in said city, being city officer and elected by the voters at large, is a legal voter for said candidate in a ward other than the ward in which he resides, provided there is no fraud in the election. And for a further reason, one having no family has his place of residence where he generally lodges. State ex rel. Brown v. Westport, 116 Mo. 582, and cases cited; R. S. of 1889, sec. 6570, sub sec. 17. (4) The court below erred in finding for contestant for the reason that the ballots cast by J. C. Hawley, M. Dunbar, J. E. Irvin, G. W. Reed, T. F. Willis and J. W. Holliday were illegal, said parties having not prepared their ballots at said election, in the booths made and provided for that purpose. Laws of Missouri, 1893, p. 156, sec. 4741, R. S. 1889, amended; Blair v. Ridgeley, 41 Mo. 40; State ex rel. Breckenridge v. Cook, 41 Mo. 383.
Lewis & Ramsay with T. F. Willis for respondent.
(1) The whole case was heard by the court without any instructions or declarations of law and the finding and judgment was a general one for contestant, and the presumption is that the finding of the facts and the application of the law thereto made by the trial court is correct. Johnson v. Lullman, 88 Mo. 567; Gruen v. Bamberger, 25 Mo.App. 89; Gumm v. Hubbard, 97 Mo. 311; Bray v. Kremp, 113 Mo. 552; Finkelnburg's Practice in Supreme Court, 103. (2) The partial rulings mentioned on page 48 of appellant's abstract do not pretend to cover all the facts in the case. Only seventeen votes are mentioned as having been ruled upon, when, in fact, three hundred and eighty-five votes were submitted to the court and ruled upon; nor are the facts found upon which these rulings are based. In no sense did the court make a special finding of facts. If all the points urged in appellant's brief were well taken, still it would not show that the judgment is for the wrong party. Finkelnburg's Practice in Supreme Court, 103. (3) The presumption is against the right to vote on the part of college students coming to college from without the city limits of Tarkio. Such is the general law of this state crystallized in the constitution. Art. 8, sec. 7, Constitution of Missouri; 6 Am. and Eng. Encyclopedia, p. 278. How many of the students were excluded or how many were counted does not appear in the record. Only W. L. Torrence, A. M. Stephenson and J. P. Stephenson are referred to in appellant's brief. (4) W. C. Graham had not resided in the state one year and was not entitled to vote. Art. 8, sec. 2, Constitution of Missouri. His Pennsylvania residence could not have been changed without both an intention to remove and an actual removal. People v. Holden, 28 Cal. 123; 2 Am. and Eng. Encyclopedia, p. 279; McCrary on Elections [3 Ed.], sec. 53. The guardian and ward authorities cited by appellant are not applicable. (5) The preparation by judges and clerks of election of their ballots without going into the booth is, at best, but an irregularity which does not interfere with the spirit of the law or purity of the election. No coercion, electioneering or fraud existed. Bowers v. Smith, 111 Mo. 45; same case with foot notes in 16 L. Rep. Anno. 754; Council v. Bush, 10 L. Rep. Anno. 171. The object of the law is a "fair election and an honest return," or, as sometimes tersely stated, "a free ballot and a fair count." The statute does not say: Such ballots shall be void or that they shall not be counted, and the irregularity being harmless they are not void. Revised Statutes, 1889, secs. 4779, 4785; Gumm v. Hubbard, 97 Mo. 319; Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350; McCrary on Elections [3 Ed.], secs. 190, 194; see, also, Bowers v. Smith, and Council v. Bush, above cited. The only ballots that the Australian ballot law says shall not be counted, are those not containing the initials of the judges (sec. 4785), and those not prepared by the clerk (sec. 4772).
At an election held in the city of Tarkio, on April 3, 1894, for the office of mayor, appellant received 185, and respondent 184 of the votes counted by the election officers. Respondent contested the election.
By order of court the ballot boxes were opened, the ballots examined, and the vote recounted by the county clerk, who reported the result thereof to the court. Upon a trial the court found that contestant was elected and judgment was rendered accordingly. Contestee appealed.
I. The votes of three students who voted for contestee, and whose votes were counted by the election officers, were rejected by the court. This ruling of the court is assigned as error.
The evidence discloses the facts that two of the young men whose votes were rejected had formerly lived in the state of Kansas and came to Tarkio for the purpose of attending college. They were still students in college at the date of the election. Their parents, by whom they were supported and their tuition was paid, continued to reside in Kansas. One of them testified that he regarded Tarkio as his home, and expected to reside there after his education was finished. The facts in the case of the other voter were substantially the same, except that his parents resided in Missouri, though not in the city of Tarkio.
The constitution of the state provides that "no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence * * * while a student in any institution of learning." This provision is but a declaration of the law as generally recognized. McCrary on Elections [3 Ed.], secs. 66-68; 6 Am. & Eng. Ency. of Law, 278.
Each case must, then, depend upon the facts. There is no doubt that a student may become a resident of the place where the college is located, though he only went there for the purpose of attending school. Whether he has done so or not, depends upon all the facts and circumstances. The fact that he is supported and maintained by his parents, and spends his vacation with them, are strong, but not necessarily conclusive, circumstances to prove that he has not changed his residence. See cases cited in note 6 Am. & Eng. Encyclopedia of Law, p. 278. The question is, as in other cases, largely one of intention, though as to this, the evidence of the party himself is not necessarily conclusive.
The question in this case was one of fact for the court. There were no declarations of law asked or given, and we can not review the finding of the court, in law cases, upon questions of fact, when there is substantial evidence to support such finding.
II. W. C. Graham voted for contestee and his vote was counted by the election officers. The vote was rejected by the court.
The evidence shows that the mother of Graham, who was the head of the family, moved from Pennsylvania to Missouri, when he was about eighteen years of age. He remained in the state of Pennsylvania for about two years after his mother removed to this state. He arrived in this state while still a minor, and after that lived in the family of his mother. He had not lived in this state for one year before he voted. The evidence does not show that the mother removed to this state for the purpose of making it her permanent residence. The presumption that would arise from the mere facts that she removed to this state and remained therein two years might be rebutted by evidence that such was not her intention.
A temporary absence of a person from his usual residence through a series of years, does not necessarily cause...
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