State ex rel. Brines v. Franklin

• Decision Date: 22 April 1926
• Citation: 283 S.W. 712,220 Mo.App. 232
• Parties: STATE OF MISSOURI EX REL. CLARK BRINES ET AL., RELATORS, v. LEONARD FRANKLIN ET AL., JUDGES OF THE COUNTY COURT OF CAMDEN COUNTY, RESPONDENTS.
• Court: Missouri Court of Appeals

283 S.W. 712

220 Mo.App. 232

STATE OF MISSOURI EX REL. CLARK BRINES ET AL., RELATORS, v. LEONARD FRANKLIN ET AL., JUDGES OF THE COUNTY COURT OF CAMDEN COUNTY, RESPONDENTS.

Court of Appeals of Missouri, Springfield

April 22, 1926

Appeal from the Circuit Court of Camden County.--Hon. C. H. Skinker Judge.

AFFIRMED.

Judgment affirmed.

A. W Curry and Phil M. Donnelly for appellants.

Publishing the notice for three weeks consecutively, as required by section 4283, was not complied with by insertions on October 3, 10 and 17. Bean v. Barton Co., 33 Mo.App. 635; State v. Martin, 83 Mo.App. 55; Michel v Taylor, 143 Mo.App. 683, 127 S.W. 949; Williams v. Ettenson, 178 Mo.App. 178, 170 S.W. 370. Where no method is provided by which the action of the Board of Commissioners can be reviewed, certiorari is the proper remedy. 3 C. J., 176, 179; State ex rel. v. Wilson, 129 Mo.App. 242, 108 S.W. 128; C. B. & Q. R. R. v. Castle, 135 N.W. 561. On such review the court is not limited to a formal examination of the record and can consider extrinsic evidence to show that the law was disregarded by the board in that ballots not described by the record were improperly counted. 20 C. J., 270, 271; Densmore v. Manchester, 81 Mo.App. 533. Where the form of the ballot is prescribed, the election under the stock must be had by the use of such ballots. Union County v. Ussery, 35 N.E. 618. The statute prescribes the form of the ballot by designating which of two sentences must be on the ballot, but not both, with the direction or directions to scratch the one you do not wish to vote. Where both are printed on, with the direction to scratch the one you do not wish to vote, the ballot is uncertain and confusing. R. S. 1919, sec. 4284. A return of the ballot would show a different proposition voted on from the order and finding of the result. Relators' motion for a rule on the clerk to produce the ballots was reasonable and timely and should have been sustained.

Barney Reed, S. C. Roach and John S. Haymes for respondents.

