State Ex Inf. Prosecuting Attorney of Greene County v. Heffernan

• Decision Date: 31 May 1912
• Parties: THE STATE ex inf. THE PROSECUTING ATTORNEY OF GREENE COUNTY ex rel. A. D. THOMPSON v. F. S. HEFFERNAN, Appellant
• Court: Missouri Supreme Court

148 S.W. 90

243 Mo. 442

THE STATE ex inf. THE PROSECUTING ATTORNEY OF GREENE COUNTY ex rel. A. D. THOMPSON v. F. S. HEFFERNAN, Appellant

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Greene Circuit Court. -- Hon. J. T. Neville, Judge.

Reversed and remanded (with directions).

J. J Gideon and H. C. Young for appellant.

(1) Ballots at an election cannot, under the Constitution article 8, sections 3 and 9, be opened and inspected, except in cases of contested elections. (2) Quo warranto proceeding is not a contested election case within the meaning of the Constitution, and ballots cannot be inspected therein. (3) A quo warranto proceeding adjudges the right to the office to no one; it only determines whether the person exercising the right to the office is a usurper. State v. Francis, 88 Mo. 357; State ex rel. v. Board, 112 Mo. 213; State ex rel. v. Spencer, 164 Mo. 34. (4) "In quo warranto, parties cannot go behind the official returns unless the specific objections thereto be stated in the pleadings; there must be, e. g., a specification of the number and names of the voters alleged to be illegal; general averments in reference thereto are insufficient." State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Vail, 53 Mo. 97. An information in the nature of a writ of quo warranto is essentially a civil proceeding. Burden of proof is on the relator; every reasonable intendment is to be made in favor of the regularity of the proceedings by which appellant was put into office. State ex rel. v. Kupferle, 44 Mo. 154; Ins. Co. v. Holmes, 68 Mo. 601; State ex rel. v. Smith, 22 Minn. 218; State v. Vail, 53 Iowa 550; Ins. Co. v. Sortwell, 8 Allen, 217; Granger v. Mill Co., 59 Cal. 678. But where defendant fails to show in his answer or return that there was an office to fill, and that he was qualified to fill the office, the burden shifts on him to show that there was an office to fill and that he was qualified to fill the same. State ex rel. v. McCann, 88 Mo. 387; State ex rel. v. Meek, 129 Mo. 431; State ex rel. v. Rose, 84 Mo. 198. Requiring a vote by ballot means a secret ballot, and any inspection that destroys secrecy is prohibited. Ex parte Arnold, 128 Mo. 256; State ex rel. v. Spencer, 164 Mo. 25. Nor can the court order an inspection of the ballots and a comparison of same with voting lists to determine the voters who cast particular ballots. Montgomery v. Dormer, 181 Mo. 5; State ex rel. v. Oliver, 163 Mo. 679. Even primary elections shall be conducted and protected as other elections. State ex rel. v. Taylor, 220 Mo. 618; State v. Fleming, 158 Mo. 558.

G. A. Watson, J. J. Collins and J. C. West for respondent.

The respondent's first, second and third assignments of error is in the trial court placing the burden of proof upon the respondent. In State ex rel. v. McCann, 88 Mo. 386, in a quo warranto proceeding against one for usurping an office, the court makes use of these words: "The rule being that the burden is upon the respondent to show title to the office, the inquiry is, has the respondents shown any of these facts." The courts also adhere to and follow this ruling in the State ex rel. v. Giovanoni, 59 Mo.App. 41; Mullery v. McCann, 95 Mo. 579; State ex rel. v. Meek, 129 Mo. 436; State ex rel. v. Powles, 136 Mo. 380.

BROWN, C. Bond, C., concurs. Valliant, J., absent.

OPINION

BROWN, C.

This is an information in the nature of a quo warranto, filed in the circuit court for Greene county by the prosecuting attorney at the relation of an owner of land in James River Club House Road District of Greene county, a special road district incorporated under the act of the General Assembly approved April 14, 1905. [R. S. 1909, Secs. 10611 et seq.] It challenges the right of the defendant to exercise the office of commissioner of the district. The answer denies the usurpation charged, assumes the burden of justifying the exercise of the office, and sets forth with sufficient detail the election of the appellant by the landowners, at an election duly called by the commissioners, held on the first Tuesday after the first Monday in January, 1910. It also sufficiently states his qualification, and that he was a citizen of the United States and of this State, an owner of land in the district, and had been a resident of Greene county for more than forty years.

