State ex rel. Rainwater v. Ross

• Decision Date: 08 January 1912
• Citation: 143 S.W. 510
• Parties: STATE ex rel. RAINWATER v. ROSS et al., Judges.
• Court: Missouri Court of Appeals

143 S.W. 510

STATE ex rel. RAINWATER v. ROSS et al., Judges.

Springfield Court of Appeals. Missouri.

January 8, 1912.

Motion to Transfer to Supreme Court Sustained and Transfer Ordered February 5, 1912.

1. INTOXICATING LIQUORS (§ 74)—LOCAL OPTION ELECTION—VALIDITY.

In a proceeding to compel the issuance of a dramshop license in a local option district, evidence held insufficient to show that the provisions of the law relative to the conduct of elections was so flagrantly violated that the election was not held in conformity to the law, and was void. Per Cox, J.

2. INTOXICATING LIQUORS (§ 37)—LOCAL OPTION ELECTION—CONTEST.

Under Rev. St. 1909, § 7242, providing that the result of a local election may be contested in the same manner as is provided by law, in the contest of the election of county officers the remedy by mandamus was superseded by such provision. Per Nixon, P. J.

Appeal from Circuit Court, Jasper County; B. G. Thurman, Special Judge.

Action by the State of Missouri, on the relation of James D. Rainwater, for mandamus against J. C. Ross and others, as Judges of the Jasper County Court, to compel them to issue a dramshop license to relator on the ground that a local option election was void. Writ of mandamus denied, and relator appeals. Affirmed.

A. L. Thomas and McReynolds & Halliburton, for appellant. W. N. Andrews, Pros. Atty., C. S. Walden, Asst. Pros. Atty., and Shannon & Phelps, for respondents.

COX, J.

This case is the same as State ex rel. Fahrman v. Same Parties, 143 S. W. 502, just decided by us, and involves the same questions with one additional question. On all questions decided in the Fahrman Case we adhere to the rulings there made. The additional point made in this case is that the provisions of the law relative to the conduct of elections were so flagrantly violated that the election was not held in conformity to the law, and should be held void for that reason.

This contention is based upon the following facts: That electioneering was done within 100 feet of the polls. That some ballots were counted on which the judges' initials were not indorsed. That in one ward one of the ballot boxes used had no lock, and the ballots returned to the city clerk were not returned in sealed envelopes, but were returned in this unlocked box. That certain ladies who were interested in securing a majority vote against the sale of intoxicating liquor established eating booths in less than 100 feet of the polling places, and had a large sign posted on the outside of the booth with the slogan, "Vote for Dry," printed thereon in large letters, and that all comers to the polls were invited in, and to those who entered coffee and other eatables were furnished and while eating the voters were importuned to vote dry. These lunches were furnished free to all who would accept them, regardless of how they intended to vote. The evidence disclosed that all of the above alleged irregularities were present in this election, but it failed to show that the result was in any way affected thereby.

The failure of the judges of the election in one ward to indorse their initials on some of the ballots did not vitiate those ballots. It will be observed that the present statute of this state which directs the names or initials of judges to be put upon the ballot before it is delivered to the voter does not prescribe what consequences shall follow a failure to observe this requirement. It has been held by our Supreme Court that such failure renders the ballot invalid, and in a contest case such ballot should not be counted. See McKay v. Minner, 154 Mo. 608, 55 S. W. 866. This case was decided in division 2 on February 20, 1900, and on March 5, 1900, a motion for rehearing was overruled. On March 14, 1900, division 1 decided the same question the other way, and held that the failure of the election judges to do their duty could not be charged up to the voter, and directed that the votes be counted, although no initials were indorsed thereon. Hehl v. Guion, 155 Mo. 76, 55 S. W. 1024. A decision by either one of the divisions of the Supreme Court is the law of the entire state until overruled, and it is our duty to follow the latest one. As the decision in the Hehl v. Guion Case is of equal authority to the other, and is nine days later in point of time, we must follow it. The fact that one ballot box in one ward had no lock, and that the ballots were returned to the city clerk in this box, certainly does not destroy the entire election of the city.

