Timmonds v. Kennish

• Citation: 149 S.W. 652
• Parties: TIMMONDS v. KENNISH.
• Decision Date: 26 June 1912
• Court: United States State Supreme Court of Missouri

149 S.W. 652

TIMMONDS v. KENNISH.

Supreme Court of Missouri.

June 26, 1912.

1. ELECTIONS (§ 177) — BALLOTS — INDORSEMENTS—REGISTRATION NUMBER.

Rev. St. 1909, § 5905, which provides the steps to be taken by election officials upon the delivery of a ballot to them by an elector, and for the indorsement upon the ballot of the number corresponding to the number of the person voting in the registration book whenever a registration is required by law, was revised to include such provision, after the amendment of the Constitution in 1877, by providing for a registration of voters in cities of over 25,000 inhabitants. Rev. St. 1909, § 5899, provides that the officers of an election district shall deliver ballots to an elector with the indorsement of the initials of the two judges of election and the number of the ballot voted only. Held, as both sections of the statute are general laws and cannot be applied to the same ballot, section 5899 will apply where .there is no registration number to go on the ballot and section 5905 where there is such a registration number.

2. ELECTIONS (§ 177) — BALLOTS — INDORSEMENTS—REGISTRATION NUMBER.

Rev. St. 1909, § 6189, which is a portion of the special election law applicable to the city of St. Louis, provides that there shall be a registration of all the qualified voters conducted according to the election laws of the state, so far as not inconsistent or in conflict with the special act. Section 6220 provides for the steps to be taken upon the handing of a ballot to the judge of elections, but does not require a registration number to be indorsed thereon. Section 5899 of the general election law provides that no writing shall be on the back of a ballot, except the initials of the judges of election and the number of the ballot voted; while section 5905 provides for a registration number also. Held, that the passage of the special act after that of the general law, without requiring a registration number to be indorsed, evidences a legislative intention to require no such indorsement; and the conflict between the general and special act will be resolved in favor of the latter, so that the indorsement of such a number is not required.

3. STATUTES (§ 214)—CONSTRUICTION—GEERAL INTERPRETATION.

The construction of the election law applicable to the city of St. Louis, by election officials, to require no registration number to be indorsed on the ballots, and the acquiescence of the public therein, with the later reenactment of the law by the Legislature, without requiring such indorsement, are facts entitled to great persuasive force in determining whether the statute required such a number to be indorsed.

In Banc. Election contest by Henry C. Timmonds against John Kennish. Judgment for defendant.

See, also, 232 Mo. 390, 134 S. W. 571; 238 Mo. 560, 142 S. W. 422; 149 S. W. 628.

William C. Marshall and W. M. Williams, for contestant. Spencer & Donnell and Jones, Jones, Hacker & Davis, for contestee.

FERRISS, J.

On `the returns from the general election held in November, 1910, defendant was declared elected over plaintiff to the office of Judge of the state Supreme Court by a majority of 5,357 votes, and thereafter duly qualified and entered upon the performance of the duties of the office.

This proceeding was instituted by plaintiff to contest the right of defendant to said office. Evidence has been taken at length by a commissioner appointed by this court, and the case is submitted upon his `report, exceptions thereto, and arguments of counsel. As finally submitted, the case on the merits presents a single proposition, which its stated as follows in plaintiff's brief: "As to the case of Timmonds v. Kennish, we contend that the judgment must be in favor of Judge Timmonds and against Judge Kennish for the first reason above stated; that is, that none of the ballots cast in the city of St. Louis in 1910 had indorsed on them the registration numbers, as required by section 5905, and consequently none of the votes in St. Louis can be counted for either party, and that without the vote in St. Louis Judge Timmonds was elected."

It is also contended by defendant that this court has no jurisdiction of the case.

It is conceded by defendant that none of the votes cast in the city of St. Louis in the election of 1910 had the registration number of the voter indorsed thereon. It is further conceded that without the vote of St. Louis plaintiff would have been elected, as he had a majority of the votes cast in the state outside said city. The case, then, depends upon whether the absence of the registration number of the voter in the city of St. Louis on his ballot invalidated his vote. If it does, then the entire vote in St. Louis must be thrown out, and the office given to plaintiff.

