Skelton v. Ulen

• Decision Date: 09 March 1909
• Citation: 217 Mo. 383,117 S.W. 32
• Parties: SKELTON et al. v. ULEN.
• Court: Missouri Supreme Court

117 S.W. 32

217 Mo. 383

SKELTON et al. v. ULEN.

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

1. ELECTIONS (§ 227)—IRREGULARITIES — EFFECT.

Irregularities in an election, not shown to have been fraudulent nor to have increased a successful candidate's vote, nor to have been instigated by him or committed in his interest, afford no ground for contest.

2. ELECTIONS (§ 229)—ILLEGAL VOTES — EFFECT.

Though votes by nonresidents of the precinct were illegal and fraudulent, they do not affect the election of a candidate, where the votes were not shown to have been cast for him, and where, if they should be rejected, he would still have a majority.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Election contest by R. A. Skelton and another against Samuel Ulen. From a judgment for contestee, contestants appeal. Affirmed.

N. A. Mozley and Wammack & Welborn, for appellants. Geo. W. Munger and Wilson Cramer, for respondent.

BURGESS, J.

This is an action, begun in the circuit court of Stoddard county, to contest the election of Samuel Ulen to the office of collector of the revenue of said county at the general election held on November 8, 1904. At said general election the contestants, R. A. Skelton and F. A. Brannock, were the nominees respectively of the Socialist and Democratic parties, and the contestee, Samuel Ulen, the nominee of the Republican party, for said office. According to the returns from said county, Brannock received 2,115 votes, Skelton, 133 votes, and Ulen, 2,271 votes. Upon these returns, the certificate of election was issued to Ulen, who qualified and assumed charge of the office. In due time after the election, Skelton and Brannock jointly instituted this proceeding, and at the September term, 1905, of said court the matter was heard, and judgment rendered in favor of the contestee, from which judgment, after an ineffectual motion for a new trial, the contestants appealed.

The election of Ulen is contested on the ground of alleged irregularities at Dexter precinct, in Liberty township, said county, where 252 votes were cast and counted for Brannock, 36 for Skelton, and 446 for Ulen, a total of 734; and the effort is made to have the entire vote of this precinct rejected, in which event Brannock would be entitled to the office as being the recipient of the largest number of legal votes cast in said county for said office.

The grounds of contest as set up by the contestants are, in substance, as follows:

(1) That the election judges at Dexter precinct willfully and fraudulently admitted persons other than the judges and clerks of election into the room where the ballots were being counted, at the time the count was in progress, in violation of section 6996, Rev. St. 1899 (Ann. St. 1906, p. 3411), which provides: "No person or persons shall be admitted into the room or office where such ballots are being counted except the judges and clerks of election; provided, that any political party may select a representative man who may be admitted as a witness of such counting."

(2) That the election judges fraudulently refused to allow C. D. Bailey, who had been selected by the Socialist party to witness the count of the ballots, to remain in the polling place to watch the counting of the ballots, and that said Bailey was. "with the knowledge and consent of the election judges," forcibly ejected from the room, in violation of the proviso contained in said section 6996.

(3) That said judges fraudulently suffered voters, whom they knew were not entitled to vote at Dexter precinct, to vote at that place.

(4) That the judges of election "fraudulently failed and refused to furnish the electors who presented themselves to vote for said office of collector of the revenue of said county, and for other offices to be filled at said election, with ballots as provided and required by section 7104 of said Revised Statutes (Ann. St. 1906, p. 3437)," and furnished said electors with one ballot only, instead of one ballot for each political party voted for at said election, unless express demand was made by the elector for said ballots.

(5) That no screens were provided for the booths at said polling place, nor guard rails to prevent persons having no authority from coming nearer than five feet of the ballot boxes and booths, and that "divers persons, having no right or authority whatsoever, were in and about the ballot boxes and the booths or compartments, and within less than five feet thereof, while the electors were preparing their ballots, and while the ballots were being exposed for counting by said judges."

(6) That the election judges, in violation of the statute, "electioneered with the electors who came into said voting place to cast their ballots."

(7) That said judges absented themselves from the polls of said precinct, so that at times less than a majority thereof was present.

(8) That the ballots were not taken out of the ballot boxes one at a time to be counted, as provided by section 6996, Rev. St. 1899, but were "by said counting judges taken from said ballot boxes in bulk, and by them sorted out and arranged in piles or lots of ten cast for each political party voted for, and in such piles or lots pretendingly counted ten at a time, and thus entered upon the poll books."

The evidence shows that the polling place was in a large room, 80 feet long and 25 feet wide, and which had been used for the same purpose at previous elections. The table of the distributing judges was in front, near the door; the table of the receiving judges near the center of the room, and that of the counting judges at the further end, some 20 feet back of the voting booths, which were arranged on both sides of the room, near the center. The voters were admitted at the front door, and, after voting, retired from the room by the same door. There were seven or eight booths, some of which were without screens, and there was no guard rail provided, as required by section 7103, Rev. St. 1899.

The only person in the polling place other than the judges and clerks of election, and the voters who came in, voted, and retired from the room, was Noah Fields, constable, who kept the door at the solicitation of the judges. He was not at the counting table till after the polls were closed and the ballots nearly all counted, and he learned nothing about the ballot then. There was no evidence whatever that any of the judges of election electioneered with the voters, or attempted to influence any voter in any way; nor was there any evidence that any person, other than the judges and clerks of election, overheard the count or obtained any information as to the state of the vote until the same was formally announced; nor was it shown that there was less than a majority of the judges present at the polling...