Hope v. Flentge

• Decision Date: 29 June 1897
• Citation: 41 S.W. 1002,140 Mo. 390
• Parties: HOPE v. FLENTGE.
• Court: Missouri Supreme Court

41 S.W. 1002

140 Mo. 390

HOPE v. FLENTGE.

Supreme Court of Missouri.

June 29, 1897.

ELECTIONS — PREPARING AND MARKING BALLOTS — RECOUNT — CONTEST — NOTICE — AMENDMENT — APPEAL — FINDING OF FACT — WHEN DISTURBED — STATUTES — WHEN MANDATORY.

1. In an election contest it was not error to refuse to order a recount in certain precincts in which the poll books showed there were more votes cast than the sum of the votes for contestant and contestee, where the county clerk had already made two recounts and two certificates as to the condition of the ballot box, and it was conceded that there was no way of identifying what ballots, if any, were rejected by the election officers.

2. Two persons, whose votes were challenged on the ground of want of legal residence in the county, testified to a residence of more than 12 months in the state and more than 60 days in the county, and that they had their homes in the county. Held, that whether they were residents was a question of fact into which their intention largely entered, and a finding that they were would not be disturbed.

3. Where the provision of a statute is the very essence of the thing which it requires to be done, it is mandatory.

4. Rev. St. 1889, § 4781, as amended by Act April 4, 1891, and Act April 18, 1893, provides that on receipt of his ballot the elector shall prepare his ballot "by crossing out the groups" he does not wish to vote by drawing a line or lines lengthwise through a part or all of the column of names in the rejected groups; a partial erasure of a group by lines lengthwise of the column or in any other manner than by the erasure of a name to substitute another to be taken as a rejection of the whole group; and "then make all changes on one group" by striking out the name or names of candidates he does not wish to vote for, and writing the name or names of his choice below, so that the remaining part shall express his vote on the question submitted, etc. Held, that such statute is mandatory, and a failure to thus prepare a ballot vitiates it.

5. One name under a distinct caption is "a group," within such section.

6. At a general presidential election the official ballot contained eight tickets under as many different captions, one of which was the "Independent" ticket, and had on it only the name of a candidate for sheriff. As cast, one of these ballots had all the tickets properly erased except the "Independent" and one other. Held, that the ballot was a nullity as to candidates for all the offices, and not merely as to the candidate for sheriff, under Rev. St. 1889, § 4781, as amended by Act April 4, 1891, and Act April 18, 1893.

7. Acts 1891, p. 135, § 4784, as amended by Act April 18, 1893 (Laws 1893, p. 164), provides that any elector who declares under oath to the judges of election having charge of the ballots that he cannot read or write, or that by reason of physical disability he is unable to mark his ballot, may declare his choice of candidate to the judges, who, in the presence of the elector, shall prepare his ballot. Held, that a ballot is not void merely because the judges assist in preparing it without requiring the preliminary oath required by such statute.

8. Such statute also provides that the provisions of such section shall not be construed to allow any judge or judges to enter a booth to assist an elector in preparing his ballot; and that such judges, after reading to the elector the contents of the ballot, shall, without leaving their positions, prepare such ballot as the elector may dictate. Held, that a ballot is not vitiated merely because judges of election go into a booth to assist an elector to prepare his ballot in violation of such statute.

9. Where the notice of contest of an election gives the wrong given name of a voter, an amendment in that respect may be allowed.

Barclay, C. J., and Macfarlane and Robinson, JJ., dissenting.

In banc. Appeal from circuit court, Cape Girardeau county; Henry C. Riley, Judge.

Proceeding by E. L. Hope against E. W. Flentge to contest the election of the latter to the office of collector of the revenue of Cape Girardeau county, Mo. From a judgment in favor of contestant, the contestee appeals. Affirmed.

B. F. Davis, E. D. Hays, and Wilson Cramer, for appellant. J. W. Limbaugh and W. H. Miller, for respondent.

GANTT, J.

