State ex rel. Beach v. Sutton

• Decision Date: 05 March 1877
• Citation: 3 Mo.App. 388
• Parties: STATE OF MISSOURI, ex rel. LEWIS B. BEACH, Circuit Attorney, Appellant, v. HENRY L. SUTTON et al., Respondents.
• Court: Missouri Court of Appeals

3 Mo.App. 388

STATE OF MISSOURI, ex rel. LEWIS B. BEACH, Circuit Attorney, Appellant, v. HENRY L. SUTTON et al., Respondents.

Court of Appeals of Missouri, St. Louis.

March 5, 1877

UPON THE DEMURRER.

1. Sections 20 and 21 of article 9 of the Constitution of Missouri of 1875 construed, and their effect declared.

2. In a proceeding by quo warranto, the object of which was by ascertaining whether the respondents were legally appointed judges of the County Court of the new county of St Louis, to ascertain whether the Scheme and Charter provided for by these sections were ratified by a majority of legal voters voting at the election of August 22, 1876, provided for in section 20, and were thus made the organic law of the county and city of St. Louis, held, that section 21 is evidentiary, and intended to mark, officially, the result of the election; that the certificate, when filed, was merely prima-facie evidence of the facts required by section 21 to be stated in it; and that the relator could go behind the certificate into the facts.

3. Where the information alleged that a majority of lawful votes cast at the Scheme and Charter election were cast against the Scheme and Charter, which were thereby defeated, and failed to become the organic law, held, on demurrer, that this averment was sufficient without allegations as to particular fraudulent or illegal voters or votes held, further, that the sections of the election law (Wag. Stat. 573, sec. 52 et seq. ) do not apply to this case; that the mayor and presiding justice of the County Court were the proper canvassing officers for the Scheme and Charter election.

4. Where the information averred that S. had no authority to act as presiding justice of the County Court in making the certificate, but where it also appeared from the information that the result of the Scheme and Charter election was universally accepted as a defeat of the Scheme and Charter and that, at an election held, under the general belief in such defeat and in the consequent continuance of the office of presiding justice, S. was so elected, and held the office and, while recognized as such officer, made the certificate, held, this gave color of title to his acts as a de-facto officer, and that he was the proper officer to make the certificate.

5. The failure to file the certificate within the sixty days named in section 20 was immaterial.

UPON THE MOTION TO STRIKE OUT.

On motion to strike out parts of the return or answer, held, the question for this court in this proceeding was, not whether the mayor and presiding justice acted properly in making and filing the certificate, but whether the Scheme and Charter was ratified by a majority of legal voters voting at the election; and that the certificate operated merely to shift the burden of proof.

UPON THE INFORMATION.

1. Where the Constitution requires that the mayor of the city and the presiding justice of the County Court shall certify the result of an election, their certificate is prima-facie evidence of the result. But the certificates of the judges of election are not sufficient to rebut it, unless supported by the ballots, or by other testimony of a higher grade than the constitutional certificate.

2. Objections to the competency of a witness must be offered before his examination in chief. Where the alleged ground of incompetency was known when the witness was called and sworn without objection on that account, a motion to exclude the testimony, after he has testified, will not be available.

3. A witness will always be competent, if no other objection exists, to prove frauds committed by himself.

4. The certificate given by the judges of an election is not conclusive, and may be disproved by various methods. No rule of public policy forbids the introduction of the judges themselves as witnesses to disprove their certificate.

5. An objection of public policy against the admission of a certain description of testimony does not question its truth or its materiality. It asserts, in effect, that the truth must be suppressed, if it is to come from a particular source. Such a claim should be founded on considerations which no adverse public policy can possibly transcend. In this instance, a paramount public policy lies in the verification of the popular will, as expressed through a popular election.

6. If the falsifying of ballots and returns at an election precinct be willfully perpetrated through fraud and corruption in the officers; or if, because of the irregularities, alterations, and falsifications appearing, it be found impossible to ascertain what was the true state of the polls, the entire vote of such precinct must be thrown out of the count. In other cases, where practicable, the true results may be ascertained from the condition of the ballots.

