Montgomery v. Dormer

• Decision Date: 23 March 1904
• Citation: 79 S.W. 913,181 Mo. 5
• Parties: MONTGOMERY v. DORMER, Appellant
• Court: Missouri Supreme Court

79 S.W. 913

181 Mo. 5

MONTGOMERY v. DORMER, Appellant

Supreme Court of Missouri

March 23, 1904

Appeal from Sullivan Circuit Court. -- Hon. E. M. Harber, Special Judge.

Affirmed.

Calfee & Eubanks and Higbee & Mills for appellant.

(1) The court erred in permitting voters and judges of election to identify voters and their ballots, and to testify whose names appeared on such ballots for the office in contest. The judges have no right to know or disclose for whom any voter voted. R. S. 1899, secs. 6995 and 7114. Under section 3 article 8, of our Constitution a record is made which identifies every voter and his ballot, and secures both the secrecy of the ballot and absolute verification. This was intended not only to provide the means for detecting illegal votes and frauds in elections, but also to prevent frauds and perjuries in cases of contests. The evidence shows that all the ballots in controversy were preserved. This provision of our Constitution is exclusive of every other means of identifying the voter and his ballot. The ballot is what counts, and is the best and only evidence of how the voter voted. Ex parte Arnold, 128 Mo. 256; Lankford v Gebhart, 130 Mo. 636, approved in State ex rel. v Spencer, 164 Mo. 41; Windes v. Nelson, 159 Mo. 68; State ex rel. v. Sutton, 3 Mo.App. 408; Donnell v. Lee, 73 S.W. 1004; Major v. Barker, 35 S.W. 544. (2) The General Assembly shall by general law designate the court or judge by whom the several election contests shall be tried, and regulate the manner of trial and all matters incident thereto. Sec. 9, art. 8, Const. Sections 7044 to 7049, have been enacted under this mandate of our Constitution; they regulate the procedure. The ballots are sacredly preserved for evidence in such cases; the procedure so authorized is exclusive and the ballots can be counted and the result of the election verified in no other manner. If these sections do not in their terms permit the court to hear parol testimony to identify and prove the contents of ballots, then such evidence is excluded. There is no law for proceeding outside of these sections. The court erred in permitting voters and judges of election to testify how any voter voted. State ex rel. v. Lobsinger, 7 Mo.App. 106; Ex parte Arnold, 128 Mo. 263; State ex rel. v. Oliver, 163 Mo. 693; State ex rel. v. Spencer, 166 Mo. 271; Nash v. Craig, 134 Mo. 361. (3) The court has no jurisdiction of the subject-matter of this proceeding. The notice of contest was not made returnable to the January term of the Sullivan Circuit Court, which was the first term held fifteen days after the official counting of the votes and service of notice of contest. It is such first term that has jurisdiction of the subject-matter of this contest. Wilson v. Lucas, 43 Mo. 290; Higbee v. Ellison, 92 Mo. 13. The notice was made returnable on December 15th, when the regular October term was in session. That term began before the election. Fannon v. Plumer, 30 Mo.App. 25; State ex rel. v. Railroad, 101 Mo. 150; Aull v. St. Louis Trust Co., 149 Mo. 14; Kansas City v. Ford, 99 Mo. 91; State ex rel. v. Spencer, 166 Mo. 279.

Wattenbarger & Bingham, John W. Clapp and Childers Bros. for respondent.

