Ousley v. Powell
| Citation | 12 S.W.2d 102 |
| Decision Date | 21 December 1928 |
| Docket Number | No. 4482.,4482. |
| Parties | OUSLEY v. POWELL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.
Election contest by Mayme H. Ousley against Walbridge Powell. Judgment for contestee, and contestant appeals. Affirmed.
Watson & Allison and Lorts & Breuer, all of Rolla, for appellant.
W. D. Jones, of Rolla, for respondent.
This is an election contest for the office of mayor of the city of St. James, a city of the fourth class in Phelps county. The trial court held that the contestee was duly elected, and the contestant appealed.
We learn from the statement of counsel on both sides, though not shown in the printed abstract of the record, that at the regular city election in St. James in April, 1927, contestee, Powell, announced his candidacy for the office of mayor some time before the election and ballots were printed with the names of all candidates for all city offices thereon and distributed to the various voting precincts to be used by the voters. On these printed ballots, the name of the contestee appeared as the only candidate for mayor. Some time in the forenoon of election day, the contestant announced her candidacy for the office of mayor, and the voters were solicited to write her name in on the ballot. This was done by a large number of voters, and this contest rests on the fact that the name of contestant was written in on 15 ballots on which the name of contestee was not erased, which left these fifteen ballots with two names appearing thereon for the office of mayor. If these 15 votes are counted for contestant, she was elected; but, if not counted at all, she was defeated.
Counsel for appellant insists that these 15 ballots show clearly that it was the intention of these voters to vote for appellant, and contend that the general rule that, when the intention of the voter is clearly shown on the face of the ballot, it should be counted in accordance with that intention, should be applied in this case. The general rule asserted is universally recognized and, in the absence of a controlling statute, is applied in all cases. We are cited to two specific cases in which it has been held that, if two names appear on a ballot for the same office, one printed and the other written, the writing takes precedence over the printing and shows that it was the intention of the voter to vote for the person whose name was written in on the ballot, and the vote should be counted for that person. People v. Saxton, 22 N. Y. 309, 78 Am. Dec. 191; Brown v. McCollum, 76 Iowa, 479, 41 N. W. 197, 14 Am. St. Rep. 228.
These cases sustain appellant's position, but our statute and controlling decisions of our Supreme Court establish a different rule in this...
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