7. Tabular statement of results of the Scheme and Charter election held August 22, 1876.

QUO WARRANTO information.

Judgment for respondents.

James O. Broadhead, Chandler & Young, G. A. Finkelnburg, E. P. McCarty, H. M. Jones, D. D. Adams, and J. C. McGinnis, for relator.

Glover & Shepley, Wagner, Dyer & Emmons, Geo. A. Madill, Waldo P. Johnson, and Frank J. Bowman, for respondents.

On November 30, 1875, the Constitution of Missouri, which was adopted in Convention, August 2, 1875, went into effect. Sections 20 and 21 of article 9 of that Constitution are as follows:

" Sec. 20. The city of St. Louis may extend its limits so as to embrace the parks now without its boundaries, and other convenient and contiguous territory, and frame a charter for the government of the city thus enlarged, upon the following conditions, that is to say: The Council of the city and County Court of the county of St. Louis shall, at the request of the mayor of the city of St. Louis, meet in joint session and order an election, to be held as provided for general elections, by the qualified voters of the city and county, of a board of thirteen freeholders of such city or county, whose duty shall be to propose a scheme for the enlargement and definition of the boundaries of the city, the reorganization of the government of the county, the adjustment of the relations between the city, thus enlarged, and the residue of St. Louis County, and the government of the city, thus enlarged, by a charter in harmony with and subject to the Constitution and laws of Missouri, which shall, among other things, provide for a chief executive and two houses of legislation, one of which shall be elected by general ticket, which Scheme and Charter shall be signed in duplicate by said board, or a majority of them, and one of them returned to the mayor of the city and the other to the presiding justice of the County Court within ninety days after the election of such board. Within thirty days thereafter the City Council and County Court shall submit such Scheme to the qualified voters of the whole county, and such Charter to the qualified voters of the city so enlarged, at an election to be held not less than twenty nor more than thirty days after the order therefor; and if a majority of such qualified voters voting at such election shall ratify such Scheme and Charter, then such Scheme shall become the organic law of the county and city, and such Charter the organic law of the city; and, at the end of sixty days thereafter, shall take the place of and supersede the Charter of St. Louis and all amendments thereof, and all special laws relating to St. Louis County inconsistent with such Scheme.

" Sec. 21. A copy of such Scheme and Charter, with a certificate thereto appended, signed by the mayor and authenticated by the seal of the city, and also signed by the presiding justice of the County Court and authenticated by the seal of the county, setting forth the submission of such Scheme and Charter to the qualified voters of such county and city, and its ratification by them, shall be made in duplicate, one of which shall be deposited in the office of the secretary of state, and the other, after being recorded in the office of the recorder of deeds of St. Louis County, shall be deposited among the archives of the city, and thereafter all courts shall take judicial notice thereof."

Under the provisions of section 20 thirteen freeholders were duly elected, who proposed a Scheme and framed a Charter, which, on August 22, 1876, were submitted to the qualified voters of the whole county of St. Louis, to be voted upon by them. It was assumed by the authorities that this election was to be carried on under and according to the general laws of the State applicable to St. Louis County, relating to elections, and accordingly no special provisions were taken by the mayor of St. Louis, or by the presiding justice of the County Court, to ascertain the result of the election. The poll-books were returned to the clerk of the County Court, and, after ascertaining the result as shown by the returns of the officers of election, he made his certificate as follows:

" State of Missouri, county of St. Louis, ss.:

St. Louis, August 26, 1876.

I, Ferdinand L. Garesché , clerk of the County Court, certify the following to be a fair abstract of the vote cast at the election held on the 22d instant for the adoption or rejection of the new Charter and Scheme of Separation, as proposed by the Board of Thirteen Freeholders of St. Louis County, under section 20, article 9, New Constitution of the State of Missouri, to wit:

New Charter--Yes 11,858

New Charter--No 11,300

Separation Scheme--Yes 12,726

Separation Scheme--No 14,142

Rejected, blank, and scattering 65

Witness my hand and the seal of said court hereto attached at the office in St. Louis, this 26th day of August, 1876.

[L. S.] FERD.

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