The irregularity which it is most strongly urged should result in the entire election being declared void is the charge of improper modes of electioneering by the ladies of the city by their display of a sign "Vote for Dry" on their booth within the 100-foot limit, and furnishing eatables to voters in the booths. We are asked to brand this conduct upon the part of the ladies as wholesale bribery, and by reason of it to hold the election void. We are not disposed to give it so vicious a designation. Whatever may be said as to its propriety, we are unwilling to brand it as bribery. These women were no doubt moved by honest motives, and, being familiar with the common frailties of the human family, were no doubt impressed with the logic of that philosophy which has promulgated the theory that the way to reach a man's heart is through his stomach, and, acting upon that principle, they sought to reach the center of the voter's affections by first appealing to his natural love of tempting viands. In doing this they were simply following the example set by the ordinary politician, who, without any thought of exposing himself to a charge of bribery, when a candidate for office, has treated a crowd to watermelons or cigars or drinks or has given a banquet to those whom he hopes to enlist as his supporters. We do not think the facts in this case would warrant us in placing the conduct of these women upon a level with the conduct of a man who bribes the individual voter, or who by offer to perform the duties of the office for less than the legal fees induces voters to vote for him, as was done in the Collier Case, 72 Mo. 13, 37 Am. Rep. 417.

Irregularities, fraud, or crime may avoid an election, but to do so they must be of such a character as to at least throw doubt on the question whether the result of the election as declared is in fact the correct result. Where the result of an election has been declared by the proper authority, that result must stand until proof is offered to overthrow it. It is not sufficient to show a state of facts from which it might be inferred that there was a possibility that the returns did not correctly express the will of the voters, but, before a party in whose favor the result is declared can be required to show that the matter complained of did not affect the result, the matters complained of, whether they be mere irregularities or actual fraud or crime, must be of such a character that by reason of them it is prima facie shown that the result as declared is incorrect, or that it is impossible to determine what the correct result is. In other words, that the election contemplated by the law was not in fact held. O'Laughlin v. Kirkwood, 107 Mo. App. 302, 81 S. W. 512; State ex rel. Atty. Gen. v. Collier, 72 Mo. 13, 37 Am. Rep. 417; Banks v. Sergent, 104 Ky. 843, 48 S. W. 149; Atty. Gen. ex rel. v. McQuade, 94 Mich. 439, 53 N. W. 944; State ex rel. Newell v. Purdy, 36 Wis. 213, 17 Am. Rep. 485; Littlefield, Atty. Gen., ex rel. Chandler v. Newell, 85 Me. 273, 27 Atl. 156; State ex rel. Bradford, Atty. Gen., v. Board of Com'rs, 35 Kan. 640, 11 Pac. 902; People ex rel. Judson v. Thacher, 55 N. Y. 525, 14 Am. Rep. 312. There was no evidence that anybody's vote was affected by the alleged irregularities or improper conduct, and there can be no question under this evidence that there was an entire failure to impeach the correctness of the returns as made. We do not think the fact that electioneering was done inside the 100-foot limit should render the election void. Such a rule would put it in the power of evil designed persons who were willing to violate the law in order to defeat an election to accomplish their purpose in defiance of the will of the voters, and would turn the control of all elections over to the criminal classes.

We find no irregularities connected with this election which is of so serious a nature as to vitiate the entire election, and the judgment will therefore be affirmed.

GRAY, J., not sitting.

NIXON, P. J. (concurring).

Having reached the same conclusion in my consideration of this case as my Associate, but from a different viewpoint, it seems proper to give the reasons for my conclusions in a separate opinion.

This is a proceeding by mandamus to contest the validity of a local option election held in the city of Carthage, Jasper county, Mo., on the 3d day of February, 1910. The relator, a citizen of Carthage, possessing all the statutory qualifications required to make him eligible as a dramshop keeper, on the 23d day of January, 1911, duly presented to the county court of Jasper county his petition and affidavit and application for a license to keep a dramshop in said city, and otherwise complied with all the legal requirements. These facts the county court found on examination to be true and so recited of record, but denied the petition of the applicant for a license on the sole ground that the provisions of the local option law were in force in said city of Carthage. The applicant then filed his petition in the circuit court of Jasper county setting up said facts, and asking the court to issue an alternative writ of mandamus commanding the judges of the county court to issue him a license or show cause. It appears from the records of the city council of the city of Carthage that the petition for the local option election was presented to the city council signed by the requisite number of legal voters of the city,...