(1) The notice of the stock-law election was published in a weekly newspaper in its issues of October 3, 10, and 17, the election being on November 4th. That was a compliance with the Statute, section 4283. Under section 1203, Revised Statutes 1919, a notice published by insertions in a weekly newspaper four successive weeks, the last insertion being the required length of time before the return term, is sufficient. Haywood v. Russell, 44 Mo. 252; Howard v. Brown, 197 Mo. 36; Brown v. Howard, 264 Mo. 501. (2) Can it be said that ballots cast at an election are a part of the record contemplated in certiorari? Election judges and clerks receive the ballots, count the votes and make return thereof to the county clerk, who takes to his assistance two judges of the county court or two justices of the peace, and they examine the returns and cast up the votes. R. S. 1919, secs. 4875 to 4882. The canvasser's duty is purely ministerial, and is not subject to review by certiorari. (3) Elections to restrain animals from running at large are under our Statutes, sections 4283 and 4284, by "the qualified voters," governed by the laws applicable to other elections, and are within the meaning of our Constitution in reference to elections. State ex rel. v. Board of Directors, 112 Mo. 213. And in cases like the present, there was no authority under section 3, article 8, of the Constitution of 1875 to open or inspect ballots cast at an election of the people. Such being permissible only in contested elections. State ex rel. v. Francis, 88 Mo. 557; Ex parte Arnold, 128 Mo. 256; State ex rel. v. Board of Directors, 112 Mo. 213; State ex rel. v. Spencer, 164 Mo. 23; State ex rel. v. Taylor, 220 Mo. 618. Although not referred to by relators, by an amendment adopted February 26, 1924, a change was made in section 3, Article 8 of the Constitution of 1875. Laws of Mo. 1925, p. 410. As amended that section declares, as the old Constitution, that, "All elections by the people shall be by ballot." It also has this proviso, the provision, except that relating to contested elections, being new matter: "That in cases of contested elections, grand-jury investigations and in the trial of all civil or criminal cases in which the violation of any law relating to elections, including nominating elections, is under investigation or at issue, such (election) officers may be required to testify and the ballots cast may be opened, examined, counted, compared with the list of voters and received as evidence." Even if it can be said, that the present is a "case in which the violation of any law relating to elections is at issue," does it not, in view of the whole section, require legislation to put it in force? In construing it, effect must be given to every word and part of a Constitution, if it can be done. Lamar Water and Light Co. v. City of Lamar, 128 Mo. 188; Riesterer v. Land & Lumber Co., 160 Mo. 150. And when words or terms used in a Constitution have acquired a well-defined meaning, they are presumed to have been used in their technical sense. Chouteau v. Leffingwell, 54 Mo. 471; Ex Parte Slater, 72 Mo. 106; State v. Kyle, 166 Mo. 303. At the time the above section of the Constitution was framed and adopted, the term "elections by ballot" had a well-recognized significance, and meant a secret ballot. In re-petition of Oppenstein, 289 Mo. 421. By declaring in the same section that "elections shall be by ballot," and that the ballots "may" be used as evidence as there designated, both the secrecy and integrity of elections are safeguarded. Certainly that would not be done by permitting ballots to be opened and used, unprotected by legislation, in a replevin suit under the stock law, and other cases where an issue as to their effect might arise. In addition to the preservation of the secrecy of the ballot, the employment of the term "may" be used, may further show that legislative aid is necessary. Hall v. Railroad, 80 Mo.App. 470; State ex rel. v. City of St. Louis, 158 Mo. 505; Cooley's Constitutional Limitations (7 Ed.), 259; Ex parte Smith, 135 Mo. 228; Williams v. Railroad, 223 Mo. 680. Hence, even if this is a case where the violation of the election laws is at issue and the ballots are parts of the election record to be brought up, there being no statute safeguarding the secrecy of the ballots, the amended Constitution could not, of itself, warrant their use as evidence. (4) But if the word "swine" was omitted from the ballots, as contended, the record ought not to be quashed: 1. The petition and order for, and the notice of, the election, included swine, showing that they were to be included in the vote, and since the word cattle, which was in the ballots, is a generic term, and includes swine (11 C. J. 33; Henderson v. Railroad, 81 Mo. 605; State v. Long, 80 Mo. 241; State v. Prewitt, 61 Mo.App. 156; R. S. 1919, sec. 4286), the election was not void. Especially is this true under our liberal rule of construing ballots. Gumm v. Hubbard, 97 Mo. 319. 2. At most no species of animals could be affected except swine. 3. It being quite apparent that the error, if any, was the result of a mistake, the rule announced in Bradley v. Cox, 271 Mo. 438, may well apply.

BAILEY, J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.--

Relators filed their petition for a writ of certiorari in the circuit court of Camden county against respondents, judges of the county court, in relation to proceedings for the adoption of the law restraining stock from running at large.

The abstract of the record does not set out the petition. Appellants' statement, however, indicates the petition contained sufficient allegations for the issuance of the writ, which was issued on the 23rd day of March, 1925. This writ recites, that from relators petition it appears respondents have proceeded irregularly in a certain matter of record pending in their court in relation to the extending of the provisions of section 4283, Revised Statutes 1919, over the county of Camden, to restrain horses, mules, asses, cattle, sheep, goats and swine from running at large; that from the record it appears that "without a proper petition, notice, ballots, canvass and count your record purports to show that the provisions of said section have been extended over the entire county of Camden." Then follows an order on relators to send before the court on the 25th day of March, 1925, their complete record in relation to the submission of the question of restraining animals from running at large in Camden county, "together with a copy of the ballot used and furnished the election officials of Camden county in this behalf, together with all the ballots and returns, etc."

Respondents' return to the writ contained a general denial and a certified copy of the record of the proceedings in relation to the adoption of the stock law. The return also contains an averment that "Relators further say that the ballots used in said election are under the seal and in the possession of the county clerk, as required by law, and for that reason are not herewith produced. That said ballots are no part of the record of proceedings in said election, except as appears in the record as it now exists."

Judgment was for respondents; relators, after filing unsuccessful motions for new trial and in arrest of judgment, have appealed to this court.

It is first assigned as error that the notice of election was insufficient. Section 4283, Revised Statutes 1919, in relation to submitting the question of restraining animals provides among other things that the county court "shall cause notice to be given that such vote will be taken, by publishing notice of the same in a newspaper published in such county, for three weeks consecutively, the...