At the trial he identified the records of the corporation, and read therefrom the call for, and the record of, the election, showing the appointment of the tellers, the opening of the polls and the vote by ballot and the declaration that there were fourteen votes cast of which the appellant received eleven and one George B. McDaniel three and declaring that appellant had received a majority of the votes cast and was duly elected commissioner of said district. This record was signed by the president and secretary of the district. He also proved his qualifications for the office and the taking and filing of the oath, and rested his case. The court remarked, "As far as the evidence shows, Mr. Heffernan was duly elected." The relator contended that this was not sufficient, and that the true return of the election is the ballots and tally sheets, to which the court remarked they were not in evidence. Relator refused to offer further evidence. The court said it would like to see them, and relator consented to their introduction. The court thereupon sent to the office of the clerk of the county court, and a paper box, unlocked, unsealed and only tied with a piece of twine was brought and emptied on the table. It contained no signatures of the officers of election, or any electors of the district, or any other evidence of authority for writings or figures thereon shown. The respondent objected to the introduction of these papers on the grounds, among others, (1) that the law does not require any return of the election of commissioners to be made to the county clerk; (2) because the proxies, ballots, tally sheets and memoranda did not purport to have been used in the election; (3) that the tally sheets were not authenticated by any one. It was admitted, however, that these were tally sheets used and the ballots cast at the election and had been returned to the county clerk by the judges and clerks.

The court overruled the objection and proceeded to examine the papers without further evidence of any kind, to which the appellant excepted. What the judge found in the box is stated by him in findings of fact filed, in substance as follows: There were at least fourteen persons present at the election, qualified voters, and of these three voted for McDaniel and eleven for Heffernan. Twenty-five landowners in the district were represented by proxies, eighteen of which voted for McDaniel and seven for Heffernan. The acres of land represented by votes cast for Heffernan amounted to something like 1400 or 1500. It was impossible to tell the exact amount. The acres of land represented by votes for McDaniel amounted to something over 2500. It was impossible to say the exact amount. Upon this evidence the judgment of ouster was rendered. The points to which reference will be made in the opinion were properly saved and assigned as error.

I. The statute to which the road district is indebted for its existence is founded upon the theory that good roads constitute an improvement to the lands accessible to them and that to that extent the land so benefited should be charged with the cost of such improvement. The district is an organized body, not of citizens, nor even of property holders generally, but of landowners combined for the purpose of increasing the value of their own holdings, and willing to pay the cost, or such portion of the cost, as should be imposed upon them by common consent and the law by which they were created. That public quasi corporations constitute legitimate instruments for this class of improvement has never been seriously questioned, their public character being based upon the incidental benefits derived by the public from such improvements. Their government has been frequently entrusted, not to the whole body of the people of the districts included, but to the owners of the property immediately affected, upon the principle that as these were the persons peculiarly affected by the scheme, it is fair to permit them, under proper restrictions in the interest of the public, to control the funds which they themselves contribute for the purpose. In this case the corporation was formed by the landowners of a restricted territory, under the act mentioned in the foregoing statement, now article seven, chapter one hundred and two of the Revised Statutes of 1909, all other citizens than property owners being excluded from participation by the terms of the act. By this act the district is made a body corporate, possessing the usual powers of corporations for public purposes; and it is further provided (R. S. 1909, Sec. 10617), that "it shall be a political subdivision of the State for governmental purposes." From these provisions it is evident that the Legislature did not intend to leave the municipal character of its new creation in doubt. Its corporate powers are vested in a board of three commissioners (Id., sec. 10613). The validity of this corporation and, consequently, of the governing board in which its corporate powers are vested is expressly admitted by the information, and the only matter at issue in this proceeding is the election of the appellant as a member of that board. The law provides (Id., sec. 10613) that these commissioners shall be "landowners in said district." There are other provisions (sections 10612, 10616 and 10621) by which votes are given to the members of the corporation based upon acres of land owned, and voting allowed...