Straughan v. Meyers

• Citation: 187 S.W. 1159,268 Mo. 580
• Parties: THOMAS B. STRAUGHAN, Contestant, v. CHARLES W. MEYERS, Appellant
• Decision Date: 18 July 1916
• Court: Missouri Supreme Court

187 S.W. 1159

268 Mo. 580

THOMAS B. STRAUGHAN, Contestant, v. CHARLES W. MEYERS, Appellant

Supreme Court of Missouri

July 18, 1916

Appeal from Ste. Genevieve Circuit Court. -- Hon. R. G. Ramsey Judge.

Affirmed.

Thomas B. Whitledge, Samuel Bond and William C. Boverie for appellant.

(1) The title to the Absentee Voter Act is sufficient to include and make operative all of the provisions of the act. State ex rel. v. Ransom, 73 Mo. 78; State ex rel. v Wiethaupt, 231 Mo. 449; State ex rel. v Railroad, 48 Mo. 468; Stephens v. Bank, 43 Mo. 385; State ex rel. v. Gordon, 170 S.W. 892; State ex rel. v. Vandiver, 222 Mo. 219; O'Connor v. Transit Co., 198 Mo. 622; Ewing v. Hoblitzelle, 85 Mo. 64; Sedgwick on Statutory & Const. Law, 521, quoted in Eltinge v. Hickman, 172 Mo. 237. (2) Courts are very reluctant to declare a law unconstitutional on a mere technicality. The unconstitutionality must appear beyond a reasonable doubt. State v. Utle, 65 Mo. 361; State ex rel. v. Jockey Club, 200 Mo. 34. (3) This act is not a local act, and is not unconstitutional as being repugnant to section 53 of article 4 of the Constitution. It applies to all counties of the State and not especially to St. Louis County and city. (4) The well settled law of this State is that where an honest voter presents himself at the polling place where he is entitled to vote and is given a ballot which he properly fills out, and it is deposited in the ballot box, and then departs, he is entitled to have it counted for the men whom he selected on his ballot, and the same cannot be rejected, because of mistake in law, error of judgment, wrongful act of omission or commission of any of the judges of election, unless the mistake, error of judgment or neglect to comply with the provisions of the election law consists in the omission of something that the law itself says is fatal, and only in such cases where the law itself says a ballot is not to be counted shall the vote be rejected. West v. Ross, 53 Mo. 350; Ledbetter v. Hall, 62 Mo. 442; Gunn v. Hubbard, 97 Mo. 37; Hehl v. Guion, 155 Mo. 76; Gass v. Evans, 244 Mo. 238. (5) Failure of judges to put their initials or names on ballot, or to comply with any other provision of law, unless expressly stated by statute to be otherwise, does not vitiate ballot or disfranchise voter. Bowers v. Smith, 111 Mo. 61; Gass v. Evans, 244 Mo. 353.

Jerry B. Burks for respondent.

(1) The Act of 1913, Laws 1913, p. 323, permitting electors to vote in counties other than that in which they reside, is unconstitutional, and the trial court did not err in excluding the thirteen ballots of absentee voters voting for defendant. By express language, said act applies only to the county and city of St. Louis, and is a local or special law, in contravention of Secs. 53 and 54, art. 4, Constitution of Missouri. Said act is further special legislation in that it applies only to a certain favored class of electors, when a general law applicable to all voters could have been enacted. Subsec. 32, sec. 53, art. 4, Constitution; State v. Hill, 147 Mo. 63; State v. Anslinger, 171 Mo. 600; State ex rel v. Messerly, 198 Mo. 351; State v. Miksecik, 225 Mo. 561; Murnane v. St. Louis, 123 Mo. 491. Said act further violates subsection 12 of said section 53, which inhibits any special law for opening or conducting elections or fixing or changing the place of voting. (2) This law, and any law which authorizes a voter to cast his ballot or offer to vote at a place other than the county, city or town in which he resides, is violative of the fundamental law governing elections. Subsec. 2, sec. 2, art. 8, Constitution. This provision of the Constitution requiring a residence of sixty days in the county, city or town where the voter shall offer to vote, is to safeguard the interests of the State and to prevent a fraudulent use of the ballot. So the voter must offer to vote and vote where he resides and is known. Chase v. Miller, 41 Pa. St. 419; Twitchell v. Blodgett, 13 Mich. 143; Day v. Jones, 31 Cal. 261; Bourland v. Hildreth, 26 Cal. 161. There is no such constitutional mandate, expressly or impliedly, justifying any such enactment, as was held in case of State v. Etchman, 189 Mo. 656. (3) Said act is further obnoxious to the Constitution in that no provision is made for numbering the ballots cast; in fact, said act implies, if it does not expressly state, that said ballots should not be numbered. Sec. 3, art. 8, Constitution; West v. Ross, 53 Mo. 350. (4) Section 4 of said act is further vicious in that it permits the clerk and judges of the court, even though they are themselves candidates for office, to sit in judgment and pass upon the legality of ballots returned to them. (5) In any event, the seven ballots cast for Meyers by absent voters, at Commerce, in Scott County, were illegal. The names of all the judges were not endorsed on the ballots, nor were any affidavits made and subscribed to by said voters on the day of said election, at said precinct, during voting hours, in compliance with the imperative mandate of the statute, but on the contrary, said affidavits were made on the day following the election. Secs. 1 and 2, Laws 1913, p. 324. (6) The ballots of Schafer, Rehm, Donze and Owen, absent voters, and voting for Meyers, were illegal. No affidavit was made and subscribed to by Schafer. No names of judges were on the ballot of Rehm. No written affidavit was made and subscribed to by Owen. The affidavit of Donze shows on its face that it was made in Ste. Genevieve County, Laws 1913, p. 324, secs. 1, 2 and 4.

