State Ex Inf. Barrett v. Imhoff
| Decision Date | 09 February 1922 |
| Parties | THE STATE ex inf. JESSE W. BARRETT, Attorney General, v. ROBERT IMHOFF et al |
| Court | Missouri Supreme Court |
Writ denied.
Jesse W. Barrett for informant; A. M. Curtis and Robert Lamar of counsel.
(1) The order of the county court is wholly insufficient and does not find that the petition referred to therein was signed by any person, but simply states that it was found "to contain over one hundred names of voters of Wright County." Nor does it find that they were legal voters. (2) The county court is a court of statutory creation, of inferior jurisdiction, not proceeding according to the course of the common law, and all of the jurisdictional facts must appear on the face of the record, and in this matter it was acting under special statutory directions, which must be strictly observed before it could acquire jurisdiction of the subject-matter. (3) To the county court, and the county court alone, is given the power to say whether or not one hundred legal voters of the county have signed the petition asking to have submitted to the voters the question of township organization, and a judicial examination and determination by that body, and that body alone, entered of record (because a court can only speak by its record), is a jurisdictional prerequisite to a valid election on said question. State v. Metzger, 26 Mo. 65; In re Bledsoe Hill, 200 Mo. 644; Masey v. Carter, 76 Mo.App. 490; Chicago Ry. Co. v. Young, 96 Mo. 39; Bennett v Hall, 184 Mo. 416; State ex rel. Bell v. Bird, 108 Mo.App. 163; Fisher v. Davis, 27 Mo.App. 321; State ex inf. v. Colbert, 273 Mo. 208; State ex rel. v Page, 107 Mo.App. 213; Ruckert v. Ritcher, 127 Mo.App. 664; Backenstoe v. Wabash Railroad, 86 Mo 429; State ex rel. Jones v. County Court, 66 Mo.App 96; State ex rel. v. Wilson, 99 Mo. 675. The recitals at the top of the petition filed cannot supply the finding of the court. In matters of this nature, where a direct attack is made on the result, an order failing to show jurisdictional facts cannot be aided by recitals of the petition or some paper in the case. 23 Cyc. p. 848, par. 3; In re Bledsoe Hill, 200 Mo. 644; Town of Somonauk v. People, 53 N. E. (Ill.) 316; McKinney v. Commrs., 52 So. 756. (4) Sec. 4944, R. S. 1909, provides that "every other proposition to be submitted at the general election shall be proposed and submitted on the 'constitutional ballot' as herein provided, if any proposed constitutional amendments are submitted at such election or not." The same section also provides: "Ballots not printed or prepared as herein required shall not be counted on the proposition thereby submitted." The same section also provides for a separate ballot box for the deposit and reception of the constitutional ballots. The provisions of this section are mandatory, and regardless of whether fraud is shown or not, a ballot submitting township organization on the regular ticket containing the names of the candidates is absolutely illegal and void. (5) Attention is also called to Sec. 4859, R. S. 1919, which provides, among other things, that the official ballot furnished the voters for their use in voting for the candidates for office "shall contain only the names of the candidates nominated by said party." Also to Section 4860, which provides that in voting on a proposition or question that the words "Yes" and "No" shall be printed opposite thereto in bold legible type, with the words "scratch one of the above" printed in smaller type immediately below the words "Yes" and "No," and any such proposition or question shall not be printed in any other form, and the attention of the court is called to the ballot in this case, which did not contain the direction "scratch one of the above," but only the words "For Township Organization" and "Against Township Organization" at the bottom of the list of candidates on each of the tickets. The general rule is well settled that where the statute provides, as it does in this case, that votes shall not be counted unless complying with certain provisions, such provisions are mandatory and the courts have no power to override the expressed will of the people by legislative enactment, and that the election is absolutely void. 20 C. J. pp. 140, 141, sec. 161, 163; 10 Am. & Eng. Ency. Law (2 Ed.), p. 726f; Gomey v. Timon, 128 S.W. 657; Harvey v. Cook County, 221 Ill. 76; Hart v. Picon, 86 So. 481; West v. Ross, 53 Mo. 354; Ledbetter v. Hall, 62 Mo. 422; Langford v. Gebhardt, 130 Mo. 640; McKays v. Minor, 154 Mo. 612; Horsefall v. School District, 143 Mo.App. 541; Straughan v. Meyers, 268 Mo. 580; Cross v. Keathley, 105 S.W. 854; Catlett v. Knoxville, 112 S.W. 559; People ex rel. v. Olon, 187 N.Y.S. 298.
John T. Sturgis for respondents.
