State ex rel. Cole v. Matthews, 44548
| Decision Date | 13 December 1954 |
| Docket Number | No. 44548,44548 |
| Citation | 274 S.W.2d 286 |
| Parties | STATE of Missouri ex rel. John J. COLE, Chairman; Robert E. Fitzgeraid, Sr., Secretary; Sylvester G. Lipic and Carl V. Eimbeck, Members, All Constituting the Board of Election Commissioners of St. Louis County, Missouri, and Also as Voters and Taxpayers, St. Louis County, Missouri, Relators, v. Luman F. MATTHEWS, County Supervisor, St. Louis County, Missouri; Frank L. Martini, Chairman; Tom Dunne, James H. J. McNary, Eugene Buechler, James A. Singer, Harold D. Carey and L. Gordon Davis, Members, County Council, St. Louis County, Missouri; Harry Konetzky, Purchasing Agent, St. Louis County, Missouri, and Clarence Hackmann, Auditor for St. Louis County, Missouri, Respondents. |
| Court | Missouri Supreme Court |
Robert T. Hensley, David R. Hensley, Hensley & Hensley, St. Louis, for relators.
John J. McAtee, County Counselor of St. Louis County, Clayton, C. W. Detjen, Asst. County Counselor, St. Louis, for respondents.
Relators constitute the Board of Election Commissioners of the County of St. Louis and prosecute this action as such and also as voters and taxpayers of said county. Respondents are, respectively, the Supervisor, the members of the Council, the Purchasing Agent and the Auditor of said county. The petition seeks our writ of mandamus commanding respondents to award a contract to Shoup Voting Machine Corporation for the purchase of 400 voting machines of certain type and specifications for use in the conduct of elections in St. Louis County. Upon issuance of the alternative writ, respondents made return thereto, denying the right of relators to designate the type and number of machines to be purchased for use in said county, and asserting that the right to select and purchase voting machines was vested in them as the governing body of the county.
The petition was filed on July 15, 1954, at which time it was in good faith plausibly insisted by relators that an early decision of the issue was of great urgency and public importance in order to effect the procurement of such machines for use in the November, 1954, election. We, therefore, waived our Rule 1.23 Supreme Court Rules, 42 V.A.M.S., and assumed jurisdiction. But, due to the time required in making up the issues and in docketing the cause for argument on October 8, 1954, it became impossible to finally determine the matter in time to enable the acquisition of machines by either of the parties for use in said election. However, inasmuch as the cause has now been briefed, orally argued and submitted in this court, we will dispose of it on the merits. See Art. V, Sec. 3, Constitution of Missouri, V.A.M.S.; State ex rel. Board, etc., St. Louis Public Schools v. Tracy, 94 Mo. 217, 6 S.W. 709.
In 1953, Laws 1953, p. 720, Secs. 121.010 to 121.270 RSMo. 1949, Cum.Supp., V.A.M.S., the Legislature enacted a voting machine law, authorizing adoption of voting machines for use in any or all precincts in which registration is required. Concededly, it is applicable to St. Louis County. In an effort to obtain the benefits of its provisions, the following steps were taken:
On February 9, 1954, pursuant to a special election held under the provisions of Sec. 121.020, the qualified voters of St. Louis County, by a vote of more than two-thirds majority, approved the acquisition and use of voting machines and authorized the issuance of the county's bonds in the amount of $650,000 for the purchase thereof. Thereafter, relators made an extended survey and study of voting machines suitable for use in the county and, on May 8, 1954, by unanimous written report, recommended the purchase and use of machines designated as '50 row, combination electricalmanual operated machines of the vertical ballot type arrangement', certifying in said report, among other things, that such machines afforded: (1) better arrangement of the ballot and greater legibility, (2) front tabulating counters, (3) greater security features, and (4) safeguards to prevent lost votes.
