Lankford v. Gebhart

• Decision Date: 19 November 1895
• Parties: Lankford, Appellant, v. Gebhart, Appellant
• Court: Missouri Supreme Court

32 S.W. 1127

130 Mo. 621

Lankford, Appellant, v. Gebhart, Appellant

Supreme Court of Missouri

November 19, 1895

Appeal from Daviess Circuit Court. -- Hon. E. J. Broaddus, Judge.

Reversed.

Alexander & Richardson and J. F. Hicklin and J. P. O. Givens for contestant as appellant.

(1) Under the statutes, a ballot is fraudulent, without regard to intent, when it has on the face or back thereof any writing or printing not expressly authorized, hence all ballots having the names of the voters written on the back thereof are fraudulent, and should not have been counted. R. S. 1889 secs. 4671, 4677, and secs. 4773 and 4780, as amended by Session Acts, 1891, pages 134 and 135. West v. Ross, 53 Mo. 351; Ledbetter v. Hall, 62 Mo. 422; Gumm v. Hubbard, 97 Mo. 311; Bowers v. Smith, 111 Mo. 45 -- dissenting opinion of Judge Gantt. (2) Sections 4671 and 4677, article 1, and sections 4773 and 4780, article 3, chapter 60, R. S. 1889, as amended by laws of 1891, page 134, section 4 and page 135, section 8, prescribe what writing and printing shall be on the face and back of a ballot, and the last clause of section 4671, supra, expressly states that "Any ballot not conforming to the provisions of this chapter (chapter 60, which includes all the sections above cited) shall be considered fraudulent, and the same shall not be counted." (3) This court should review the finding of the court below that Seth Sullivan, John Persinger and Orva Cook, were qualified voters. Section 4710, Revised Statutes, 1889, provides that courts authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleading. (4) The court made a separate finding in each case, and the evidence relating to the qualifications of each voter is set out in the record, so that the objections made by this court to the review of the evidence in Gumm v. Hubbard, 97 Mo 321, do not obtain here. (5) The ballot of Albert Cornelius should have been rejected, as the undisputed evidence in the case shows that it was received and counted after the polls had been closed, and the booths removed, and the judges and clerks had finished counting the vote, and were filling out the certificates, etc. (6) The statutes prescribe how the polling places shall be arranged and the voting conducted with great clearness. R. S. 1889, secs. 4672, 4673, and 4779 4780, 4781, 4782, 4784 as amended by Laws, 1891, p. 135.

Hamilton & Dudley for contestee as respondent.

(1) The court did not err in counting for contestee the ballots of Frank Scott and others, nine in number, with names and initials of voter written on the back thereof. Section 4780 as amended by section 8, Acts of 1891, page 135, prescribes what shall be on backs of ballots; it is merely directory, and does not say if there is anything else on the back of the ballot it shall be fraudulent, or that it shall not be counted. To reject these ballots would be to establish a rule by which an officer of election could destroy the effect of a ballot, cast in good faith by a legal voter, by placing a name, initial, or mark on the back of it. McCrary on Elections [3 Ed.], page 312, sec. 463; 6 Am. & Eng. Encyclopedia of Law, page 350 (bottom), note; Weggington v. Pacheo, 5 Cong. El. Cases, 5. (2) And under the same statute, which is far more sweeping than ours, the court held the words "For president, Hancock and English," written on the ballot in pencil, would not invalidate it, and that the ballot should be counted. Coffee v. Edmonds, 58 Cal. 521. (3) The presumption of the law is in favor of the legality of these ballots. There is no evidence that the voter wrote the names there, and there is no presumption that they did so, as contended for in contestant's argument; but, conceding, for the sake of argument, that they were written there by the voter, it ought not to invalidate said votes. Section 4671, Revised Statutes, only prescribes what the face of the ballot shall contain, and does not undertake to say what shall be written on the back thereof, and is designed to prevent the placing of anything on the face of the ballot calculated to mislead the voter. Gumm v. Hubbard, 97 Mo. 317; Applegate v. Egan, 74 Mo. 223. (4) While the back of the ballot is regulated by section 4870, Revised Statutes, as amended by Session Acts, 1891, page 135, relating to the duties of the judges in delivering the ballots to the electors, this section provides that the judges shall write their names or initials on the back of the ballot, and no other writing shall be on the back thereof except the number, but it does not say that the ballot shall be void if it contains anything else, as does section 4671 in speaking of the face of the ballot. Bowers v. Smith, 111 Mo, 62. (5) Said nine votes should not be rejected for another reason: There was no notice given that they would be contested. Contestant's notice must give the names of the votes contested, and the grounds for which such votes were contested. Gumm v. Hubbard, 97 Mo. 317. (6) The cases of Orva Cook, Seth Sullivan, and John Persinger are all questions of fact to be decided by the evidence. It is not the province of the court to determine disputed questions of fact in contested election cases. Gumm v. Hubbard, 97 Mo. 321; Turner v. Drake, 71 Mo. 285; Gillispie v. Stone, 43 Mo. 351; Steinburg v. Gebhardt, 41 Mo. 521; Blumenthal v. Torini, 40 Mo. 159. (7) The vote of Albert Cornelius was legally cast, and the court committed no error in counting it. The testimony shows that this vote was cast before 6 o'clock, the time fixed by law for closing the polls. (8) The court committed no error in counting Franz Zentz for Frank Vance. (9) A mutilated ballot is presumed to be accidentally torn. Kreitz v. Berensmeyer, 17 N.E. 232.

