State v. Roberts

• Decision Date: 19 December 1899
• Citation: 153 Mo. 112,54 S.W. 520
• Parties: STATE ex rel. CROW, Atty. Gen., v. ROBERTS.
• Court: Missouri Supreme Court

54 S.W. 520

153 Mo. 112

STATE ex rel. CROW, Atty. Gen., v. ROBERTS.

Supreme Court of Missouri.

December 19, 1899.

ELECTION — VALIDITY — CIRCUMSTANCES SHOWING FRAUD — SUFFICIENCY.

That county officials were Republicans; that the clerk of the county court consulted Republican counsel in regard to his duties in preparing the official ballots for a general election, and had the tickets printed at the office of a Republican printer; that the managers of the campaign for that party took advantage of a change in one of the Populist tickets, substituting thereon candidates of the Democratic party, to publish, and circulate in quarters where they thought it would do the most good, a circular charging that the Democrats were thereby scheming to force Populists to vote their ticket, and to deprive them of their party existence under the ballot law; that the clerk, on the advice of the secretary of state, and acting in good faith, made mistakes in not placing fusion candidates for county officers on more than one of the spaces allotted to separate tickets of a party which had split on state officers but had fused on county officers, and had so published the ballots, rendering it possible that it changed the result as to a single county officer, but not depriving voters of the right to vote as they chose; and that the tickets, supplied by him in good faith, though approximately, were not exactly of the same width, and the difference would not be noticed by ordinary observers, — is insufficient to show fraud affecting the validity of the election.

In banc. Quo warranto by the state, on the information of E. C. Crow, attorney general, relator, against W. H. Roberts. Writ dismissed.

Edward C. Crow, Atty. Gen., Edwards & Edwards, and Rechow & Pufahl, for relator. Upton & Skinker and R. L. Goode, for respondent.

BRACE, P. J.

This is a proceeding by quo warranto instituted in this court by the attorney general to oust the respondent from the office of clerk of the county court of Polk county. The respondent, in his return to the writ, claims the office by virtue of his commission and qualification in pursuance of his election to the office at the general election held in Polk county on the 8th day of November, 1898. The attorney general, in his reply, denies the validity of the election, claiming that the same was fraudulent and void for nonconformity to the requirements of the election law, and by reason of the conduct of certain parties at and before the election. Issue was joined on the reply, and the case was sent to a commissioner to take the evidence, make a finding on the same, and report said finding, with the testimony, to this court. The case is now before us for determination on the exceptions of the attorney general to the report of the commissioner finding the issues "in favor of the respondent," and declaring, "as a matter of law, under the pleadings and evidence in this case, the finding and judgment should be in favor of the respondent."

The failure of the commissioner to make a special finding on the evidence now devolves that duty upon us; and, after a careful review of all the evidence returned, we find the facts to be as follows:

