State v. Swanger

• Decision Date: 20 May 1908
• Citation: 212 Mo. 472,111 S.W. 7
• Parties: STATE ex rel. MARING v. SWANGER, Secretary of State.
• Court: Missouri Supreme Court

111 S.W. 7

212 Mo. 472

STATE ex rel. MARING v. SWANGER, Secretary of State.

Supreme Court of Missouri.

May 20, 1908.

1. ELECTIONS—PRIMARY ELECTIONS—NOMINATION PAPERS—OMISSION OF STATEMENT—EFFECT.

Papers nominating one as a candidate for a public office, to be voted for at a primary election, are not invalid because of an omission from the affidavits of the qualified electors, appended to the papers, of a statement that the respective residences of the signers of the papers are stated in the papers; the requirement of the state primary act that the affidavits contain such statement being directory.

2. SAME—CONSTRUCTION.

The state primary act (Laws 1907, p. 263) being highly remedial, and not in contravention of the common law, its provisions should be literally construed to further its purposes.

3. MANDAMUS — WHEN PROPER — PRIMARY ELECTIONS.

Mandamus lies to compel the Secretary of State to file papers nominating one as a candidate for State Treasurer, to be voted for at a primary election.

In banc. Mandamus proceedings by the state of Missouri, at the relation of Wilbur F. Maring, against John E. Swanger, Secretary of State of Missouri. Final writ ordered to issue.

P. S. Rader, for relator. The Attorney General, for respondent.

PER CURIAM.

The blunt and single question is this: Is the omission of the statutory words, "that their respective residences are stated therein," from the affidavits of the qualified electors appended to two certain nomination papers, nominating Mr. Maring as a candidate for the office of State Treasurer, fatal to their filing—the nomination papers and the appended affidavits being otherwise confessedly in strict compliance with the state primary act? We are of opinion (VALLIANT, J., absent and GRAVES, J., not sitting) that the omission is not fatal to the filing of such nomination papers, as one step towards getting on the official ballot, and that the final writ of mandamus should go. This, because:

(a) Broadly, the state primary act (Laws 1907, p. 263) being highly remedial, and not in contravention of the common law, under canonized rules of construction its provisions should be liberally construed to further and give force to its beneficent life and purpose in advancing the remedy provided, and retarding the mischief struck at. The rigor of very strict compliance with the minutiæ of directory provisions (such as this) of the primary act is not to be exacted at the hands of the plain citizens, unskilled in technical precision, and who are called upon to initiate action under the primary law, unless vehement call is made therefor by the act. The mind of the judicial interpreter of such a law must not be narrow, and on the qui vive for flaws, or it will stumble; and, absent the oil of common-sense construction, the new and untried machinery of the law will break down, and its technical burdens prove its utter undoing. Many instances readily recur of the application of the doctrine of the sufficiency of substantial compliance as against very strict compliance. Thus, e. g., the statute prescribes a form for acknowledgments of deeds. In construing that statute it has been steadily held that a substantial compliance is well enough. See authorities collated by the learned annotator of Ann. St. 1906, p. 842, et seq. The same doctrine is applied in determining the sufficiency of the returns of constables on writs (Ables v. Webb, 186 Mo., loc. cit. 246, 85 S. W. 383 105 Am. St. Rep. 610), in determining the sufficiency of an affidavit for appeal (State ex rel. v. Broaddus et al., Judges, not yet officially reported, 108 S. W. 544), and, closer to the point, in interpreting those provisions of an election law not made mandatory by the clear reason or words of ...