West v. Ross

• Citation: 53 Mo. 350
• Parties: JAMES WEST, Appellant, v. ARCHIBALD B. ROSS, Respondent.
• Decision Date: 31 August 1873
• Court: Missouri Supreme Court

53 Mo. 350

JAMES WEST, Appellant,

v.ARCHIBALD B. ROSS, Respondent.

Supreme Court of Missouri.

August Term, 1873.

Appeal from Gentry Circuit Court.

Chandler & Sherman, and W. P. Hall, for Appellant.

I. The negative and prohibiting words render the statute, requiring the numbering of ballots, imperative. (Pot. Dw., Stat. and Const., 221-2, 228; Cato vs. Hutson, 7 Mo., 142; Pearse vs. Morrice, 2 A. & E., 94; Morrill vs. Haines, 2 N. H., 249; Comm. vs. Woelper, 3 S. & R., 29; People vs. McManus, 34 Barb., 620; People vs. Kilduff, 15 Ill., 500.)

Pike, Heron, Ray and Lewis, for Respondent.

I. As to directory and mandatory provisions in statutes, see the following cases: Doughty vs. Hope, 3 Denio, 249; Elmendorf vs. Mayor of N. Y., 25 Wend, 696; Ex parte Heath, 3 Hill, 43; Jackson vs. Young, 5 Cow., 269; Striker vs. Kelly, 7 Hill, 9; People vs. Peck, 11 Wend., 604; 19 Wend., 143; Pot. Dw., 222, 223, n. 29, 224, n.

There is a class of cases which hold, that whether a statute is to be regarded as directory or not, is made to depend upon the employment, or failure to employ negative words which import that an act shall be done in a particular manner or time and not otherwise. (Hoyton vs. Huling, 7 Wend., 144.)

But Lord Mansfield's rule is a better one, that whether the statute is mandatory or not, depends upon whether the thing directed to be done, was of the essence of that required. (Rex vs. Loxdale, 1 Burr., 447; Pot. Dw., 224 n.)

II. The statute having imposed a penalty upon the Judges of Election for any failure to perform the duties pointed out therein (W. S., 571, § 39), the presumption arises, that the counting of the unnumbered ballots would be valid, though a fine would be incurred for so doing. (Morrill vs. Haines, 2 N. H., 299)

VORIES, Judge, delivered the opinion of the court.

This was a proceeding on the part of the appellant against the respondent to contest the election of the respondent to the office of Clerk of the Circuit Court of Gentry county

No question is made in this court as to the sufficiency of the notice filed or the regularity of the proceedings thereunder.

The ground relied on in the notice for the contest of the election of respondent, and for setting the same aside is, that all of the ballots or votes cast, or voted, at said election at the voting precinct of the town of Gentryville, in Miller township in said County of Gentry, were unlawfully counted, when they were alleged to be wholly void for the reason that the ballots were not numbered by the judges of the election, as required by law; that no number was indorsed on the ballots to correspond with the number of the voter as placed on the poll books or otherwise; and that if said votes had been excluded from the count of the votes, it would have resulted in the election of the appellant.

The names of the persons, voting the ballots which were claimed to have been illegally counted, were set out in the plaintiff's notice of contest.

On the trial in the Circuit Court the following facts were admitted by the parties: That the plaintiff and defendant were rival candidates at the election mentioned for the office of Circuit Clerk, as stated in the notice, and that they were the only candidates at said election for said office; and that they both possessed the qualifications required by law to authorize them to hold the office, if elected; that the names of all the voters set out, and named in the notice filed in the cause, represented legal and qualified voters of Miller township, Gentry county, Missouri, and were numbered on the poll books; but that these ballots were not numbered corresponding with the poll books, and were not numbered at all; that the judges of election in Miller township certified, that the respondent, Archibald Ross, received, in the Township of Miller, 179 votes, and that the appellant, James West, received 72 votes, making a majority of votes in said township and precinct for Archibald Ross, the contestee, of 107 over the appellant, James West.

It is further admitted, that the majority for Ross in the whole county, over West, was eight votes; and that if the votes in Miller township which were not numbered had not been counted in said election, West would have had a majority of 99 votes over Ross in said county; and it is also admitted, that no fraud was intended by the judges in failing to number the ballots.

The judges were introduced in evidence and swore, that the failure to number the ballots was an inadvertence on the part of the judges; and that they had counted out the ballots after the poll was closed in the evening of the day of the election, and that the number of the ballots corresponded with the poll books. This was all the evidence in the case.

Upon this state of facts the court found for the respondent, and rendered a judgment in his favor.

The appellant filed his several motions for a new trial and in arrest of the judgment, which being overruled by the court, he excepted and appealed to this court.

The only question, it will be perceived, that is presented for the consideration of this court by the record in this case, is as to the proper construction to be given our statute regulating elections. By the fifteenth section of our election laws (W. S., 566) it is provided, that “the judges, to whom any ticket shall be delivered, shall, upon receipt thereof, promounce, in an...