This is a case of contested election under the laws of this state for the office of collector of the revenue of Cape Girardeau county, to which appellant, Flentge, received the certificate of election at the general election held November 3, 1896, the official count by the county clerk showing that appellant and contestee received 2,449 votes and the contestor and respondent 2,440 votes. The official ballot for said election in said county contained eight distinct tickets, grouped under the following different headings or captions: "Democratic Ticket," "Republican Ticket," "People's Ticket," "Prohibition Ticket" (nominated by electors), "Socialist Labor Ticket" (nominated by electors), "Palmer-Buckner National Democratic Ticket" (nominated by electors), "National Ticket" (nominated by electors), and "Independent Ticket" (nominated by electors). Edward W. Flentge was the Republican candidate for collector, and E. L. Hope was the nominee of both the Democratic party and the People's party. In the time allowed by statute the respondent, Hope, gave notice of contest, assigning two grounds: First, that 12 persons whose names were given, and charged to have voted for Flentge, the contestee, were not legal voters; second, that by mistake of the election officers, 40 votes cast for contestor, Hope, at Steimel precinct, were not counted for him; and thereupon in due time the contestee, Flentge, served the contestor with notice of a counter contest, the grounds of which are: (1) That 23 persons, named, who voted for respondent, were not legal voters. (2) That at 14 specified precincts a certain number of legal and valid ballots cast for appellant were unlawfully rejected, and not counted for him. (3) That the judges of election unlawfully failed to count 41 votes cast for him at Steimel precinct. (4) That the ballots of Robert Foster and others (26 in number), cast and counted for respondent at Neeley's Landing precinct, were illegal and void, because the Democratic judge of election entered the booths, and assisted in the preparation of said ballots. (5) That the ballots of W. F. Points and others (60 in number), cast and counted for respondent at Burfordsville precinct, were illegal and void, because prepared by the judges of election without oath being first made by the electors as to their inability to read or write, etc. (6) That the ballots of Ed. Turner and William Welch, cast and counted for respondent at the court-house precinct, were illegal and void, because prepared by the judges without an oath of disability on the part of the electors. (7) That the ballots of Hy. Penturf and others (70 in number), cast and counted for respondent at Crump precinct, were illegal and void, because prepared by the judges of election without an oath of disability by the electors, and because the Democratic judge of election entered the booths, and assisted in the preparation of the ballots. At various precincts in the county the election officers refused to count and rejected those ballots which contained two groups unscratched. Thus those in which the Democratic or Republican group and the Independent group were, neither, scratched. This action forms the basis of the second ground of contest in the counter contest of the appellant, Flentge. Copies of the official ballot and of the rejected ballots accompany this statement. On the application of the contestor, Hope, there was a recount by the county clerk of the ballots cast at Steimel precinct, and, on the application of contestee, a recount of all the precincts. The county clerk made separate certificates under the two orders. At the January term, 1897, a trial was had, and a judgment rendered in favor of the contestor, Hope; the court finding that he had received a majority of 12 votes. A motion for new trial was made and overruled, and an appeal taken to this court.

Upon the record in the cause, appellant, Flentge, submits for review the following points: (1) The act of the court in overruling the motion for a recount of the votes at Friedheim and Appleton precincts. (2) The ruling on the vote of Robert Bueltemann. (3) The ruling on the votes of A. N. Payne and E. W. Nelson. (4) The refusal of the court to count for him the 48 rejected ballots. (5) The refusal of the court to receive evidence to prove that the judges entered the booths to assist in making ballots cast for contestor. (6) The refusal of the court to permit proof of ballots cast for contestor having been marked by the election judges without requiring from the electors an oath of disability.¹

1. For a proper appreciation of the first assignment it will be necessary to recite the substantial facts in full. The certificate of the county clerk made in obedience to the writ obtained by the contestee recited a recount of all the rejected ballots at the precincts named in the writ except the precincts Friedheim and Appleton. As to these he certified: "Friedheim precinct, Apple Creek township. In this precinct I find no rejected ballots." "Appleton precinct, Apple Creek township. In this precinct I found one rejected ballot, No. 127, which I also rejected because the same was not a proper ballot, but was a `Cash Book' supplement." The Cash Book is the title of a newspaper in said county. On the 8th of January, 1897, contestee filed his motion for an order requiring the clerk to open and recount all the ballots in said precincts of Appleton and Friedheim. The cause assigned was that the election officers had failed to mark the rejected ballots so that they could be identified, but had strung them on the wire with the ballots they had counted. The...