Nance v. Kearbey

• Decision Date: 28 June 1913
• Parties: NANCE v. KEARBEY.
• Court: Missouri Supreme Court

158 S.W. 629

NANCE v. KEARBEY.

Supreme Court of Missouri.

June 28, 1913.

1. ELECTIONS (§ 15)—RIGHT TO VOTE—STATUTORY REGULATIONS.

The right to vote, though a constitutional right of those citizens possessed of the qualifications prescribed by Const. art. 8, § 2, may be regulated by statute, but may not be denied or abrogated.

2. ELECTIONS (§ 10) — STATUTORY REGULATIONS —CONSTRUCTION.

Election laws are liberally construed in aid of the right of suffrage, and the choice of electors must be respected unless expressed in disregard of mandatory statutory safeguards.

3. ELECTIONS (§ 186)—LEGALITY OF VOTES— STATUTES.

The court, in applying the statutory regulations to determine the legality of votes cast and counted, must determine whether the statute makes a specified irregularity fatal, and if so, the courts will enforce the statute, but if not, the courts will be slow to so construe the statute as will operate to disfranchise voters because of errors of officials.

4. ELECTIONS (§ 178)—CONTESTS—GROUNDS.

Irregularities in the official ballot, in the grouping of candidates or otherwise, not objected to until after the election, do not justify a contest of the election.

5. ELECTIONS (§ 269)—CONTESTS—STATUTES.

The right to contest an election is statutory.

6. ACTION (§ 35)—STATUTORY RIGHTS—ENFORCEMENT.

Remedies expressly provided by a statute to enforce statutory rights are, as a general rule, exclusive.

In Banc. Appeal from Circuit Court, Butler County; John P. Foard, Judge.

Election contest by W. G. Nance against J. P. Kearbey. From a judgment for defendant, plaintiff appeals. Affirmed.

Lew R. Thomason and Abington & Phillips, all of Poplar Bluff, and E. A. Green, of Jefferson City, for appellant. David W. Hill, of Poplar Bluff, Albert Chandler, of St. Louis, John M. Atkinson, of Jefferson City, and Arthur V. Lashly, of Clayton, for respondent.

LAMM, C. J.

At the general election in November, 1912, Mr. Kearbey received 11 more votes than Mr. Nance for the office of sheriff of Butler county. On a canvass of the returns such result was promulgated, the county clerk so certified, a formal certificate of election followed, with the Governor's commission attested by the great seal and the superscription of the Secretary of State. In due time Mr. Nance contested the election by notice (R. S. 1909, § 5924) returnable to the January term, 1913, of the Butler circuit court. Cast on a trial on the merits, he appealed, and the cause, advanced under R. S. 1909, § 5960, was submitted on briefs and oral argument at our April term.

A retrospective glance over the course election contests have run in this court shows the case stands aloof and solitary; for, observe, the pleadings and agreed statement of facts are such that no recount of votes was necessary. So it is confessed that no votes but honest ones were cast or counted, and that they were honestly counted as cast. So the trial below proceeded on the concession in open court that there was no fraud on the part of electors, election officers, or the county clerk, nor were there any fatal irregularities in the pollbook returns or mistakes in casting up the vote. The case is singular in this: The grounds of contest relate solely to alleged nomination and other pre-election irregularities, and not at all to election irregularities.

A bit of current historical matter is not amiss, thus:

Early in October, 1912, a proceeding by mandamus was begun in this court by Punch and Wilson to compel the board of election commissioners of St. Louis to print their names upon the official ballot as candidates of the Progressive party for certain offices. On a return made to our alternative writ to show cause, that case was argued and submitted, and on October 16, 1912, we awarded a permanent writ. Our conclusions, announced at first orally, were that the names of relators, Punch and Wilson, were entitled to go on the official ballot as the candidates of the Progressive party for the designated offices, for two reasons, namely: (a) Because of a nomination by petition of electors affiliating with that party (and designating "Progressive party" as their party name), a party newly born since the August primary; and (b) because of nominations by the newly formed de facto party committee of that party acting bona fide. On that oral pronouncement, it was adjudged that a permanent writ issue, as said, and on November 26, 1912, our opinion followed. State ex rel. v. Kortjohn et al., 246 Mo. 34, 150 S. W. 1060, q. v. The unanimous opinion of the six sitting members of this court, speaking through Brother Graves, strictly followed the terms of our prior pronouncement. The purpose of deciding that case before an opinion could be formulated and handed down was to perform a sensible judicial function in settling complications and vexed questions, then pending in various counties in the state and before state officers, from the fact that a new party had sprung up—a party that with vigor was stoutly asserting a right to put state and county tickets in the field for the ensuing general election.