Registration and elections in the city of St. Louis are governed by a special law applicable to cities of 300,000 inhabitants and over. Sections 6189 et seq., R. S. 1909. Section 6189 reads as follows: "In all cities of this state now having or which hereafter may have three hundred thousand inhabitants or more, there shall be a registration of all the qualified voters, and said registration and the mode of conducting the elections held in such cities shall be governed and controlled as provided herein, and be subject to all the provisions of the other election laws of this state, so far as the same are not inconsistent or in conflict herewith."

There is also this section in the general law: "Sec. 5810. Elections in St. Louis conducted, how.—All elections in the city of St. Louis shall be conducted in all respects as provided by the laws now in force regulating elections in said city."

It is contended that, inasmuch as the law provides for registration in St Louis, section 6189, above quoted, reads into the special law the provisions of section 5905 of the general law, so far as they require a registration number on the ballot. Said section 5905 reads thus: "Sec. 5905. Duty of judges.—The judge to whom any ticket shall be delivered shall, upon receipt thereof, pronounce in an audible voice the name of the voter; and if the judges shall be satisfied that the person offering to vote is a legal voter, his ticket shall be numbered and placed in the ballot box without inspecting the names written or printed thereon, or permitting any person or persons to do so; and the clerks of election shall enter the names of voters and the numbers of the ballots, in the order in which they were received, km the poll books, in conformity with the form printed in section 5809, and, in addition, whenever a registration is required by law, place on such ballot the number corresponding with the number opposite the name of the person voting, found on the registration list; and no ballot not so numbered shall be counted; and the ballots, after being counted, shall be sealed up in a package and delivered to the clerk of the county court or corresponding officer in any city not within a county, who shall deposit them in his office, where they shall be safely preserved for twelve months; and the said officer shall not allow the same to be inspected, unless in case of `contested elections, or the same become necessary to be used in evidence, and then only on the order of the proper court, or a judge thereof in vacation, under such restrictions for their safe-keeping and return as the court or judge making the same may deem necessary; and at `the end of twelve months, said officer shall publicly destroy the same by burning, without inspection; and no judge or clerk of an election shall disclose the names of the candidates voted for by any voter, and any judge or clerk violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, `shall be punished by a fine of one hundred dollars."

This section (5905) originated in 1865, and appears in the General Statutes of that year as section 15, c. 2. It contained no provision for a registration number on the ballot. The Constitution of 1875, § 5, art. 8, provided for a registration of voters in cities of over 25,000 inhabitants. In 1877, and evidently in view of the said constitutional provision the Legislature amended section 15 of `chapter 2 of the Statutes of 1865 by inserting therein a provision that the registration number of the voter should be indorsed by the clerk of election on the ballot "whenever a registration is required by law." Laws of 1877, p. 246. The law, as thus amended, appears as section 5905 in the present Revision of 1909. This section is a general law, and is found in article 5, c. 43, R. S. 1909, entitled "Elections."

In 1889 an act was passed governing elections in cities of over 5,000 inhabitants, and providing that the judges of election should initial the ballots, but making no provision for any number thereon. The act (section 4780, R. S. 1889) reads as follows: "On any day of election of public officers in any election district, each qualified elector shall be entitled to receive from the judges of the election one ballot. It shall be the duty of such judges of election to deliver such ballot to the elector. Before delivering any ballot to the elector, the two judges of election having charge of the ballots shall write their names or initials upon the back of the ballot, within two inches of the top thereof."

This section was subsequently amended (page 133, Laws of 1891, and page 107, Laws of 1897), and, as so amended, appears in the present revision as section 5899, as follows: "On any day of election of public officers in any election district, each qualified elector shall be entitled to receive from the judges of election one ballot of each political party voted for at said election. It shall be the duty of such judges of election to deliver such ballots to the elector. Before delivering any ballots to the electors the two judges of election having charge of the ballots shall write their names or...