REVELLE, J. Blair, Walker and Graves, JJ., concur; Bond, J., concurs in result; Faris, J., dissents; Woodson, C. J., absent.

OPINION

In Banc.

REVELLE J.

-- This is a contested election case. At the last general election in Ste. Genevieve County, held on November 3, 1914, the contestant and contestee were opposing candidates for the office of presiding judge of the county court of said county. Both parties are elegible under the law to hold the office.

The notice and counter notice of contest, in addition to the necessary averments as to the nomination of candidates and the holding and results of the election as declared by the election officials, contain numerous averments charging specific objections to many of the votes cast, based on the alleged non-residence, non-age, and other disqualifications of the voters, as well as numerous irregularities of many of the ballots.

In addition to the foregoing grounds of contest, the contestant attacks the constitutionality of the Act of the General Assembly, approved March 14, 1913, relating to the manner in which voters who are absent from their place of residence may cast their vote. [Laws 1913, p. 323.]

Applications to the circuit court were made by both parties for writs directed to the clerk of the county court, commanding him to open, count, compare with the lists of voters, and examine the ballots in his office which were cast at the election in contest, and to certify the result of such count back to said court. This was done, and according to the count made by the county clerk, as shown by his report, the contestant received a total of 1121 votes, and the contestee received a total of 1130 votes, a majority of nine votes in favor of contestee.

A certificate of election was accordingly issued to contestee, and he was duly commissioned as presiding judge of that court.

Such other facts as are material and essential to a determination of the questions presented will be noted in the opinion.

In this action the legislative act (Laws 1913, p. 323) relating to absent voters and prescribing the manner in which they may vote, is challenged as being obnoxious to the Constitution, and the facts are such that a determination of this question is essential to a decision. The title to the act is:

"AN ACT to enable railroad employees, traveling salesmen and other persons, required by their duties or occupation to be absent from their voting precincts on the day of any general election, to cast their votes wherever within the State they may be and providing for the counting of such votes and prescribing penalties for violations thereof."

The body of the act provides that employees of railroad companies, traveling salesmen, college students, and all other persons who are qualified electors of this State, and who, by reason of their business, occupation or duties, are on the day of the general election, unavoidably absent from the county in which they reside, may cast their ballots in any voting precinct of the State where they may present themselves on the day of the election. The act then proceeds to name the conditions and regulations under which the absent voter may avail himself of the privilege, and enjoins upon him certain duties, among which are: that he present himself during voting hours and make and subscribe, before one of the election judges, an affidavit relative to his residence and qualifications as an elector; the reasons of his absence from his county; and that he has not voted and will not vote elsewhere. This being done the act provides that he is then entitled to a ballot of a certain and specifically defined kind, to-wit, a blank ballot with the names of all the judges written on the back thereof. This ballot he is then authorized to mark, fold and hand to the judge in like manner as a resident voter. The act further provides that such ballot shall not be deposited in the ballot box nor entered upon the poll books, but shall together with the affidavit, be sealed in an envelope, which shall be signed by one of the judges and be filed with the clerk of the county where the ballot was cast, and be by him transmitted to the clerk of the county where the voter resides. Ample...