Sone v. Williams

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

32 S.W. 1016

130 Mo. 530

Sone v. Williams, Appellant

Supreme Court of Missouri

November 19, 1895

Appeal from Cole Circuit Court. -- A. M. Hough, Esq., Special Judge.

Affirmed.

Moore & Williams, S.D. Chamberlin, and C. Waldecker with W. M Williams for appellant.

(1) The motion to quash the notice of contestor should have been sustained. While the statute does not require any formal pleading the notice ought to be sufficient to give the court jurisdiction, and to show that the contestant is entitled to the relief sought. The notice supplies the place of both the petition and summons in an ordinary civil suit. State ex rel. v. Smith, 104 Mo. 667; Whitney v Blackman, 17 Ore. 564; Canton v. Ryan, 26 P 258; Virgil v. Brandt, 4 N. M. 374; Gumm v. Hubbard, 97 Mo. 312. (2) There could be no contest, unless the contestee had received the certificate of election; the statute contemplates this. R. S. 1889, secs. 4707, 4708. It is not alleged. There is no allegation that contestant was a candidate; yet the court permitted these facts to be shown in evidence. There is no allegation that the votes were even counted or canvassed. Paine, Elec. 824; McCrary, Elections, [2 Ed.], sec. 276; Howard v. Shields, 16 Ohio St. 186. (3) The motion of contestee for a reexamination, recount and inspection of the ballots on his application should have been sustained by the trial court. Gumm v. Hubbard, 97 Mo. 319. (4) "When fraud is alleged a recount should be ordered, as a matter of course, upon the request of the complaining party." Clanton v. Ryan, 24 P. 258; Pedigo v. Grimes, 11 West. Rep. 341. (5) An election contest is a case at law in this state; in some states courts of equity have jurisdiction. Gumm v. Hubbard, 97 Mo. 321; Const., art. 8, sec. 9. Appellant was entitled to a jury trial. The right seems to be taken for granted by this court in the case of Turner v. Drake, 71 Mo. 285; see p. 288. The section of the constitution quoted supra is perhaps somewhat obscure, but can it be said to contradict the broad provisions of sections 28, article 2 of the constitution? A trial by a jury would unquestionably be a common law right, if not abrogated by the sections first quoted. It is true that in many of the states the right to a jury trial is denied as in Pennsylvania, Indiana, Illinois, while in others the right is conceded. People v. Livingston, 25 Hun (N. Y.), 59; Duson v. Thompson, 32 La. Ann. 861; People v. Cilote, 16 Mich. 283; Seaton v. Swem, 58 Iowa 41. And formerly under the common law in Indiana. Reynolds v. State, 61 Ind. 393. See, also, Cooley, Const. Lim. [1 Ed.] p. 625, and citations. (6) The trial court erred in refusing to permit the ballots called for by contestee to be produced in court and offered in evidence to be followed by the testimony of nearly forty voters to prove that their ballots had been fraudulently changed in favor of contestant after they were cast and counted, at the election. R. S. sec. 4672. This section is broad in its provisions and is not limited by the section governing the recount by the county clerk. (7) The report of the county clerk on the result of the recount for the office of sheriff should not be deemed as conclusive. Even as prima facie evidence of such result, it is not sufficient to overcome the result of the official canvass, which gave the certificate of election to the contestee. The evidence admitted by the court without objections, furnishes more than a mere suspicion of forgery and fraud, by somebody after the official count was made. Some of that evidence may be said to be hearsay, but it is in the case, given without objections. (8) After the evidence was concluded the trial court should have sustained the renewal motions for a reopening, re-examination and inspection of the ballots; the evidence offered clearly demanded this course. (9) The trial court certainly erred in refusing the third declaration of law offered by the contestee. See State ex rel. v. Lesueur, 29 S.W. 278.

Silver & Brown, W. S. Pope, and Dante Barton for respondent.