(Note: A [deservedly] obscure rhymester, whose verses will be remembered when Virgil is forgotten—and not till then—in a homely touch or so, in the role of amicus curiæ maybe, outlined the appealing situation in that case to this court in this way:

                    "Are your honors of a mind now
                     That we all be left behind now
                     That we all can have no ticket
                     Have been caught in legal thicket
                     And are lost in legal brambles
                     While the train we want to get on
                     Rolls out straight for Armageddon?"
                

The curious may consult, with more or less profit, Rev. xvi, 16, and 2 Chron. xxxv, 22, on Armageddon and its related term, Megiddo, where a dim war once raged, used as a prototype in oratory in the year 1912.)

Our judgment had the effect, doubtless, to clarify a confused situation by construing our election laws on a disturbing point; up to that time res nova. On the strength of the ruling in the Punch-Kortjohn Case a Progressive party ticket was put out and voted in a very great majority, if not in all, of the counties in Missouri.

So much for facts of current history (all of which we saw and some of which we were).

Coming to the concrete case, in Butler county there was in apt time presented to the county clerk, and filed in his office, a petition of qualified electors, duly certified, bearing the names of the statutory percentage of voters, nominating a Progressive party county ticket for that county for the ensuing general election, and so designating its nominees and party name. On the ticket proposed in that petition Mr. Kearbey's name appeared as nominee for the office of sheriff. No objection was made below, or is made here, to its form, sufficiency, or certification. When our decision in the Kortjohn Case was announced, the county clerk, as we understand this record, published that list of named candidates as and for the Progressive ticket for Butler county, and the same was presently printed under the auspices of the county court as the official ballot for the Progressive party in connection with nominations by the same party certified to the county clerk by the Secretary of State for state and judicial officers. No objections or exceptions were filed with the county clerk, and no ante-election steps were taken in any court or before any judge to correct the caption of the ticket, or its body, in any respect or in any wise to challenge the acts or method of the county clerk in that behalf. The tickets so printed and published, bearing the names of candidates so nominated, were sent out in due official channels, and 408 of them were voted at that election by electors of that party and duly canvassed. It seems Mr. Kearbey had also been nominated at the prior August primary as the Republican candidate for the office of sheriff; his name accordingly appeared on the official Republican ballot as such candidate. His dual attitude toward these nominations was that of a man smelling at two roses at one and the same whiff. His attitude was not that of the party in the Beggar's Opera, to wit, "How happy could I be with either, were t'other dear charmer away." At the same primary, Mr. Nance was nominated as the Democratic candidate for sheriff, and his name appeared on the official Democratic ticket. It also appears there was a Progressive party committee in Butler county, formed, we presume, in the old-fashioned way, said in the Punch-Kortjohn Case to be permissible at the birth of a new party. It kept minutes of its proceedings, now destroyed by fire. There was evidence tending to show that such committee adopted or suggested the plan of circulating that petition among its electors to nominate, as candidates for county officers, the several gentlemen named therein for the respective offices, and the nominating petition was fathered and sprang into existence that way. It was signed by all the members of the committee who could be readily reached (but not officially), together with a sufficient number of other electors, and was duly and in apt time filed with the county clerk as said. We lay no stress on the mentioned supervision by the committee.

Contestant contends, as we understand his counsel, that the nominating petition was well enough as far as it went, but that the grouping or heading of the ticket as printed by the county clerk was imperfect or irregular, in that it did not indicate the nominations were made by electors. In other words, that the Progressive party, as a party, could not nominate a ticket by electors and have it appear under that party caption, but must nominate at a primary, or by its party committee, or possibly by a convention of delegates, or else the ticket should show a nomination by electors. It may be we are in error in the assigned specifications of the views of contestant's counsel, but there can be no mistake about the ultimate contention, viz.,...