Hehl v. Guion
| Decision Date | 14 March 1900 |
| Citation | 55 S.W. 1024,155 Mo. 76 |
| Parties | HEHL v. GUION, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Reversed and judgment entered for contestee.
Jesse A. McDonald and Charles J. Fox for appellant.
(1) It is a familiar rule in election contest cases that when ballots have been rejected by the judges of election, the burden is on the party who claims an illegal rejection, to prove such illegality. In the absence of evidence beyond the ballots, the presumption that they were properly rejected becomes conclusive. Therefore, the nine ballots marked "rejected ballots," were improperly counted for respondent. Zeiler v. Chapman, 54 Mo. 502; McCrary on Elections (4 Ed.), sec. 459. (2) Ballots not bearing the initials or names of two judges of election, and those imperfectly initialed, in the absence of fraud connected therewith should be counted. McCrary on Elections (4 Ed.) sec. 724; Hackney's case, 31 L. T. N. S. 72; Grant v McCallum, 12 Can. L. J. 13; White v. McKenzie, 20 Can. L. J. 22; Langford v. Gebhardt, 130 Mo. 630. (a) The failure of the election officers to place their initials on ballots, as the statute provides they should do, does not invalidate the ballots. The qualified elector can not be held responsible for the failure of the judges of election to perform their duty in initialing his ballot. (b) Such an interpretation of the statute would make it violative of the State Constitution. Constitution, art. 2, sec. 9 and art 8.
W. E. Fisse for respondent.
The statute (section 4785, R. S. 1889) is mandatory only in so far as it requires the names or initials of two judges of election to be indorsed on the ballots. Its provision that this indorsement shall be written with an indelible pencil or in ink is merely directory. Bowers v. Smith, 111 Mo. 45; Parvin v. Winberg, 130 Ind. 561; Snodgrass v. Wetzell Co. Court, 44 W.Va. 56; State v. Gray, 59 Minn. 6; Jenkins v. Brecken, 7 Can. Sup. Court, Rep. 247; Monk's case, 12 Can. L. J. N. S. 113; State ex rel. v. Russell, 34 Neb. 116; Spurgeon v. Thompson, 37 Neb. 39; McLaran v. Milne Holme, 44 L. T. Rep. 289; Horning v. Burgess, 67 N.W. 446; Hanscom v. State, 10 Tex. Civ. App. 638; Miller v. Schallern, 79 N.W. 865.
This is an election contest for the office of constable in one of the St. Louis districts, growing out of the general election held November 8, 1898. By the official returns the contestee was shown to have received 4,499 votes and the contestant 4,460, showing a majority of 39 for the contestee, who was accordingly awarded the certificate of election, whereupon in due season he qualified and entered upon the office and continued in the same until he was ousted by the judgment of the circuit court in this case, since which period contestant has been and is in possession.
Upon the trial the circuit court found that contestant had received 4,375 votes and contestee 4,367, showing a majority of 8 for contestant in whose favor judgment was rendered, from which, after due procedure, the contestee had prosecuted this appeal.
I. Along with the regular returns from the various precincts there were ballots which had been rejected by the judges, and were placed in separate sealed envelopes indorsed, "rejected ballots," and signed by the judges.
Upon the trial the court treated these rejected ballots precisely as it did those that the judges of election had approved and counted, that is it judged them by their face and back without any further inquiry, and by that test found that nine of them were in due form and counted them for contestant. That was error. A ballot rejected by the judges of election and so returned should not be counted in a contest until there is some evidence to show that it is a lawful ballot, some evidence besides that shown by the ballot itself.