(1) The order of the county court submitting the question of township organization to the voters of Wright County, when read in connection with the petition of voters asking such question to be submitted, is not so defective as to render the election void and defeat the expressed will of the people. Section 13164 gives the voters of any county the right to vote on this question at any general election. Section 13165 makes it mandatory on the county court to submit this question on petition of one hundred legal voters of the county. It is conceded that a petition so signed was presented and the county court undertook to perform its mandatory duty. The whole record must be read together and when it appears from the whole record that the petition was signed by one hundred legal voters, that confers jurisdiction and is sufficient. Here the petition says that the signers are legal voters of Wright County. The order finds that such petition contained over one hundred names of voters of Wright County. This is sufficient. State v. McCord, 207 Mo. 525; State ex rel. Morrison v. Sims, 201 S.W. 910; State v. Schneider, 47 Mo.App. 669; State ex rel. Harrah v. Cauthorn, 40 Mo.App. 94; State ex rel. Reider v. Moniteau Co. Court, 45 Mo.App. 387; State ex rel. v. Staten, 268 Mo. 299; State ex rel. v. Duncan, 150 Mo.App. 410; State ex rel. v. Mayor of Neosho, 57 Mo.App. 198; Burkharth v. Stevens, 117 Mo.App. 425; State ex rel. v. Forest, 117 Mo.App. 252; State ex rel. v. Ross, 177 Mo. 230; State ex rel. v. Packett, 136 Mo.App. 704; State ex rel. v. Fort, 107 Mo. 334. (2) County courts are composed of plain honest men not learned in the law, and their records cannot be expected to show a strict and technical compliance with statutes. Such proceedings are to be liberally construed to uphold their validity. That the language used lacks the precision used by skilled attorneys should not be given much weight. State ex rel. v. Job, 205 Mo. 34; State ex rel. v. Jones, 266 Mo. 201; State ex inf. v. Clardy, 267 Mo. 384; State ex rel. v. Morrison, 201 S.W. 910. (3) The chief complaint seems to be that the order of the county court does not find that the petition for township organization was signed by more than one hundred legal voters of the county, but only that it was so signed by one hundred voters of such county. The statute uses the term legal voters, but there is no difference between a voter and a legal voter. A voter is one possessing the qualifications and having the right to vote, and that means a legal voter. So that the finding that the petition was signed by one hundred voters is equivalent to a finding that it was signed by one hundred legal voters. Rousey v. Wood, 63 Mo.App. 460; 20 Cyc. 59; Beardstown v. Virginia, 76 Ill. 42; State v. Blaisdell, 119 N.W. (N. D.) 360; Cusick's Appeal, 10 L. R. A. 231. The terms voters and electors mean the same thing and are used interchangeably in our statutes. Sections 4748, 4751, 4752, 4794, 4797, 4739, R. S. 1919. (4) The rule is that, unless the law expressly or by necessary implication says that a ballot shall not be counted unless a certain condition is complied with, then such requirement will be held directory only, and the expressed will of the voter will not be defeated by holding the ballot void. This is especially true where the ballots are prepared and furnished to the voters by public officials. 14 Cyc. 345; 10 Ency. Law (2 Ed.), 722; 20 C. J. 149; 9 R. C. L. 1061, sec. 77; Bowers v. Smith, 111 Mo. 86; Nance v. Kearby, 251 Mo. 374; Horsefall v. School Dist., 143 Mo.App. 541; State ex inf. v. Russell, 197 Mo. 646; State ex rel. v. Hackman, 273 Mo. 699; Sanders v. Lacks, 142 Mo. 263. No voter can prepare or print his own ballot, but must use that prepared and printed by the public officials, and cannot be defranchised for doing so. Bradley v. Cox, 271 Mo. 448; State ex inf. v. Roberts, 153 Mo. 125. (5) Sec. 4944, R. S. 1919, does not declare that a candidate ballot, on which a proposition, such as the adoption of township organization, is submitted, shall not be counted on that proposition or be otherwise void. This section deals with the constitutional ballot only and the preparation and printing of same, and declares that a constitutional ballot "not printed or prepared as herein required shall not be counted on the proposition thereby submitted." (6) The clause of Section 4944, declaring that "ballots not printed or prepared as herein required shall not be counted," etc., is confined in the matters preceding such clause, that is, to the preparation and printing of the ballots submitting the proposition (a) of calling a constitutional convention, (b) the adoption of a new constitution, and (c) the adoption of constitutional amendments. These matters are to be prepared by the Attorney-General, the form certified by the Secretary of State, and the county clerk is to print same as so certified. They are all to be voted on by "Yes" or "No." Not so with township organization. Sec. 13165, R. S. 1919. (7) The statute provides for...
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