Sanders v. Lacks

• Decision Date: 23 December 1897
• Parties: SANDERS v. LACKS.
• Court: Missouri Supreme Court

43 S.W. 653

142 Mo. 255

SANDERS v. LACKS.

Supreme Court of Missouri, Division No. 1.

December 23, 1897.

ELECTION CONTEST — APPEAL — JURISDICTION — PLEADING — WAIVER — JUDGES OF ELECTION — OATH — NUMBERS — ELECTION.

1. Under Const. 1875, art. 6, § 12, which provides that appeals shall lie to the supreme court "in cases involving the title to any office under this state," the supreme court has jurisdiction of a case in which the election of a county collector of revenue is contested.

2. Where plaintiff in a contested election case goes to trial without insisting on an answer or other traverse, or objecting to proceeding without it, he will, on appeal, be held to have waived it.

3. Under Rev. St. 1889, § 4665, which provides that the judges of election, before entering on their duties, "shall take the following oath," the vote will not be thrown out on account of the failure of a judge to take the oath.

4. In the absence of any evidence of any intentional or fraudulent deviation from the law, the returns from a precinct will not be thrown out merely because there were but four judges of election, instead of six, as is required by Rev. St. 1889, § 4777.

5. In the absence of both allegation and proof of any fraud or misconduct on the part of the judges of election in a precinct, the vote will not be thrown out because the judges are not equally apportioned to the two leading political parties.

6. The acceptance of judges of election, by the mutual consent of the voters present, without any formal election, is a sufficient compliance with Rev. St. 1889, § 4791, which provides that, in case of the failure of the judges of election to open the polls at the time fixed by law, the voters present, to the number of 10 or more, may proceed to elect judges to act as such polls.

Appeal from circuit court, Butler county; John G. Wear, Judge.

Contest of election brought by Alexander Sanders against John N. Lacks. Judgment for contestee, and the contestant appeals. Affirmed.

A. D. Hight, J. T. Davison, and Geo. D. Tinch, for appellant. W. N. Barron and E. R. Lentz, for respondent.

BARCLAY, P. J.

This is a contested election case, brought to the supreme court by appeal of the plaintiff, or contestant, after a decision on the circuit in favor of the defendant, who holds the certificate of election to the office in dispute, which is that of collector of the revenue for Butler county. The proceeding began with a notice of contest, the grounds of which need not be specially stated at this point. In due time the contestee demurred to the notice. His demurrer was overruled. No answer was filed, but the parties went to a trial as upon a denial of the facts alleged. The court found for defendant, and the appeal followed in due course. The plaintiff furnishes in the brief of his counsel a summary of the evidence, from which we take the following passages, as fairly presenting the leading facts bearing on the points raised by the assignments of error: "The testimony shows that the election in question was the general election for national, state, and county officers, held November 3, 1896; that Alexander Sanders, the contestant, and John N. Lacks, the contestee, were, respectively, the Republican and Democratic candidates for the office of collector of the revenue within and for Butler county; that Fitzgerald was the name of a regularly constituted voting precinct in said Butler county. The evidence given by County Clerk Spence shows: That six judges were appointed by the county court to conduct the election in said Fitzgerald precinct. Three of these appointees were Democrats and three Republicans. That the Democratic and Republican parties cast the largest vote in said Fitzgerald precinct at the last general election preceding the election held November 3, 1896. The evidence of all the witnesses, both for contestant and contestee, who testified in relation thereto, was: That the election in said Fitzgerald precinct was conducted by four judges only, and that one of them, John Huskey, was not sworn. Three of these judges, Kerby, Ansil, and Huskey, were Democrats, and Nance alone a Republican. That but two of these four, Nance and Kerby, were of the judges appointed by the county court. That Huskey and Ansil were not appointed by the county court, nor elected by the voters present at the election precinct to the number of ten or more. That two judges, Huskey and Nance, acted as ticket or ballot judges, and also as receiving judges. That Kerby and Ansil, both Democrats, acted as counting judges. That several times during the day of the election there was but one judge to distribute and receive ballots, and but one to count votes. That the attention of the judges, clerks, and voters present was called to the fact that the law required six judges to constitute an election board. That, at the time of opening the polls, there were enough voters present from whom there might have been selected six judges. That no election was held by the voters present at Fitzgerald precinct (to the number of ten or more) of judges to act in place of those appointed by the county court, but who failed to appear in time to perform their duties. * * * Of the votes cast for collector of the revenue at Fitzgerald precinct on the 3d day of November, 1896, John N. Lacks, the contestee, received 80 votes, and Alexander Sanders, the contestant, received 45 votes. That, of the total vote of the county cast for collector of the revenue at said election, John N. Lacks, the contestee, received 1,631 votes, and Alexander Sanders, the contestant, received 1,619 votes. The evidence also shows that John N. Lacks, the contestee, received the certificate of election, took the oath of office, and was commissioned as collector of the revenue within and for Butler county." The statement in plaintiff's summary of the evidence touching the failure to elect the substituted judges must be taken rather as the conclusion of counsel than as the fact itself. Further on we shall refer to the testimony on that point, and indicate our view of its legal effect. The various grounds of plaintiff's objections to the election will be stated along with the discussion thereof.

1. The supreme court has jurisdiction of this cause, because it involves title to an "office under this state." Const. 1875, art. 6, § 12; State v. Rombauer (1890) 101 Mo. 499, 14 S. W. 726.

2. The fact that no answer was filed does not require the court to take as true the allegations of fact in contestant's notice of contest. If any answer or other traverse as to facts was necessary, in view of the broad language of section 4710, Rev. St. 1889, the course of the plaintiff in going to trial without insisting on such traverse (or raising some objection to proceeding without it) must, at this stage of the controversy, be held to...