Hamilton & Dudley for contestee as appellant.

(1) Jerry Snider and C. G. Buckingham were legal voters, and should have been counted as such. Residence is prima facie evidence of domicile. (2) The vote of Benjamin Porterfield should not have been counted. See State, etc., v. Daylort, 77 Mo. 628. (3) The original domicile continues until changed for another. State v. Finn, 4 Mo.App. 347; 1 Am. Lead. Cas. 747; Williams v. Whiting, 11 Mass. 424; McCrary on Elections, sec. 36. (4) A man's residence may be said to begin from the time at which he removes his family, although he may have determined to remove, and may himself have gone to his new place of residence before that time. 6 Am. and Eng. Encyclopedia of Law, 278; Williams v. Whiting, 11 Mass. 424, supra; Webster case, Cushing's Election Cases, 526; Weggington v. Pacheo, 5 Cong. Elec. Cas. 13. (5) Residence is not lost or gained by forming an intention to remove without actual removal; the intention and act must concur. State v. Hallet, 8 Ala. 159; Lincoln v. Hapgood, 11 Mass. 350; Smith v. Croom, 7 Fla. 81; Brewer v. Lemins, 36 Me. 428; Griffin v. Wall, 32 Ala. 149; 6 Am. and Eng. Encyclopedia, 279; 5 Am. and Eng. Encyclopedia, 876, and cases cited. (6) Vote of James Gillilan should not have been counted. Removal, with intention of making home elsewhere for an indefinite time, with floating intention to return at some future time, will not save residence. State v. Groom, 10 Iowa 308; State v. Freist, 4 Harr. (Del.) 558; State v. Gray, 1 Tex. 401; Holmes v. Green, 7 Gray (Mass.), 299. (7) Carlos B. Tomlin was not a legal voter. See Dicey on Domicile, 67; 5 Am. and Eng. Encyclopedia of Law, 862; Wright v. Schneider, 32 F. 215; Harris v. Forth, 4 Cranch (U.S. Cir.) 710. (8) Contestant contested ballot number 6 because it had no name written opposite to it. The clerks having revealed the fact that it was cast for contestant, he can not now be heard to say it was a legal ballot. See Ledbetter v. Hall, 62 Mo. 422; West v. Ross, 53 Mo. 350. (9) Ballot number 342, cast by Jas. Cummings should not have been rejected. Coffee v. Edwards, 58 Cal. 521. Section 4671, Revised Statutes, 1889, is only designed to prevent the placing on the ballot anything designed to mislead the voter. Applegate v. Egan, 74 Mo. 263; Gumm v. Hubbard, 97 Mo. 319; Atkison v. Lay, 115 Mo. 538. (10) The clerk had no authority to open and count the ballots, because the writ to open, count, and compare with list of voters and examine ballots was not served as required by law. R. S. 1889, secs. 4721, 4722.

Alexander & Richardson and J. F. Hicklin and J. P. O. Givens for contestant as respondent.

(1) Jerry Snider was not a legal voter, for the reason that he was an inmate of an asylum, and kept at public expense. Const. of Mo., sec. 8, art. 8. He was a nonresident of the state of Missouri. (2) C. G. Buckingham was not a legal voter for the reason that he was not a resident of Daviess county for more than sixty days prior to the election. Const. of Mo., sec. 2, art. 8. If a resident of Daviess county, then his legal residence was in Washington, and not in Benton township. Const. of Mo., sec. 7, art. 8. (3) Benjamin Porterfield was a legal voter, having removed to Daviess county, with intent to change his domicile, more than sixty days prior to the election. Walker v. Walker, 1 Mo.App. 404; State ex rel. v. Dayton, 77 Mo. 678; Johnson v. Smith, 43 Mo. 499; Chariton Co. v. Moberly, 59 Mo. 238. (4) James Gillilan, under the testimony, was a resident of Jamesport township, and had been for nearly forty years. This court, if it follows the rule laid down heretofore, will not review the finding of the lower court. State v. Barton, 71 Mo. 288; Gumm v. Hubbard, 97 Mo. 321. (5) Carlos B. Tomlin was a legal voter. There is no evidence that he had changed his domicile. His absence from the state, in the civil service of the United States did not forfeit his residence here. Const. of Mo., sec. 7, art. 8. (6) Ballot number 6 was properly counted, as it appeared...