State ex rel. Goldman v. Hiller

• Decision Date: 04 January 1926
• Docket Number: No. 26897.,No. 26887.,26887.,26897.
• Citation: 278 S.W. 708
• Parties: STATE ex rel. GOLDMAN v. HILLER.
• Court: Missouri Supreme Court

278 S.W. 708

STATE ex rel. GOLDMAN v. HILLER.

No. 26887.

No. 26897.

Supreme Court of Missouri, en Banc.

January 4, 1926)

Consolidated applications by State, on the relation of George L. Goldman, for writs of prohibition and mandamus against Frank B. Hiller and others, Election Commissioners of Kansas City. Rule in prohibition made absolute, and alternative writ of mandamus made permanent.

Ralph S. Latshaw, Edward J. Curtin, Ben Terte, and James P. Aylward, all of Kansas City, for relator.

Solon T. Gilmore, Herman M. Langworthy, Charles M. Blackmer, and Francis M. Hayward, all of Kansas City, for respondents.

PER CURIAM.

The first numbered case is one in prohibition against the board of election commissioners of Kansas City, Mo., or, to be more particular, against two members of such board, who asserted the right to open the ballot boxes in 55 precincts of the city, containing the ballots cast at a general city election held on November 3, 1925. This right they claimed, because there was tendered to said board 55 affidavits, all of the following tenor;

"State of Missouri, County of Jackson—ss.:

"___, of lawful age, being duly sworn, upon his oath says that he is a registered voter in Kansas City, Missouri; that misconduct and irregularities were committed in the ___; precinct, ___ ward, in Kansas City, Missouri, at the election held on November 3, 1925, in the following particulars: That ballots were counted for George L. Goldman which were cast for Lewis R. Jewell; that the tally sheet is incorrectly made, in that it does not correctly show all the votes cast for Lewis R. Jewell; that ballots were counted for George L. Goldman which were unnumbered; that ballots were counted for George L. Goldman which were not initialed by the judges of election; that the vote returned by the judges of election for Lewis R. Jewell does not agree with the judges' proclamation made on the night of election at completion of judges' count; that ballots cast for Lewis R. Jewell were not counted; that ballots were rejected by the judges of election which should have been counted for Lewis R. Jewell."

The foregoing is the general form of all, and the blanks properly filled. One man, however, signed as many as 12 of them. By their return, the two commissioners urge that such affidavits were sufficient evidence, "proving or tending to prove * * * fraud, misconduct, or irregularities, either in the count of said ballots or in the returns thereof" to order a recount of the ballots, under and by virtue of article 16, § 61, of the Laws of 1921, pp. 365 and 366. It will be seen, therefore, that the two commissioners must have evidence presented to them, "proving or tending to prove, in the opinion of any two or more commissioners, fraud, misconduct, or irregularities." The act, supra, does authorize the opening of the ballot boxes, and a recount of the ballots, and recasting of the results, and this in an open meeting of the board.

Relator was a candidate against L. R. Jewell for the office of councilman at large from the Third district of Kansas City. It is not controverted that, according to returns made by the judges and clerks of election, as said returns were corrected by the board, that relator had 304 more votes than Mr. Jewell; 32 of this majority was added by respondents themselves, by reason of discrepancies shown by the returns.

It suffices to say that, if article 16 of the Laws of 1921, is valid, respondents can open ballot boxes and recount ballots, after they have first found from the evidence presented that there has been "fraud, misconduct or irregularities, either in the count of said ballots or in the returns thereof." To our minds, both cases are of easy solution.

I. It is conceded that, if the proceeding rises to the dignity of an election contest, then the act is void, because all such contests must be heard and determined by a court, or some judge thereof. Article 8 section 8 of Amendment 9, to Constitution (Laws 1925, p. 411). Nor is it seriously contended that, if the preliminary hearing rises to the...