Shields v. McGregor

• Decision Date: 16 May 1887
• Citation: 4 S.W. 266,91 Mo. 534
• Parties: Shields, Appellant, v. McGregor
• Court: Missouri Supreme Court

4 S.W. 266

91 Mo. 534

Shields, Appellant, v. McGregor

Supreme Court of Missouri

May 16, 1887

Appeal from Vernon Circuit Court. -- Hon. C. G. Burton, Judge.

Affirmed.

George Hubbert for appellant.

(1) A cause cannot be tried and adjudicated upon its merits until the evidence is taken upon the whole case. Lewis v Schwenn, 2 S.W. 392. (2) A false statement in the caption of a ballot, as to the political character of a candidate named thereunder for an office, vitiates the ballot, and it should not be counted. R. S., sec. 5493. (3) In arriving at a conclusion, as to whether a ballot is designed to mislead any voter, the surrounding circumstances and the customs of political parties and voters, opinions of competent persons, and actual results may be considered. Abbot's Tr. Evid., 751; Roger's Exp. Tes. (4) A ballot so headed as to impress the eye of an ordinary voter upon casual inspection or examination, that it is of a certain political character, cannot have printed under it the name of a particular candidate of different politics. Such ballot is fraudulent, although a careful scrutiny or careful reading might disclose the true character of the particular candidate. (5) A judge before whom a cause is pending should afford a petitioner lawful and "certain remedy" for every injury, and administer justice, "without sale denial, or delay," and employ all incidental power to that end. (6) The proper course upon the evidence adduced in this case is to remand it with instructions to the judge below to ascertain the number of the fraudulent ballots objected to in Newton and McDonald counties, and if sufficient to change the result, enter judgment for contestant. (7) If we leave out of view the prominence of the top lines of the tickets complained of, and read the caption as experts, in view of the usage in McDonald and Newton counties, still they are confusing and misleading, and false as to the political character of the names thereunder upon the evidence in the case. According to such usage there was but one division of the tickets to be voted; that was into state and county offices. The candidates who were intended to serve in, or for, a single county, were designated as the "county ticket." Those who were intended to represent or serve for a large area of territory were designated, generally, as the "state ticket." According to this classification, circuit judge was invariably classed as a state officer, and very properly, for the election returns go to the secretary of state; the final canvass of the returns is by state officers; his commission issues from the governor, etc. Then take the ticket beginning, "Greenback-Labor" or "Democratic," and construe it in the most favorable light for the contestee, and what does it assert of the candidates for state officers? Why, that they are "Democratic" or "Greenback-Labor" candidates. Contestee set up in his answer that he professed to run only as an "Independent," and he so testified before the commissioner. His acts show he was a Republican, in fact, and was supported as such by his party. Have it as we may, he cannot be regarded as either Democrat or Greenback-Labor. Then when those tickets assert of him that he, a candidate for the state office, was "Greenback-Labor," or "Democratic," candidate, they assert a falsehood, are calculated to deceive, designed to mislead, and "must go." But, it is said, the word, "Independent," saves them. What impression would that next most prominent word make on the voter's mind? That is the first question; and that question is not without an answer here, from intelligent witnesses who may be pronounced experts. The only answer is, that every voter would, at the first view of the word, independent, apply it and limit it to the Independent "county ticket." Judge McCrary in his work upon Elections ("S" 387), quoting from Reed v. Kneass, 2 Pars. 584, says: "The true policy, to maintain and perpetuate the vote by ballot, is found in jealously guarding its purity, in placing no finely-drawn metaphysical obstructions in the way of testing election returns (we would say ballots) charged as false and fraudulent, and in assuring to the people by a jealous, vigilant, and determined investigation of election frauds, that there is a saving spirit in the public tribunals charged with such investigations, ready to do them justice if their suffrages have been tampered with by fraud. The use of such ballots in the interest of any person striving to get into office through repression of the facts touching his true political character and affiliations, and his contributions to campaign funds, can be justified only upon the principle upon which Vattel justifies "falsil oquium."

