Sone v. Williams

• Decision Date: 19 November 1895
• Citation: 130 Mo. 530,32 S.W. 1016
• Parties: SONE v. WILLIAMS.
• Court: Missouri Supreme Court

32 S.W. 1016

130 Mo. 530

SONE v. WILLIAMS.

Supreme Court of Missouri.

November 19, 1895.

APPEAL — REVIEW — NOTICE OF ELECTION CONTEST — DEFECTS — SECOND RECOUNT — ALTERATION OF BALLOTS.

1. The refusal of the court to grant a jury trial in a contested election case will not be reviewed on appeal where no complaint thereof was made in the motion for a new trial or in arrest.

2. The omission to recite in a notice of an election contest that the contestee received the certificate of election will not invalidate such notice.

3. Though the court may, upon just cause, order a second recount in a contested election case, it was proper to refuse to do so on a motion, supported by affidavits, alleging merely that affiants were informed and believed that the ballots had been changed after the official count, and appellant, having had opportunity at the first recount to examine such ballots, failed to specify any substantive fact by which he expected to prove the charge that the ballots had been changed, and the other affidavits tended to show merely that there was opportunity to alter the ballots, but not that they had been altered, and particularly as the affidavits and evidence of respondent refuted every inference of injustice in the count, and rebutted the presumption that any one had tampered with the ballots.

4. A recount in a contested election case should not be rejected merely because the ballots were not placed in the vault in the county clerk's office, and there was possible opportunity to tamper with them; but, as between the canvass by the election officers and the ballots themselves, the ballots were the best evidence, provided they have been kept in the manner required by law, and have not been tampered with. Ex parte Arnold (Mo. Sup.) 30 S. W. 768, distinguished.

In banc. Appeal from circuit court, Cole county; A. M. Hough, Special Judge.

Proceeding by Samuel H. Sone against Charles F. Williams to contest an election. From the judgment as entered, the contestee appeals. Affirmed.

Moore & Williams, S. D. Chamberlain, and C. Waldecker, for appellant. Silver & Brown, for respondent.

GANTT, J.

This is an appeal from the judgment of the circuit court of Cole county, in a contested election for the office of sheriff of said county. At the general election held on November 6, 1894, Charles F. Williams and Samuel H. Sone were candidates for the office of sheriff. On the face of the returns as cast up and certified by the judges of election in the several precincts, Charles F. Williams, the contestee, received a majority of 13 votes. On November 14, 1894, contestant, Samuel Sone, served the contestee with a notice of contest, setting forth, in substance that the election judges in the various precincts refused to count ballots on which Sone was voted, for the alleged reason that said ballots were not properly prepared and marked according to the laws of this state, when in truth and fact said ballots were valid and legal ballots; second, that said judges had counted for contestee, Williams, ballots not legally and properly prepared; third, that the election judges had committed errors and made mistakes in counting the ballots, whereby the result was changed in favor of contestee, Williams. This notice was served in time to make the cause triable at the December term, 1894, of the Cole county circuit court. Thereupon contestee, Williams, served contestant with a counter notice of contest, making charges of errors and mistakes similar to those made by contestant, and, in addition, charged that contestant had received the ballots of a number of illegal voters, whose names were set out in the notice. No effort was made to sustain this last charge, and it is not before us for review. Within 20 days after the election, contestant filed a supplemental notice, which was quashed on motion of contestee. A motion was also lodged against the original notice of contest, which was overruled. At the December term, on the 6th day of December, 1894, the court made an order directing the county clerk to open, count, and compare the ballots in the presence of the parties and their attorneys. The contestant was represented by F. M. Brown and Dante Barton, members of the Cole county bar, and the contestee by Messrs. Waldecker and Chamberlain, of the Cole county bar, and Maj. Moore, of the Moniteau county bar. After due notice to all parties, the clerk, in the presence of both parties and the above-mentioned attorneys, made the recount, and subsequently filed the same in court as directed.