It is argued for contestant that no reason exists for discriminating between ballots received by the judges and those rejected and since the former are conceded to be subject to condemnation for defects appearing on their face the latter should also be judged by their face. But there is a very great difference. A ballot may be fair on its face and yet illegal because offered by one not entitled to vote, which fact the judges of election may be presumed to know because it is their duty to find out, but of which it is not their duty to make a record and return it with the rejected ballot. Whereas if a ballot has been received and counted but shows on its face that it is illegal it condemns itself. So too a ballot that has been received and counted by the judges may be fair on its face yet illegal because cast by one not entitled to vote, yet that fact can be made to appear only by proof in the trial of the contest; until it is so proven, the action of the judges is presumed to have been right. In like manner is the action of the judges in rejecting a ballot; the presumption is the same in both cases, and the way to overcome the presumption is the same, that is by proof.
The learned counsel for contestant construe sections 50 and 54 of the Act of 1895 (Ex. Sess., Laws 1895, pp. 29-31) to mean that no ballots are to be returned in the envelopes marked "rejected ballots" except in the cases specified in section 50, viz. (quoting from the brief of the counsel): "First that the particular ballot is found folded within another ballot, in which case the ballot within the other is cast out; and, second, that the ballot is without number." But that is too narrow a construction. Suppose a man presents himself at the polls, gives his name and residence number which upon reference to the registration lists are found, a ballot is handed him which he prepares in due form and hands to the judge to be deposited in the box, at the same time the judge having charge of the registry, as required in section 45 of the act, marks "voted" opposite the name, and just then the would-be voter is challenged, and upon investigation by the judges is found to be an imposter, and his right to vote denied, what are they to do with that ballot? They have no right to destroy it because their action in that respect is not final, it may be reviewed in a contest of the election. Or let us suppose in the same case no challenge is made and the ballot is put in the box and the man goes away. then comes another man who gives the same name and demands to vote, but is told that the record shows he has already voted, that is, that some one has voted in his name and on his registration. Then he brings satisfactory proof that he is the person represented by the registration, and the judges discover that the other man was an imposter, are they bound to count that fraudulent vote? It is easily susceptible of identification by its numbers. And what are the judges to do with the demand of the legal elector who is there demanding his right to vote? Judges of elections would be worse than mere dummies if they had no power to right such a wrong. In that case it would be their bounden duty to afford the honest elector the right to vote and to reject at the count the fraudulent vote. In such case no record is kept of their proceeding, and the only document to show for their action would be the rejected ballot placed in the envelope sealed and returned as the statute requires. Instances of that kind are not infrequent.
Let us suppose another case: An elector of unquestioned right presents himself at the polls, a ballot is handed him, he retires to the booth, prepares it in due form and hands it to the judge to be placed in the box, then the judge, who is a careful reader of the law and a strict constructionist, for the first time discovers that the initials of the judges are written with an erasable pencil and refuses to put it in the box, whereupon a consultation of the judges is held and it is decided to reject the ballot and give the elector another one in strict form, which is done, and he duly prepares it and it is put in the box, while the rejected one goes into the envelope marked "rejected ballots," what will the court in a contest without any evidence of the facts do with that ballot? That is not an improbable case by any means when we consider the complexity of the Australian election law, and the fact that it is left to be construed by men for the most part unlearned in the technicalities of the law. And indeed when we read the forceful arguments presented in the briefs of the learned counsel on both sides in this case on the question of the effect to be given to the initialing of the ballots, we will not be surprised if judges learned in the law should decide either way on the case last supposed.
These cases serve to illustrate some of the questions which judges of election in a faithful, intelligent and honest effort to perform their duties are required to decide, and they also illustrate the legal necessity of leaving their decisions in force until the party who challenges them shows by evidence that they were wrong.
The contestant is not entitled to those nine ballots taken from the envelopes of "rejected ballots."
II. The court rejected 17 ballots that had been counted by the judges of election for contestant and 39 that had been so counted for contestee, because they did not have the initials of the judges indorsed on them precisely in the manner the statute prescribes; three of these had no initials, and the others had the initials of but one judge.
There were ballots also contested that had the initials of the judges, but not written in ink or indelible pencil; these the trial court adjudged to be valid and counted them, 119 being for contestant and 88 for contestee.
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