The State Ex Inf. Crow v. Roberts
| Decision Date | 19 December 1899 |
| Parties | THE STATE ex inf. CROW, ATTORNEY-GENERAL, v. ROBERTS |
| Court | Missouri Supreme Court |
Writ of ouster denied.
E. C Crow, Attorney-General, Edwards & Edwards and Rechow & Pufahl for relator.
(1) The county clerk had no right to decide upon which People's party ticket the names of the fusion county candidates should be printed and there being two People's party State tickets certified to him in regular form it was his duty to print the names of the fusion county candidates under both said tickets. People ex rel. v. Dist. Court of Arapahoe Co., 31 P. 339; State ex rel. v. Piper, 69 N.W 378; Shields v. Jacob, 88 Mich. 164; State v Allen, 62 N.W. 65; State v. Piper, 50 N.W. 25. (2) The controlling object of the Australian law is to secure an absolute secret ballot and every positive requirement must be held mandatory, and for that reason section 4775, as amended in session acts of 1897, page 107, must be held mandatory. 6 Am. and Eng. Ency. of Law, p. 325; Bowers v Smith, 111 Mo. 89; Hall v. Schoenecke, 128 Mo. 668; Hope v. Flentage, 140 Mo. 401; Slaymaker v. Phillips, 40 P. 971; State v. McElroy, 11 So. Rep. 133; People ex rel. v. Canvassers of Onondago Co., 29 N.E. 327; State Phelan v. Walsh, 17 L. R. A. 364; Van Winkle v. Crabtree, 55 P. 831; Oglesby v. Sigman, 58 Miss. 502; Steel v. Calhoun, 61 Miss. 556; Reynolds v. Snow, 67 Cal. 497; Dann v. Woelper, 3 S. and R. 29; State v. McKinnon, 8 Ore. 493; Perkins v. Caraway, 59 Miss. 222; Dronne v. Coquon, 9 Quebec, 20; English v. Peele, 48 Cong. H. R. 1547. (3) The burden is on the respondent to show title to the office. High on Extra. Legal Rem., sec 629; State ex rel. v. McCann, 88 Mo. 330. (4) If the irregularities are so great that the election is not conducted in accordance with the law either in form or substance, and render the result uncertain, the returns should be set aside. 10 Am. and Eng. Ency. of Law (2 Ed.), p. 767; McPike v. Penn, 51 Mo. 63; West v. Ross, 53 Mo. 350; Zeiler v. Chapman, 54 Mo. 502; Ledbetter v. Hall, 62 Mo. 422; State v. Frazier, 98 Mo. 426; State v. McMillan, 108 Mo. 153; Bowers v. Smith, 111 Mo. 45; Gaston v. Lamkin, 115 Mo. 20; State v. Seibert, 116 Mo. 415. (5) The pleadings of the State need not give the names of the voters who were confused, and who failed to vote. 5 Wait's Actions and Defenses, p. 263; State v. Palmer, 24 Wis. 63. (6) Where the title to an office depends upon the legality of the election, the proper remedy is by quo warranto. High on Extra. Legal Rem., sec. 53; 10 Am. and Eng. Ency. of Law (2 Ed.), 799; Ellingham v. Mount, 43 N. J. L. 470; State v. Douglas Co., 18 Neb. 506; State v. Kennon, 7 Oh. St. 547; People v. Barber, 49 Barber, 9; Buckman v. State, 34 Fla. 48; State v. Kean, 17 R. I. 391; State v. Meek, 129 Mo. 431; State v. Frances, 88 Mo. 557; State v. May, 106 Mo. 488.
Upton & Skinker and R. L. Goode for respondent.
(1) It is the settled law of this State that in quo warranto proceedings filed on information of the Attorney-General, and either with or without a private relator, if reliance is had on the voters having been deceived or defrauded, the names of the voters must be specified in the information, so that the other party may be warned and thus enabled to take issue on each voter. State ex rel. v. Vail, 53 Mo. 119; State ex rel. v. Townsley, 56 Mo. 107; State ex rel. v. Mason, 77 Mo. 189. (2) Errors committed in printing the ballots do not render the election void, nor constitute a flaw in the title of the incumbent. This is well settled since the adoption of the Australian ballot law with its efficient modes of correcting errors in the ballots. Bowers v. Smith, 111 Mo. 45; Atkeson v. Lay, 115 Mo. 538. (3) The statute does not prescribe that the ballots shall be of uniform width so they can not be distinguished from each other by the backs, nor does it provide that they shall be void if they are not of such uniform width. In fact, this whole talk about different widths of ballot is trivial and childish under the evidence in the present case. "No voter should be disfranchised on account of a mere irregularity occasioned by neglect or misconduct of election officers, over whose conduct he has no control, unless the Legislature has declared such irregularity fatal." Sanders v. Lack, 142 Mo. 262; 6 Am. and Eng. Ency. of Law, p. 325; Weil v. Calhoun, 25 F. 865; Arnold v. Lea, 1 Cong. Election Cases, 601; Boyden v. Shober, 3 Cong. El. Cases, 904; Smith v. Shelley, 6 Cong. El. Cases, 18; Sloane v. Rawles, 4 Cong. El. Cases, 144; Giddings v. Clark, 4 Cong. El. Cases, 91; State v. Watson, 9 Mo. 593; Kirk v. Rhoads, 46 Cal. 398; State v. Wasson, 99 Ind. 261.
OPINION
In Banc.
Quo Warranto.
-- 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 eighth 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 non-conformity 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 Democratic 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 Commissioner -- 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 officers 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 twenty-seventh 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 ...
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