(1) The trial court committed no error in overruling contestee's second motion for a second recount, and second reexamination of the ballots complained of in his brief. The statute does not authorize a second recount. R. S. 1889, secs. 4721-4727. (2) A recount being a special statutory proceeding, the statute relating thereto must be strictly construed. Smith v. Haworth, 53 Mo. 88; Sedgwick on Const. and Stat. Law [2 Ed.] pp. 277, 279. And the foregoing proposition is specially true in view of the restrictive provision of the constitution as to secrecy and the examination of ballots even in an election contest. Const. of Mo., art. 8, sec. 2. (3) Appellant having filed a motion for a second recount and the same having been overruled, it could not be successfully renewed. The first decision is in the nature of res judicata. Clagget v. Simes, 25 N.H. 402. See, also, State ex rel. v. Boothe, 68 Mo. 546. (4) And an order made upon motion is a bar to a subsequent motion for the same relief, although the subsequent motion be founded on grounds not raised on the first motion, if they might have been ascertained and presented had due diligence been used. Bank v. Hanser, 15 Abbott's New Cases, 488. The grounds, however, for the two motions in this case were the same. The reopening of a case for newly discovered evidence is a matter largely resting in the discretion of the trial court, and the trial court's action in that regard will not be reviewed, unless manifestly abused. Mayor, etc. v Burns, 114 Mo. 426, and cases cited. Evidence ought to be decisive and produce different result. (Ibid.) The foregoing is specially true as to a second motion for the same relief. (5) The second application for the second recount was righly overruled on the merits of the motion. Neither the application nor affidavits in support of same authorizes a review of the discretion of the trial court in denying the recount. First. The obvious object of the recount is to secure the number of the votes and the names of the voters of republican ballots on which contestee's name is erased and contestant's is inserted. Contestee had this opportunity all during their count, and it was his own fault that he did not avail himself of it. He does not show diligence. New trials will not be granted for newly discovered evidence, where the new facts are to be proved by a witness who has already testified. Cook v. Railway, 56 Mo. 380. Second. The counter affidavits filed by contestant in opposition to the motion for a recount were competent. They are permitted in analogous cases. State v. Sansone, 116 Mo. 14; State v. McCoy, 111 Mo. 517; State v. Baily, 94 Mo. 311; 2 Thompson on Trials, sec. 2760. (6) The trial court did not err in denying to contestee a trial by jury. First. A trial by jury does not extend to election contest cases. Williamson v. Lane, 52 Tex. 335; Pedigo v. Grimes, 113 Ind. 145. Second. The statute (R. S. 1889, sec. 4710) provides that "every court authorized to determine contested election cases shall hear and determine the same in a summary manner, without any formal pleadings." A trial by the court is clearly contemplated by the statute. Third. Even if this case were an ordinary civil case, yet, the issue not being for the recovery of money only, or for specific real or personal property, it is not triable by a jury. R. S. 1889, secs. 2131, 2132. Fourth. Again, contestee did not, in his motion for a new trial, assign the refusal of a jury trial as ground of error, and the matter is not now open to review in this court. Atkinson v. Dixon, 96 Mo. 582. (7) The trial court committed no error in refusing the declarations of law as asked by contestee. First. It is a primary rule of elections that the ballots constitute the best and primary evidence of the intentions and choice of the voters. People v. Holden, 28 Cal. 123; Hudson v. Solomon, 19 Kan. 177; State, etc., v. Judge, 13 Ala. 805. Second. Where the statute provides that the ballots shall be kept in a certain way, and they are in the hands of the proper officer, it is presumed that he has done his duty, and the burden of proof is upon those assailing them to show that they have been tampered with. People v. Holden, 28 Cal. 123. Third. That officers are presumed to perform their duties has been frequently decided in this state. Lenox v. Harrison, 88 Mo. 496; Leonard v. Sparks, 117 Mo. 103; State, etc., v. Bank, 120 Mo. 161. Fourth. And even where it is held, that the burden of proof to show that the ballots have not been tampered with is on the contestant or the party producing the ballots, yet he is not required to satisfy the trier of the facts beyond a mere possibility of interference, "but that they were intact to the satisfaction of the jury." People ex rel. v. Livingston, 79 N.Y. 279; Hudson v. Solomon, 19 Kan. 177. (8) The fact that the county clerk opened some of the ballot boxes to withdraw therefrom the tally sheets and poll books improperly placed therein by the election officers did not invalidate the ballots as primary evidence, even conceding (which we do not admit) that the action of the county clerk was illegal. Dorey v. Lynn, 31 Kan. 758. (9) The special finding of the trial court in this case that the ballots had not been changed or tampered with, and that the county clerk returned in his report all that either party required, is conclusive in respect to those matters on this appeal. Godman v. Simmons, 113 Mo. 122; Magee v. Burch, 108 Mo. 336; State v. Ihrig, 106 Mo. 268. (10) The appellant in his motion for a second recount does not complain of any refusal on the county clerk's part to permit a re-examination or recount before the same was finally closed. Appellant is necessarily restricted to the grounds of complaint set out in...