State ex rel. Ewing v. Francis

• Decision Date: 31 October 1885
• Citation: State ex rel. Ewing v. Francis, 88 Mo. 557 (Mo. 1885)
• Parties: THE STATE ex rel. EWING, Appellant, v. FRANCIS.
• Court: Missouri Supreme Court

88 Mo. 557

THE STATE ex rel. EWING, Appellant,

v.FRANCIS.

Supreme Court of Missouri.

October Term, 1885.

Appeal from the Circuit Court of the City of St. Louis.--HON. SHEPARD BARCLAY, Judge.

AFFIRMED.

Dyer, Lee & Ellis, G. D. Reynolds and A. R. Taylor for appellant.

(1)The act of March 27, 1883, is not limited in its operation to election contests under 2 Revised Statutes, chapter 101, but includes election contests where the remedy is by information in the nature of quo warranto.Quo warranto has been recognized by the Supreme Court of Missouri during all the time our statute has contained a provision for statutory contests as the most effectual, complete and comprehensive remedy in all cases of contested elections, especially for the great offices of the state.State v. McBride,4 Mo. 303;State v. Merry,3 Mo. 278;St. Louis Co. v. Sparks,10 Mo. 118;State, etc., v. King,17 Mo. 511;State, etc., v. Ewing,17 Mo. 515;State, etc., v. Scott,17 Mo. 521;State, etc., v. Stone,25 Mo. 555;State, etc., v. Lingo,26 Mo. 496.Quo warranto is a civil remedy to try the title to an office.State, etc., v. Stewart,32 Mo. 379;State, etc., v. Lawrence,38 Mo. 535;State, etc., v. Howard Co. Court,41 Mo. 246;State, etc., v. Buskirk,43 Mo. 3;State, etc., v. Kupferle,44 Ind. 155.Quo warranto is the proper remedy to determine contested elections.State, etc., v. Ralls County Court,45 Mo. 58;State, etc., v. Boal,46 Mo. 528;State, etc., v. Vail,53 Mo. 97;State, etc., v. Claggett,73 Mo. 388;State, etc., v. John,81 Mo. 17.(2) Had the legislature intended to limit the application of the act of 1883 to the statute on the subject of election contests, the act would doubtless have been declared as amendatory of, or supplemental to, that statute--but there is no reference in the act of 1883 to the election statutes of the state.It stands independent and alone, and manifestly was intended to be as broad in its application as the constitutional mandate itself; it is unlimited, disconnected with other statutes of the state, and is clearly intended to fully declare a remedy applicable to all cases within the purview of the constitution.Humes v. R. R.,82 Mo. 227;Neenan v. Smith,50 Mo. 526;Connor v. R. R.,59 Mo. 293;State v. Kinney,44 Mo. 283;Frazier v. Gibson,7 Mo. 271;Smith v. R. R.,61 Mo. 17;Keferstein v. Senkton,52 Mo. 234;Spitler v. Young,63 Mo. 43;State ex rel. v. King,44 Mo. 283;Ind., etc., v. Blackman,63 Ill. 117;Smith v. People,47 N. Y. 330;State v. Blair,32 Ind. 313;Reynolds v. State,61 Ind. 393;State, etc., v. Stewart,26 Ohio St. 216.

James O. Broadhead, Leverett Bell and J. H. Overall for respondent.

(1)The act of March 27, 1883(Laws, 1883, p. 91), has no application to the present proceeding.That act is, by its terms and effect, limited to a case of contested election, and contains no authority to open the ballot boxes in any other proceeding.(2)The legislature had not the power to extend the provisions of said act beyond a case of contested election.Const., art. 8, sec. 3.(3)A case of contested election is one in which a judgment can be rendered in favor of the contestor and against the contestee for the possession of the office.No such judgment can be rendered in a proceeding by a quo warranto.State v. Vail,53 Mo. 111;State v. Townsley,56 Mo. 107;R. S., sec. 3790, p. 646.(4) The provisions of the constitution of 1875 and the law of 1883 relate to contests between respective claimants to the particular office in question, and must be held to exclude, as between such claimants, all other remedies.The mode prescribed by the constitution does not mean a proceeding by quo warranto, or under the statute of quo warranto.

HENRY, C. J.

This is a proceeding in the nature of a quo warranto, commenced in the circuit court of the city of St. Louis.The petition avers that on Tuesday, seventh of April, 1885, an election was duly held in the city of St. Louis, for certain offices in and for said city, including that of mayor.That at said election, the relator and respondent were candidates for said office, and that relator then had, and now has, all the qualifications for said office prescribed by law.That he received a larger number of legal votes than were cast for respondent, or any other candidate, and was duly elected.That illegal and void ballots were counted for respondent, and were canvassed and counted as having been voted for respondent.The petition asked judgment of ouster against respondent and that relator be put in possession of said office.

The respondent pleaded to the information, denying all the averments as to illegal ballots, and denying that relator received a greater number of votes than he.On a trial of said cause, proof was offered, showing that relator was qualified, as by law required, for the office, and asked for a writ directed to the recorder of voters for said city, to permit an inspection of the ballots in the ballot boxes, which was refused by the court, which then gave judgment against relator, and the cause is here on appeal.

The only question we have to determine is in relation to the action of the court in refusing the application for the writ to the recorder of voters.

The constitution, article 8, section 3, is as follows: “All elections by the people shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot.The election officers shall be sworn or affirmed not to disclose how any voter shall have voted, unless required to do so as witnesses in a judicial proceeding: Provided, that in all cases of contested elections, the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law.”

“Sec. 9.The trial and determination of contested elections of all public offices, whether state, judicial, municipal or local, except Governor and Lieutenant-Governor, shall be by the courts of law, or by one or more of the judges thereof.The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial, and all matters incident thereto; but no such law, assigning jurisdiction or regulating its exercise, shall apply to any contest arising out of any election held before said law shall take effect.”

That the ballots can only be counted and compared with the list of votes, in cases of contested elections,we think, beyond question.The constitution prohibits an election officer from disclosing how any voter voted, unless required to testify as a witness in a judicial proceeding, and makes admissible secondary evidence of a fact, which is preserved in documentary form; and provides, “that in all contested election cases” the ballots may be inspected, etc.; but, even then, only under such safeguards as the legislature may prescribe.Expressio unius est exclusio alterius.

The question then arises, what is meant by the phrase, “contested...