Phelps v. Fenix

• Citation: 134 S.W.2d 84,345 Mo. 440
• Decision Date: 05 December 1939
• Docket Number: 36669
• Parties: Tom Phelps, Appellant-Contestant, v. Frank Harold Fenix, Respondent-Contestee
• Court: United States State Supreme Court of Missouri

134 S.W.2d 84

345 Mo. 440

Tom Phelps, Appellant-Contestant, v. Frank Harold Fenix, Respondent-Contestee

No. 36669

Supreme Court of Missouri

December 5, 1939

Rehearing Granted, Reported at 345 Mo. 440 at 448.

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

R A. Mooneyham, Geo. B. Lang and Jack Fleischaker for contestant.

(1) The trial court erred in limiting in its order to the county clerk to the examination of the ballots and poll lists and in refusing to include in said order a direction to the county clerk to compare the ballots, poll books, registration lists, ballot stubs and other documents and papers pertaining to said election as prayed for in plaintiff's petition and motion to modify. Section 10354, Revised Statutes 1929, is in words and figures as follows: Sec. 10354. Count Clerk to open, count and compare ballots, etc., when. -- Either house of the general assembly, or both houses in joint session, or any court before which any contested election may be pending, or the clerk of any such court in vacation, may issue a writ to the Clerk of the County Court of the County in which the contested election was held, commanding him to open, count, compare with the list of voters and examine the ballots in his office, which were cast at the election in contest and to certify the result of such count, comparison and examination, so far as the same relates to the office in contest, to the body or court from which the writ is issued." (2) The court erred in accepting that part of the report and certificate of the county clerk and admitting the same in evidence concerning the votes cast for Fenix in the 11th, 15th, 16th, 17th and 19th precincts in the city of Joplin over and against the objection of plaintiff's counsel all of which votes were challenged in plaintiff's petition on the ground that the same did not have the registration numbers placed on the back thereof as required by law. Section 5, Article VIII of the Constitution of Missouri is as follows: "Sec. 5. REGISTRATION IN CERTAIN CITIES AND COUNTIES. -- The General Assembly shall provide by law for the registration of voters in Counties having population of more than one hundred thousand and in cities having a population of more than ten thousand, but not otherwise. The first General Assembly held after the adoption of this Constitution shall pass laws necessary to enforce this provision, and for such purpose may classify such counties and cities according to population, but such laws shall be uniform as to each class." Sec. 10315, R. S. 1929; Timmonds v. Kennish, 244 Mo. 318, 149 S.W. 652; Donnell v. Lee, 101, Mo.App. 191; Phillips v. Barton, 300 Mo. 76; Gant v. Brown, 238 Mo. 571. (3) "Election contests are special statutory proceedings in which the Courts of first instance exercise a limited jurisdiction and proceed according to a prescribed and inclusive proceedure." State ex rel. Hancock v. Spencer, 166 Mo. 286; State ex rel. v. Slover, 134 Mo. 15; State ex rel. v. Hough, 193 Mo. 643; Bradbury v. Wightman, 232 Mo. 394; State ex rel. v. Robinson, 270 Mo. 212; Pemiscot County v. McCarty, 276 Mo. 538.

Paul E. Bradley, Nelson B. Evans and McReynolds & Flanigan for contestee.

(1) The endorsement of the voters' registration numbers on the ballots in Joplin was expressly prohibited by law. Sec. 10300, R. S. 1929, as amended Laws 1933, p. 225. (2) The clause in Section 10315, Revised Statutes 1929, forbidding the counting of ballots having no registration numbers endorsed thereon was impliedly repealed by Section 10300, Revised Statutes 1929. The two sections on the point in question are diametrically opposed. The first requires the endorsement of the registration number on the ballot and forbids the counting of any ballot not so numbered; the second expressly prohibits the endorsement of any matter on the ballots except the voting number and the initials of the judges. Section 10300 is the later act, constituting a full code on the subject of voting in precincts where registration is required, while Section 10315 is the earlier statute, not a complete code, and touching only one phase of the subject. This irreconcilable conflict necessarily results in implied repeal of Section 10315. State ex rel. Mo. Pac. Ry. Co. v. Pub. Serv. Comm., 204 S.W. 395, 275 Mo. 60; State v. Stell, 14 S.W.2d 515; State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d 124. (3) The fact that the title of Section 10300 makes no mention of the repeal of a portion of Section 10315 is immaterial. Repeals by implication are not dependent upon the presence in titles or acts under them of express mention of the matter so repealed. Repeal by implication is a result of repugnancy between an earlier and a later act, and if the later act is passed under a title which, independently considered, is sufficient when tested by Constitution, Article IV, Paragraph 28, it repeals every other act or part of act which is so repugnant to it that the two cannot stand together. State ex rel. Matacie v. Buckner, 254 S.W. 127, 300 Mo. 359; Schott v. Continental Auto Ins. Underwriters, 31 S.W.2d 7, 326 Mo. 92. (4) Contestant's amended petition and notice, filed more than twenty days after the official count, undertaking to set up a new and distinct ground of contest, should have been stricken as to that ground. Sec. 10339, R. S. 1929; Nash v. Craig, 134 Mo. 347; 20 C. J. 234, sec. 310. (5) The fact that contestee gave no notice of counter contest does not prevent him from asserting that contestant was not in fact elected and from asserting that contestant can no more have the benefit of invalid and void ballots than may contestee. 20 C. J. 238, sec. 319; Sec. 10343, R. S. 1929; Govan v. Jackson, 32 Ark. 561.

