Zeiler v. Chapman

• Decision Date: 31 January 1874
• Parties: FREDERICK ZEILER, Defendant in Error, v. MOSES CHAPMAN, Plaintiff in Error.
• Court: Missouri Supreme Court

54 Mo. 502

FREDERICK ZEILER, Defendant in Error,

v.MOSES CHAPMAN, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1874.

Error to Lafayette Circuit Court.

Wallace & Mitchell, for Plaintiff in Error.

I. It was not the intention of the constitution, that the right of suffrage of the citizen should be left to the whims and caprices of registration officers. There would not be time, by any of the writs known to the law, to compel a supervisor of registration to perform his duty of filling vacancies within the time limited for registration under the law.

II. Voters, who have had no opportunity to register, have a right to vote by taking the oath at the polls at the time of offering to vote. (Const., Art. 2, § 5.)

III. The taking and subscribing of the oath of loyalty is at least prima facie evidence of the right of the person to be registered as a qualified voter and of his right to vote, and such right can only be impaired or destroyed by proof disproving the existence of the right. (Const., Art. 2, § 5.)

IV. It was intended to leave the question of counting the votes marked as rejected open to be decided on the contest of an election, and, in the absence of evidence to the contrary at the trial, they must be counted. (Const., Art. 2, § 5.)

Johnson & Botsford, for Defendant in Error.

I. The fact, that there was a partial or total failure to register the voters in Dover Township, would not authorize them to vote without being registered. (Ensworth vs. Albin, 46 Mo., 450.)

NAPTON, Judge, delivered the opinion of the court.

This is a case of a contested election for the office of Treasurer of Lafayette County in Nov. 1867. The case was originally tried in the County Court, where the contestee, Chapman, was decided to have been duly elected; and afterwards removed to the Circuit Court, where a trial de novo was had, which resulted in a decision and judgment in favor of the contestant Zeiler.

The facts appear to be as developed at the trial, that Chapman, the contestee, received a majority of the votes cast in the county, and upon the returns was declared elected, and duly commissioned as Treasurer; but the returns included one hundred and thirty-nine votes cast for him in Dover precinct, whereas the registration books at that precinct only showed about thirty voters who were registered. Excluding the nonregistered voters at the precinct, Chapman did not have a majority of votes, unless two hundred and ninety-one voters, who were returned as “rejected voters,” and who voted for Chapman, were to be counted. There was no evidence on either side in regard to the qualifications of the two hundred and ninety-one rejected voters, the contestant relying on the fact that the judges of election had reported them as rejected voters, and the contestee insisting that, as they had taken the oath of loyalty and were duly registered, prima facie they were entitled to vote.

To obviate the objection to receiving the one hundred and thirty-nine votes at Dover, the contestee, Chapman, proved, or offered to prove that the registration officer never was at Dover but on one Saturday before the election, or before the fifteen days anterior to the election, that he then registered about thirty voters, and immediately resigned; that application was made to the supervisor of registration by the citizens of that precinct in the form required by law to have some one else appointed; but the application was refused, and no officer was appointed, and consequently no registration was completed in that district or precinct; that the citizens attended at the place of registration for the purpose of registering, but, as no officer was there, they could not register; that therefore on the election day they went to the polls, took the oath of loyalty, and voted. All this evidence was excluded by the court.

And the court determined, that, as the voters at Dover were not registered, their votes must be rejected. And the court further held, that, as to the rejected voters, they were not to be counted. Various instructions were asked as...