A correct tabulated statement of the official count and recount as contained in the clerk's return is as follows:

                ==========================================================================
                                                  | Official Count.   |    Recount
                                                  |-------------------|-------------------
                                                  | Sone.   |Williams.|  Sone. | Williams
                ----------------------------------|---------|---------|--------|----------
                Jefferson Twp.................... |         |         |        |
                    First ward................... |   277   |   192   |   273  |   198
                    Second ward.................. |   182   |   221   |   183  |   222
                    Third ward................... |   181   |   200   |   182  |   201
                    Fourth ward.................. |   215   |   219   |   214  |   219
                    Scott's...................... |    47   |    42   |    47  |    42
                    Scruggs'..................... |    40   |    66   |    46  |    64
                Elston........................... |   136   |    58   |   141  |    53
                Centretown....................... |    84   |    73   |    84  |    73
                Marion........................... |    33   |    24   |    36  |    24
                Russellville..................... |   158   |    90   |   162  |    88
                Lohman's......................... |    43   |   120   |    45  |   117
                Union Store...................... |    87   |   131   |    89  |   131
                Hickory Hill..................... |    74   |    32   |    74  |    32
                Teal............................. |    33   |    18   |    36  |    14
                St. Thomas....................... |    86   |    18   |    86  |    18
                Osage Bluff...................... |    32   |    84   |    36  |    80
                Wardsville....................... |    29   |    51   |    30  |    58
                Taos............................. |    72   |   105   |    79  |   102
                Osage City....................... |    43   |   119   |    45  |   115
                                                  |_________|_________|________|__________
                                                  | 1,852   | 1,865   | 1,888  | 1,853
                    Williams' majority on official count............................13
                    Sone's majority on recount......................................35
                

After the return of the clerk had been filed, and before the trial, on January 9th, the contestee filed the following motion for another recount: "And now comes Charles F. Williams, the above-named contestee, by his attorneys, and moves the court to order that a writ issue to the clerk of the county court of Cole county, Missouri, commanding him, the said clerk, to open, count, compare with the list of voters, and examine the ballots in his office which were cast for the office of sheriff of said county, at the general election held on the 6th of November, 1894, and to take down and preserve all facts which the contestee herein requires which may appear from the ballots affecting or relating to the office of sheriff of said county, and that he certify the result thereof to this court. Contestee makes this application and motion upon the following grounds and facts: Because the result of the recount of said ballots made by the clerk of the county court of Cole county, as shown by his report, is not a correct and true statement of the ballots as cast by the electors of said county, and as counted and returned by the officers of election in the various precincts of said county, for the respective parties herein, for said office. And contestee avers that he has good reasons to believe, and does believe, and so charged the facts to be, that since the ballots were cast by the electors of Cole county, on said 6th day of November, 1894, and after said ballots had been counted by the judges and clerks of election, and the poll books made out and signed, and after the returns were made by the election officers in the several precincts of said county, and prior to the recount of the ballots by the county clerk on the application of contestant, a large number of such ballots have been changed and altered by some party or parties to this contestee at present unknown, so that the result of the vote for the office of sheriff of said county has apparently been changed; and contestee avers that his name has been, since said election, erased on some of the ballots, and that the name of the contestor has been written in and substituted on some of said ballots in the place of contestee's name, which has been erased thereon. Contestee avers that, if a re-examination be had on his motion, he will be able to establish these allegations by competent evidence, and that he was duly-elected sheriff of said county at said election, by a larger majority than that shown by the official count. And contestee avers that in at least ten precincts of said county the contestee's name has been erased on a number of ballots, and that the contestant's name has been written in and substituted for the office of sheriff in place of this contestee and the candidate of the People's party for said office, which have been erased on a number of ballots in such precincts where the ballots have been tampered with since the returns were made by the officers, to wit, the judges and clerks of election; that, by reason of such erasures and changes made upon the ballots as cast and counted, the contestor has made an apparent gain of at least 65 votes in the county. And contestee avers that in no other way than by a re-examination of the...