OPINION

Ellison, J.

The appellant Phelps was the Democratic nominee for county collector of Jasper County in 1938, and was defeated by the respondent Republican nominee Fenix in the general election, according to the official returns cast up on November 12, 1938. The vote was 12,551 for Fenix to 12,110 for Phelps, a difference of 441. Phelps instituted an election contest in the circuit court, where, upon a recount by the county clerk under Section 10356, Revised Statutes 1929 (Mo. Stat. Ann., p. 3772), the vote was certified as 12,783 for Fenix to 12,117 for Phelps thus increasing respondent's majority to 666, and judgment was entered accordingly.

The first of appellant's two main assignments of error on this appeal arises out of this fact. Appellant prayed in his petition that the ballots cast in 30 specified precincts be reopened and that he and the respondent and their attorneys be permitted fully to examine the same and make a comparison thereof with the poll list and registration list. The court order directed the county clerk to open, count, examine and compare the ballots with the poll list in the presence of said parties, but did not include the registration list. It continued with a cautionary charge that since there was no contention any person who voted was not qualified to vote or that any markings were added to or changed on said ballots, it would be unnecessary "to determine how any individual voter cast his vote either for the office of collector or any other office."

Appellant objected at the time and contends here that the order was prejudicially defective because it failed to direct the county clerk to compare the ballots not only with the poll books, but also with the registration books, ballot stubs and other papers and documents, in accordance with Section 10354, Revised Statutes 1929 (Mo. Stat. Ann., p. 3770), as construed by Gantt v. Brown, 238 Mo. 560, 142 S.W. 422. The respondent answers that the court order was broad enough in view of the allegations of appellant's petition; and that an examination of the registration lists, ballot stubs and any other papers and documents outside of the poll books was unnecessary for reasons to be stated later in discussing appellant's second assignment.

In the case of Gantt v. Brown, supra, 238 Mo. l. c. 566-568, 581, 142 S.W.2d l. c. 424(2), 429, cited by appellants, the ballots of certain voters were challenged on the ground that they were aliens; also it was claimed the ballots of certain voters who testified they voted for Judge James B. Gantt, had been changed by scratching out his name. The immediate legal point presented was whether a subpoena duces tecum should be issued by the special commissioner to whom the case had been referred, so that the poll books might be brought in and the ballots of the voters in question identified, thereby disclosing how they voted, so far as shown on the face of such ballots.

The case held that where actual or legal fraud is charged, such disclosures may be made even though there has been no preliminary, prima facie showing of fraud by evidence independent of the poll books and ballots themselves. The principal opinion was by Graves, J. There were two concurring opinions, one by Lamm, J., and the other by Woodson, J. All these received the carrying vote of four judges, Kennish and Brown, JJ., not sitting and Valliant, C. J., dissenting. The concurring opinion of Lamm, J., summed up the holding of the court as follows: "We put the investigation of fraud in an election case precisely on the footing of any other investigation of fraud, so far as we can. Our ruling does not mean that the secrecy of the ballot should be exposed, except insofar as it may be absolutely necessary, under the allegation of the pleadings in an election contest, to show fraud, if any. . . ." Judge Woodson's concurring opinion further held the foregoing rules apply also to the registration books and all other papers and documents required by law to be made and preserved. It is this latter holding which is...