State ex rel. Rainwater v. Ross

• Decision Date: 08 January 1912
• Citation: 143 S.W. 510,161 Mo.App. 671
• Parties: STATE OF MISSOURI ex rel. JAMES D. RAINWATER, Appellant, v. J. C. ROSS et al., Respondents. [*]
• Court: Missouri Court of Appeals

143 S.W. 510

161 Mo.App. 671

STATE OF MISSOURI ex rel. JAMES D. RAINWATER, Appellant, v. J. C. ROSS et al., Respondents. ^[*]

Court of Appeals of Missouri, Springfield

January 8, 1912

Certified to Supreme Court, February 5, 1912.

Appeal from Jasper Circuit Court.--Hon. B. G. Thurman, Judge.

AFFIRMED.

Judgment affirmed.

A. L Thomas and McReynolds & Halliburton for appellant.

(1) These provisions of the statute are mandatory. Ballots without numbers were counted in the 5th ward, and the ballots in the 5th ward were not sealed up in a package, but were returned loose on a string in an unfastened box, and should not have been counted. West v. Ross, 53 Mo. 350; Ledbetter v. Hull, 62 Mo. 422; Donald v Lee, 101 Mo.App. 191; McKay v. Minor, 154 Mo. 608. (2) The law governing special elections must be strictly followed. And there must be reasonable notice of time and polling places and where the time and place is to be designated by some board, then notice of time and place must be given by such board. Haddox v. Clark County, 79 Va. 677; Morgan v. Gloucester, 44 N. J. L. 137; People v. Weller, 11 Cal. 49; George v. Township, 16 Kas. 88; Stephens v. People, 89 Ill. 337; Westbrook v. Rosebrough, 14 Cal. 180; Taylor v. Betts, 132 S.W. 162. (3) When fraudulent and corrupt methods in the holding of an election are shown to have been resorted to in any precinct the burden is then cast on those asserting the validity of the election to show that the election was not improperly affected by said means. Littlefield ex rel. v. Newell, 27 A. 156; State ex rel. v. Commissioners, 35 Kas. 640; State v. Marston, 6 Kas. 538; Russell v. State, 11 Kas. 322; State v. Stephens, 23 Kas. 456; Patten v. Coats, 41 Ark. 111; Thompson v. Ewing, 1 Brewster, 67; Wallace v. Simpson, 4 Brewster, 457; People v. Thacher, 55 N.Y. 525; Howard v. Cooper, Contested Elections in Congress, 1834, 1865, p. 275; Blair v. Barrett, Contested Elections in Congress, p. 308; Reed v. Julian, Contested Elections in Congress, p. 821; McCrary on Elections, sec. 436. (4) Appellant maintains that there is no valid statute in this state providing for the contest of a local option election. State v. Fulks, 207 Mo. 26; Williams v. Railroad, 233 Mo. 666; State v. Rollins, 231 Mo. 544; St. Louis v. Teifel, 42 Mo. 578; Johnson v. Spicer, 107 N.Y. 185; State v. Murray, 41 Minn. 123; Ryerson v. Utley, 16 Mich. 269; Shepherd v. Helmers, 23 Kas. 504; Spier v. Baker, 120 Cal. 370; 26 Am. and Eng. Ency. Law (2 Ed.), 584. (5) Defendant cannot for the first time in the appellate court object to the form of procedure. Nichols v. Stephens, 123 Mo. 86; Carr v. Nichols, 157 U.S. 370; Whitstone v. Shaw, 70 Mo. 575; Bank v. Bank, 69 U.S. 252, 17 Law Ed. 785; Russell v. Stocking, 6 Conn. 236; Railroad v. Bekemeier, 72 Ill. 267; Garland v. Wholeban, 20 Iowa 271; Emmons v. Lord, 18 Me. 351; Brown v. Waterman, 64 Mass. 117; Smith v. Elder, 3 John (N. Y.) 105; Rank v. Rank, 5 Pa. St. 211.

W. N. Andrews, Prosecuting-Attorney, H. F. Walden, Assistant Prosecuting-Attorney, and Shannon & Phelps for respondents.

(1) With reference to local option elections it is only required of the county court that it shall order an election in the usual voting precinct (Sec. 7238), and the notices of such elections have gone no farther. State ex rel. v. Bird, 108 Mo.App. 167; State ex rel. v. Baldwin, 109 Mo.App. 573; State ex rel. v. Bassett, 133 Mo.App. 366; Gaston v. Lampkin, 115 Mo. 25; O'Laughlin v. Kirkwood, 107 Mo.App. 302. (2) When proceedings under the local option statutes are drawn in question as for sufficiency, we are not disposed to invoke the application of the strict rule of construction by which are usually tested proceedings for the condemnation of private property. State ex rel. v. Weeks, 38 Mo.App. 573; State v. McCord, 124 Mo.App. 53; State v. McCord, 207 Mo. 523; State v. Swearengen, 128 Mo.App. 605; State v. Kellog, 133 Mo.App. 434; State v. Hitchcock, 124 Mo.App. 103. (3) The opinion of Judge GOODE in the case of O'Laughlin v. Kirkwood, 107 Mo.App. 302, is decisive of almost every question raised in this case, and it is in harmony with the authorities generally as to the effect of irregularities on the result of an election, a few of which we respectfully call to the attention of the court. State ex rel. v. Roberts, 153 Mo. 112; Horsefall v. School District, 143 Mo.App. 541; Wheat v. Smith, 50 Ark. 266; Bauer v. Board of Denmark, 122 N.W. 121; Seamore v. Tacoma, 33 P. 1059; Stearns v. State, 100 P. 909; Foster v. Scharff, 16 Ohio State, 532; Dishon v. Smith, 10 Ohio 212; Buchanan v. Graham, 81 S.W. 1237.

COX, J. Nixon, P. J., concurs in the result. Gray, J., not sitting.

OPINION

COX, J.

This case is the same as State ex rel. Fahrman, 160 Mo.App. 682, 143 S.W. 502, against same parties 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 endorsed. 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 'er 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 endorse 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 two on February 20, 1900, and on March 5, 1900, a motion for rehearing was overruled. On March 14, 1900, division one 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 endorsed 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. Quion 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 'er dry" on their booth within the 100 feet 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.

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...