The State ex rel. Funkhouser v. Spencer
| Decision Date | 18 June 1901 |
| Citation | 63 S.W. 1112,164 Mo. 23 |
| Parties | THE STATE ex rel. FUNKHOUSER v. SPENCER et al |
| Court | Missouri Supreme Court |
Rule made absolute.
John H Overall and Charles W. Bates for relator.
(1) No court in this State before which a contested election is pending, or the clerk of any such court in vacation, can, by writ issued to a clerk of a county court or to a board of election commissioners, as the case may be, compel such clerk or board in the presence of contestant and contestee and their attorneys to open, count, compare with the list of voters and examine the ballots in his or its office which were cast at the election in contest and certify to the court from which the writ is issued, the result of such count comparison and examination, so far as the same relates to the office in contest, as well as all the facts which either of the parties to the contest or their attorneys may desire and request to have returned and which may appear from the said ballots and the examination and comparison thereof with said voting list, affecting or relating to the election for the office in contest. Sec. 3, art. 8, Missouri Constitution; Secs. 7044, 7045, 7046, 7047, 7048, 7049, R. S. 1899; Windes v. Nelson, 60 S.W. 129; People v Pease, 27 N.Y. 81. (2) No such writ may issue when contestant objects to the qualification of the one hundred and thirty thousand voters of the city of St. Louis and gives the entire registration list of said city, including contestant's own name, as being the names of the voters to whom he objects. Sec. 7029, R. S. 1899. On such a record the circuit court was without jurisdiction to order the ballots opened or counted or compared with the voting lists because it is only in an election contest that the court has the power to make such an order, and under the facts alleged in this notice of contestant, a case is present for quo warranto and not for contest. And this is apart or aside from all question of the sufficiency of the notice or its amendability, for the circuit court ordered the ballotboxes opened and all the ballots counted and compared with the voting lists on a record that did not present a case of contested election. (3) The fact that contestee did not appear before the court below and object to the making of the order in question, does not stay the remedy afforded by the writ of prohibition to prevent usurpation of judicial power. State ex rel. v. Aloe, 152 Mo. 466.
W. E Fisse, G. A. Finkelnburg and Clinton Rowell for respondents.
(1) It is of course impossible for any one person to know the names of all the men who voted at an election, nor is there any way by which he can obtain these names, except by an order of court made in a pending election case. An inspection of the poll-books or registration books would only furnish the names without any more information, and therefore, if the right to object to particular votes because of the lack of qualification on part of the voter is not to be lost altogether (or practically lost by being limited to the names of those few individuals of whom personal knowledge can be obtained within a few days after the election), it must be availed of by a large claim such as is made in the notices and petitions in these cases. It is strange that in the case of the only feature as to which the statute seems to require particularity of statement in these election contest notices such particularity is required as to a matter concerning which it is entirely impossible in the case of large cities to have or obtain definite knowledge at the time when the notice is required to be made ready. Particular and specific allegations can only be pleaded as definite information is required and must be introduced into the pleading, or what stands for the pleading, by amendment after the filing of the petition or notice. (2) We have studied the applications in the cases at bar with care, but the most assiduous attention has failed to discover any allegation against the propriety of the order, except that it will reveal or may reveal how every man voted at the last election. Since the object of the order is to obtain this very information in order to correct the alleged errors of the judges and clerks at the election and to supersede and overturn the returns of election cast up by them, the objection that the order complained of will be effective for that purpose, is without any force whatever, unless it is intended by these proceedings to establish that there is no law by which the errors of election and canvassing officers, whether innocent or malicious, can be discovered and corrected. The very fact that it is attempted by the use of the highest sovereign writ known to our law to resist an investigation of wrongs and frauds at an election by prohibiting the employment of the original material and documents, is sufficient to at once arrest attention. In this aspect these cases are of the very highest importance. Involved in their decision are the highest rights of citizenship and the essential elements of our political institutions. In cases which are pregnant with such grave consequences we have no disposition to give any time or spend any energy upon matters of mere form. We, therefore, pass over without notice any objections to the mere technical sufficiency of these applications. Any examination of the several orders now brought to the attention of this court must lead to the conviction, that in every particular there has been the most extreme care exercised to protect every public and private right involved in the privilege of suffrage, and the most cautious regard for every provision of the statute which has erected the safeguards and prescribed the regulations under which the secrecy of the ballot may be invaded for the high purpose of securing to the people of any community the actual services as officials of those men whom they have really elected to office. The orders now brought here for review really embody every point and feature of the best method and practice in such cases as it has been developed during the last twenty-five years. These orders neither omitted anything nor added anything to what the Constitution and statute of this State and the decisions of this court authorized or justified. We can not believe, however, that it is the real intention of the complainants to deny the right of the court to direct the commissioners to count the ballots that were voted at the election had for the offices in question. Beyond doubt it is the comparison of these ballots with the list of voters that the parties really wish to have forbidden and prevented. But what good result could follow from the mere count of ballots without this comparison? Would a mere count of the votes found in the ballotboxes, disregarding the question of the right of the persons to vote that cast these ballots, establish the result of the election? If such a recount had any effect whatever to alter the result of the election, could that effect be produced otherwise than by the application of technical rules concerning the preparation of the ballot by the voter, or the marking of these ballots by the election officers? The right to resort to ballots and pollbooks in election cases has long been established. It is equally well established that the ballots and pollbooks are undoubtedly better evidence of the vote cast than the returns, and that they should prevail wherever there is any difference. 10 Am. and Eng. Ency. of Law, pp. 830-834; State ex rel. v. Hoblitzelle, 85 Mo. 620; Art. 8, sec. 3, Constitution. Even upon the most casual reading of the constitutional provisions, one fact is sure to attract attention, and that is, the entire absence of any provision forbidding the use of ballots and lists of voters in contested election cases by the parties to these cases. (3) If in an election contest there is not to be allowed full opportunity to investigate every vote at the election in order to ascertain the name of every man who voted at that election, and to show how he voted according to the record of the election officers, there is no way by which it can be established that there was fraud or wrongdoing at the election. The proceedings in the contest would be limited to a mere recount of the ballots, and the result would be that the election would not be made to depend upon the will of the honest voters and the honest ballots, but would be made to turn entirely upon the errors and omissions, willful or accidental, of the election officers. No opportunity would be given to allow for the operation of any consideration of the voter's qualification; or the actual exercise of the privilege by only qualified and proper persons. Nor would there be any greater opportunity to show that the judges by grossest fraud had tampered with the ballots and changed their character entirely; or even that they had willfully recorded as a vote in favor of A, a ballot which was actually made out and which read as a vote in favor of B. Without the right to fully compare the ballots with the list of voters, there is actually no opportunity whatever allowed to contradict the returns of elections as proclaimed by the election officers. These returns are under these circumstances made the conclusive evidence of the result of the election and any impeachment of the returns is limited to matters of the technical preparation of the ballots by the voter and by the judges of elections and to the mere number of the ballots. (4) In order that the petitioners shall be able to successfully support their contention, that it is improper in an election contest to also allow the parties to inspect the poll books or lists of voters, it devolves upon them to point to some provision of the statute which removes these books or lists from the examination...
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