(1) The Constitution and the laws of the State, each qualify the oath of judges of election, and permit said judges to testify how any voter voted, when "required to do so as a witness in a judicial proceeding." Constitution of Missouri, art. 8, sec. 3; R. S. 1899, sec. 6989; Ex parte Arnold, 128 Mo. 265. (a) The General Assembly has made no provisions for the return of rejected ballots to the county clerks outside of cities where the law requires registration; and no provision being made for the preservation of such rejected ballots, after the respondent showed by the poll book that a party voted, and from the face of the poll book that his ballot was rejected, it was competent to introduce parol evidence to show for whom the voter voted. R. S. 1899, secs. 6995, 6996, 7000, 7001; People ex rel. v. Pease, 84 Am. Dec. 242 (27 N.Y. 45). (b) The ballot of a voter, when rejected by the judges of election, becomes a mere memorandum of the voter's intention to vote for his choice of candidate to fill the office, and all authorities agree that parol evidence is not to be excluded because of the fact that a documentary memorandum was made of the fact, unless it relates to a contract, etc. Reynold's Stephens' Evidence, 129; 1 Greenleaf on Ev., sec. 90; Wharton, Evidence, sec. 77; Keene v. Meade, 3 Peters 1; Thomas v. Barnes, 156 Mass. 581. (c) Oral evidence of transactions are not to be excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, or other disposition of property. Hersom v. Henderson, 21 N.H. 224. (d) When it was shown that the voter had parted with the memorandum of his intentions to vote as the law directs, and that the judges had rejected it as a ballot, and since there is no provision made by law for the return of such memorandum to the clerks of the county courts, respondent's whole duty, in relation to the best evidence, was performed, and he had the legal right to produce the voter himself to testify for whom he voted, without the aid of the memorandum. Ex parte Arnold, supra; R. S. 1899, secs. 6995, 6996, 7000, 7001; McCrary on Elec. (3 Ed.), secs. 444, 445; Kneass' Case, 2 Pars. 553; People v. Board of Supervisors, 58 How. Pr. 145; State v. Hilmantel, 23 Wis. 309; Thompson v. Ewing, 1 Brewst. 67; State ex rel. v. Spencer, 164 Mo. 33. Secondary evidence of the contests of a writing not in the control of the party is admissible. Walker v. Newhouse, 14 Mo. 377; Barton v. Murrain, 27 Mo. 235; Boyce's Trustees v. Mooney, 40 Mo. 105; Denton v. Hill, 5 Tenn. 73; Am. and Eng. Ency. (1 Ed.), title "Evidence," p. 87. (2) There being no allegation in the notice of contest that the canvassing board had made any mistake in the count, or that it had committed any fraud in casting up the returns as certified to the county clerk, the trial court had no authority to make an order directing the county clerk to break the seal and recount, or search for rejected ballots. R. S. 1899, secs. 7044 and 7049; State ex rel. v. Spencer, 164 Mo. 271; People v. VanCleve, 53 Am. Dec. 69 (1 Mich. 362); McCrary on Elec. (3 Ed.), sec. 400. (a) It is the legal ballot cast and counted, that the Constitution and the law have agreed to keep from public view, protect and preserve and hold under absolute secrecy, and not the fraudulent ballot, nor the rejected ballot, and if such fraudulent and rejected ballots are returned to the county clerk, that fact does not confer jurisdiction on the trial court to make an order on the clerk to open and recount the legal ballots. State ex rel. v. Spencer, supra; State ex rel. v. Spencer, 166 Mo. 271. (b) An illegal voter is a mere intruder, and has neither right or privilege under the Constitution to have his unlawful conduct kept a secret, or his fraud condoned under sanction of the law. McCrary on Elections (3 Ed.), sec. 457; State v. Hilmantell, 23 Wis. 422; State v. Olin, 23 Wis. 309. (c) It is only the certified results of the legal ballots cast, counted and returned from the various voting precincts as the law directs, that the canvassing board has to deal with in making the grand total vote given to the candidate, and the canvassing board is not authorized to go further than to examine if the poll books, tally sheets and ballots are properly returned. The result thus found prima facie determines who is elected, but is not conclusive, and the respondent had the legal right to go behind the returns and show that votes were cast for him and not counted, and that illegal votes were cast and counted for appellant. R. S. 1899, sec. 7007; Mayo v. Freeland, 10 Mo. 629; State ex rel. v. Steers, 44 Mo. 223; State ex rel. v. Garesche, 65 Mo. 480; State ex rel. v. Trigg, 72 Mo. 365; State ex rel. v. Elkin, 130 Mo. 108; People v. Van Cleve, 53 Am. Dec. 69.

VALLIANT, J. Robinson, C. J., dissents.

OPINION

In Banc

VALLIANT J.

This is a contested election case. The parties were rival candidates for the office of clerk of the circuit court of Sullivan county at the election held November 4, 1902. By the official returns of the election officers it appeared that Dormer, the contestee, received 2,252 votes, and Montgomery, the contestant, 2,251. Dormer appearing then to have a majority of one, was awarded the certificate and entered into the office. On November 24, Montgomery served notice on Dormer that at the next term of the circuit court in that county, to be begun and held on the 15th day of December, 1902, he would contest the election. The grounds alleged for the contest were substantially that certain persons named were not legal voters because they had not resided in the State one whole year before the election, and were not residents of the township or precinct in which they voted, yet that they did vote for the contestee and their votes were counted for him; also that certain persons named were legal voters and voted at the election for contestant, and the election officers wrongfully refused to count their votes for him; that the contestant received a majority of the legal votes cast and should have been declared elected.

On December 13th the contestee filed in court and served on contestant a counter notice of contest, stating that certain legal ballots cast for him had not been counted and certain illegal ballots cast for contestant had been counted, and that contestee had in fact received the majority of the legal votes.

There are three regular terms of the Sullivan Circuit Court January, April and October. The October term, 1902, was in session November 6th, and adjourned to...