That prior to the general election of 1898 county conventions were held in Polk county by the Republican, Democratic, and People's Parties of said county for the nomination of county officers. That at the Republican convention the respondent was duly nominated for the office of clerk of the county court, and became the candidate of that party for that office. That at each of the conventions of the Democtratic and People's Parties one James R. Lightfoot was duly nominated for the same office, and became the candidate of both of these parties for that office, and that at each of said last-mentioned conventions the same persons were nominated for all the other county offices. That these nominations were all duly certified to the clerk of the county court. That in due time said clerk received from the secretary of state certificates of the nominations for state officers made by the several political parties, among which was one dated October 26, 1898, certifying that John M. Voris, Ambrose H. Livingston, John D. Brown, and James H. Hillis were nominated as candidates of the People's Party by electors in the order named, respectively: For the offices of judge of the supreme court, long term; judge of the supreme court, short term; superintendent of public schools; and railroad and warehouse commissioners, — among which was another, of the same date, certifying that the same persons were nominated as candidates for the same offices, respectively, at a regular delegate convention of the People's Party held at the city of St. Louis July 7, 1898, and among which was another certifying that John M. McCall, Simeon Handy, and John R. Smith were respectively nominated, in the order named, as candidates for the offices of judge of the supreme court, long term; judge of the supreme court, short term; and railroad and warehouse commissioner, — at a regular delegate convention of the People's Party held in the city of St. Louis July 7, 1898; Joseph D. Elliff declining the nomination for superintendent of public schools, in proper form. That on the 27th day of October, 1898, the clerk of the county court caused to be published in two newspapers published in Polk county "the nominations to office certified to him by the secretary of state, and also those filed in this office," in the form of a blanket ballot, consisting of eight tickets, in separate columns, each with its appropriate heading, and the names of the candidates underneath. That on four of those tickets (the Prohibition, the Social Democratic, the Social Labor, and the People's Party), as nominated by electors, the names of the candidates for the county offices in Polk county did not appear, and to a place on which they had no claim. That the other four tickets or columns were headed, respectively, "Republican Ticket," "Democratic Ticket," "People's Party Ticket," "People's Party Ticket." Under the first heading were grouped, in proper order, beginning with the name of Gustavus A. Finkelenburg for judge of the supreme court, long term, the names of the nominees of the Republican party for state and county offices. Under the second, beginning with William C. Marshall for judge of the supreme court, long term, were grouped the names of the nominees of the Democratic party for state offices, and the names of the persons certified to the clerk as having been nominated by that party, and the People's Party of Polk county for county offices. Under the third, beginning with the name of John M. McCall for judge of the supreme court, long term, and under the fourth, beginning with the name of John M. Voris for judge of the supreme court, long term, and after the names of the nominees for state offices on each, were also grouped for county offices the names of the same persons that were on the Democratic ticket, and certified to the clerk as having been also nominated by the People's Party of Polk county. That in this publication the name of the respondent appeared on the Republican ticket as the candidate of that party for the office of clerk of the county court, and the name of his opponent, James R. Lightfoot, appeared on the Democratic ticket and on the two People's Party tickets as the candidate of those parties for that office, and this was the case with all the other candidates for county offices. That between the 27th of October and the 3d of November, 1898, the county clerk received from the secretary of state another certificate, to the effect that in compliance with the provisions of section 4766, Rev. St. 1889, William C. Marshall, Leroy B. Valliant, William T. Carrington, and William C. McCully were on the 24th of October, 1898, respectively, in the order named, nominated for the offices of judge of the supreme court, long term; judge of the supreme court, short term; superintendent of public schools; and railroad and warehouse commissioner, — by the People's Party, to fill vacancies occasioned by the resignation of John McCall, Simeon A. Handy, Joseph D. Elliff, and John R. Smith, candidates, respectively, for those offices. And that at about the same time there appeared in the St. Louis Republic an article containing what purported to be an extract from a letter written by the secretary of state, advising how the tickets should be arranged on the ballot, as follows: "Tickets should be presented so as not to deceive voters. There will be three Populist tickets, one People's ticket, and two Middle of the Road tickets. Fusion county tickets should go on the Rozelle ticket, and Middle of the Road county tickets on Middle of the Road state ticket, — either the one nominated by the convention or by electors. All Populist tickets will have `People's Party Ticket' as heading." That the attention of the clerk of the county court was called to this article. That thereupon he consulted counsel in regard to the matter, and in pursuance of his advice, and that contained in the extract from the purported letter of the secretary of state, he caused the second publication of the ballots, which was made in the same papers on the 3d of November, 1898. That in this second publication the ballot appeared as it did in the first, except that the names of William C. Marshall and his associates were substituted for the names of John M. McCall and his associates on the first People's Party ticket in question, and the names of the fusion county candidates nominated as aforesaid were omitted from the other People's Party ticket, headed by John M. Voris for judge of the supreme court, long term. As thus published, the ballot was printed, and the tickets...