E. O. Brown, J. W. Jenkins and Harding & Buller for respondent.

(1) This proceeding was improperly commenced before the judge. The statute does not confer jurisdiction upon the judge to hear this case except in vacation of court. The circuit court of Vernon county was in session when the petition was presented, and on every day thereafter, when any proceedings were had in the cause. Facts conferring jurisdiction must affirmatively appear. R. S., secs. 5550, 5551, 5554, 5555. And want of jurisdiction can be taken advantage of at any time. Henderson v. Henderson, 55 Mo. 499; Graves v. McHugh, 58 Mo. 499; Boone v. Shackleford, 66 Mo. 493; Dodson v. Scroggs, 47 Mo. 285. (2) This court will not go to the transcript to ascertain the character of the ballots contained in it, where not even the substance of such ballots are furnished in the abstract of the record. This is no compliance with rule fifteen of this court. Haussman v. Hope, 20 Mo.App. 193; Coy v Robinson, 20 Mo.App. 462; Hyatt v. Wolfe, 22 Mo.App. 191. (3) Presumptions are all in favor of validity of ballots. Cattell v. Lowry, 45 Iowa 78; Jones v. Caldwell, 21 Kas. 186. (4) The form and style of ballot prescribed by section 5493, of Revised Statutes, is not intended to prevent the free exercise of the right of suffrage, and many of the provisions of that section are held directory. Const. Mo., art. 2, sec. 9; R. S., sec. 5493; Kirt v. Rhoads, 46 Cal. 398; Hodge v. Lane, 100 Ill. 397. (5) None of the ballots complained of in points one, two, and three, of appellant's petition, are fraudulent. The captions and headlines truthfully express the "political character" of the ballots, and are "not designed to mislead the voters as to any name or names thereunder," and the ballots are "plainly printed." Turner v. Drake, 71 Mo. 285; Roller v. Truesdale, 26 Ohio St. 586; Applegate v. Eagan, 74 Mo. 263. (6) "Political character" does not mean that the ballot must be the ticket regularly put forward by one or the other political parties; but means public character, and that the caption shall indicate the measures of general public policy favored by the candidates. Webster's Unabridged; Roller v. Truesdale, supra. (7) Tickets composed of candidates of different political parties may be printed and voted, or they may be composed partly of "independent" candidates. Turner v. Drake, supra; Roller v. Truesdale, supra. (8) There is no new charge set up in the fourth point of appellant's petition. The contestant must state facts which he will prove in support of the charge, and this point can only be held to refer to the three points before relied on as a general allegation of what has been charged before in the other points. R. S., secs. 5550, 3511; Smith v. Sims, 77 Mo. 269; Waldhier v. Railroad, 71 Mo. 515. (9) Point four, as a distinct cause of contest, does not state facts sufficient to constitute a cause of action, and pleads a conclusion of law. Smith v. Sims, supra; Waldhier v. Railroad, supra; Buffington v. Railroad, 64 Mo. 246; Bliss on Code Pleadings, secs. 210, 211; Curran v. Downs, 3 Mo.App. 470. (10) Alleging that "errors and mistakes" were made by judges and clerks in counting ballots, without specifying the "errors," would at least be held to refer to errors in counting three hundred fraudulent ballots, as alleged in first point as cast for respondent, sixty-seven as alleged in second point, and three hundred as alleged in third point, leaving only seven "errors and mistakes" not mentioned in those points. Waldhier v. Railroad, 71 Mo. 515. (11) The replication cannot set up a new and independent ground of contest, as a "supplemental petition," and no such pleading is known to our code; besides, the thirty-eight votes therein alleged would not change the result. R. S., sec. 3524; Baker v. Long, 17 Kas. 341. (12) After the admissions of the parties, the issues were fully covered by the order to the commissioner. The testimony excluded by the commissioner and the judge, in regard to the customs of voters and printers in McDonald and Newton counties, and form of ballots in former years -- and that ballots were used to deceive -- was properly excluded. Design must appear from the form and language of the caption, considered as to whether "plainly printed" and whether candidates' names are those indicated in the caption. R. S., sec. 5493; Roller v. Truesdale, 26 Ohio St. 586. This is not a case for the opinion of witnesses. Opinions of experts alone are admissible. Gavish v. Railroad, 49 Mo. 276; Wagner v. Jacoby, 26 Mo. 531; Knoll v. State, 55 Wis. 249; Newmark v. Insurance Co., 20 Mo. 165. (13) The only issue of fact remaining to be determined from the evidence, after the admission of the parties, was, was the respondent an independent candidate? The trial court found that he was. The evidence shows that, while an independent, he was endorsed by the republican judicial committee. Yet, in McDonald county, he was endorsed by the independent convention, as an independent candidate. On that state of facts, the judge held ballots were not fraudulent and...