On May 21, 1954, in the manner prescribed by Sec. 50.660 of the County Budget Law and its charter and ordinances, St. Louis County advertised for bids on machines of the aforesaid type and for bids on several other types of machines. On May 28, 1954, two bids were received, one from Shoup Voting Machine Corporation and one from Automatic Voting Machine Corporation. Shoup offered 400 of its machines for a price of $645,536. Automatic offered 400 of its machines for a price of $618,800.
On June 21, 1954, relators in a letter to, respondent supervisor, requested that the Shoup offer be accepted for the purchase of 'four-hundred (400) ten (10) column, fifty (50) row combination electrically and manually operated Voting machines with Front reading counters at a total price of Six-hundred forty-five thousand, five hundred and thirty six dollars ($645,536.00)', and enclosed a requisition covering such purchase. The letter also stated:
'The Board wishes to point out that while this bid is higher than that of the Automatic Voting Machine Corporation by Twenty-fix thousand, seven hundred and thirty-six dollars ($26,736.00) and that seventeen (17) more machines of the Automatic Corporation could be purchased with the same amount of money, nevertheless, the Shoup Machine is more desirable and has certain advantages to the voters and to the efficient administration of elections in St. Louis County which far outweigh the difference in cost. The advantages of the Shoup machine with the vertical type ballot arrangement were fully set forth in the Board's Report, recently forwarded to you, members of the St. Louis County Council, members of the St. Louis County Citizens Public Works, Financial Advisory Committee and other interested citizens and groups. Briefly, the Election Board is of the unanimous opinion that the Shoup machine has a more legible and more easily understood ballot arrangement which would make the task of instructing the voters easier and less costly and would reduce confusion on the part of the voters on election day. The Board is convinced that the front counters on the face of the Shoup machine under each candidate's name are alone worth the difference in cost between the two (2) machines. The front counter arrangement would do more to eliminate the serious problem of tabulation errors than would the rear counter machine. Furthermore, the Board is convinced that the security features of the Shoup machine are superior to the Automatic machine and also justify the additional cost. * * *
Respondents refused to honor the requisition and respondent auditor refused to certify that there were unencumbered bond funds to permit payment of the purchase of the machines specified in the requisition. On the contrary, the county council, on July 7, 1954, adopted a resolution 'that the bid of the Automatic Voting Machine Corporation for 40 column manually operated voting machines be and it is hereby approved and accepted for the outright purchase of as many machines as may be acquired out of the available bond issue funds, and that additional machines to bring the total to 600 machines be rented with the option to purchase, in accordance with the terms of the bid of the Automatic Voting Machine Corporation, and that the County Supervisor be and he is hereby directed to enter into a contract in behalf of St. Louis County to be approved by the County Counselor, for such purchase, rental and option agreement, and that the bid of the Shoup Voting Machine Corporation be not approved.'
The issue here presented requires an examination of the pertinent statutes of Missouri. All citations, unless otherwise specified, refer to RSMo 1949, V.A.M.S.
Sections 113.050 to 113.110, as enacted in 1935 and amended in 1937, define the general powers and duties of the Board of Election Commissioners. Section 113.070 gives it full and complete powers to conduct any and all elections, except school and other similar local elections. Section 113.110 authorizes it to provide, subject to the provisions of Sec. 50.660, 'all necessary ballot boxes, registration books, verification lists, poll books, tally sheets, booths, printed ballots, blanks, stationery and all necessary supplies and equipment for the conduct and holding of registrations and elections, * * *.'
Section 50.660, upon which respondents place reliance, is a provision of the County Budget Laws. Insofar as here pertinent, it requires that all contracts and purchases made by the governing body of the county (in this instance the County Council) shall be let to the lowest and best bidder after due opportunity for competition, including advertising in a certain manner, and that all bids may be rejected and new bids advertised for.
We now turn to the Voting Machine Law:
Section 121.010 provides that any election authority (relators) may, subject to the provisions of Sec. 121.020, adopt voting machines.
Section 121.020 makes it a prerequisite to the adoption of such machines that the governing body of the county must provide, within the limitations imposed by law, for the payment of the purchase price or rental charge, or both, of such machines as may be proposed by the election authority, except that the qualified voters must first approve any proposed...
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