*1
Silvey
Summer,
v.
“A title of-his landlord. dispute tenant cannot outstanding an or an- up is that a tenant cannot set meant this If, however,,a tenant has ac- tagonistic title to that of his landlord. directly quired title, through or the medium of his landlord’s either sale, spoken apply.” . . of does not tax . the rule judgment is reversed and the cause re- For the reasons stated the vesting legal full to render and enter dеcree manded with direction All appellants. real concur. title to the estate Long Appellant, Bernhardt, Walter v. J. William C. James Kosel. No. 40533. Young. L. A. 40534. Wilson, Appellant, L. No.
John Long and Walter Kosel. Larkin, Appellant, v. James Louis J. 40535.
No. George Engledow, Appellant, v. Elizabeth Hentcher Mark Krodinger. 40536. No. George v. Elizabeth Cole, Appellant, Hentcher Kro
John dinger. (2d)W. 112. 40537. 209 S. No. One, Fеbruary 9, 1948.
Division Rehearing Denied, March
Samuel Bicheson for appellants. respondents. W. Thurman for
J. [113] *3 BRADLEY, C. These five cases are election contests of school in directors Consolidated School District No. 5 of Jefferson ' County. The separately eases were filed below and separately appeal ed, but were consolidated (respondents) in each case filed motion to dismiss. The five contests below and here. The contestees alleged facts, were based on same except names of parties, and there stipulation judgment was a that the in what is case 40,533 No. here judgment would be the in the other four cases. The trial court sus tained motion to 40,533, dismiss No. and that case and the four others were dismissed and appeals these fоllowed. The appeals were supreme properly to the court because “the title to an officeunder this Y, 3; state” is involved. Const. Art. State ex rel. Worsham v. al., 124, Mo. 44 W. Ellis et 329 S.
The motion dismiss was based on grounds: these (1) That the does not notice of contest set forth facts constituting grounds of con- test; (2) that said notice does not contain averments of .substantive required law; under the and (3) contest that said notice is in- required in law to constitute the contest sufficient under the Constitu- statutes of this state. tion and of contest takes the The notice petition in the ordin Grainger, Messick v.
ary
1227,
suit.
356
The notice Consolidated School District County, duly was 5, Jefferson organized; Number that the board of annual sсhool election in called said directors district to be held at house in the district on April MeGehan 1947, from 7 purpose electing m. for the a. m. to 6 directors and voting appointed board levy, judges and that three on a (naming them) election; for said secretary board, that the of the William Bern- C. hardt, posted notice public places of said election in five in the' dis- days prior secretary trict date election; of the that the board, public at expense, prepared ballots, poll books, the official talley and judges sheets and delivered these to the of said election April by before 7 A. 1947; published that the official ballot was m. secretary by posting copy thereof in public places five in the dis- days election; judges trict before the appoint- that the of the election clerks; judges ed two that the and clerks held said election at the Mc- April Gchan school house between the hours of 7 a. m. 6 P. M. prior
That to the Long, Kosel, election James J. Walter L. A. Young, Stegelmeyer unknown, C. H. and others in order to raise money for the school election purposes, together associated under the Community Improvement name of Association; Long and Kosel (contestees) cooperated raising money to be used in furtherance of their election as school directors and to defeat Bernhardt; that said Association, Long Kosel, with prepared and printed large appearance number of ballots similar in to the officialballot and caused “by said simulated ballots to be force placed and fraud” in the hands judges clerks said election by given these out to the election; at the voters that the simulated ballots were mistaken for by large and voted number of voters as the official ballots and were judges along counted with the official cast; gave count of the ballots сast a total of 80 votes for Bernhardt official (contestant) for director “and none for other opposing candi date”; “by that the of said election reason bodily of fear of certify harm” did not of the school board “the total vote of the official ballots” cast for Bernhardt; that the judges were *4 “by prevented fear intimidation” part on the Long and Kosеl from removing and their associates the simulated ballots from the polling place and from the hands of the voters or from the ballot boxes. Long and their
That associates and.Kosel intimidated-the election a disturbance of officials; peace “created in the place; election polls functioning long from for kept periods time; caused vоters away polls; from the to be scared caused a letter to be written to the attorney, judges by prosecuting and delivered during purpose of bringing pressure election for the on the election offi- “accept cause said officials to genuine” cials and to the simulated fraudulently thereon Avhiehhad “official ballots ballot”; caused the electiоn appear at the with a sheriff to bundle of the simulated force the use thereof” ballots “and to the election officials; caused very doors the solicitation polling place”; votes for them (Long that 230 of said simulated and Kosel) “at counted; that contestant is were cast for school director if out) and that (qualifications set simulated ballots are eliminated officeof school director.” votes for tbe no “received contestees set ballot are and the simulated ballot the official termed What is pertinent here these follow: far as So of contest. notice in the out (Alleged Ballot) Simulated Ballot) Official (Alleged Consolidated District No. 5 No. 5 District Consolidated County, Jefferson Mo. County, Jefferson Officiаl Ballot Ballot Official Annual Election Election Annual McGehan Schoolhouse Schoolhouse McGehan April 1, 1947 1, 1947 April PROPOSITION: To elect six six To elect PROPOSITION: directors; year two for one terms; terms; year for one directors; two year two for two terms; and two terms; and two year for two two for year three terms. year terms. for three For One Year Term Term Year For One (votе for two) two) for (vote JOHN KRODINGER KRODINGER L. JOHN A. YOUNG JOHN L. WILSON WILSON L. JOHN H.C. STE'GELMEYER
For Two Year Terms Term Year Two For (vote two) for two) for (vote MARK ENGLEDOW ELIZABETH HENCHER ENGLEDOW MARK JOHN COLE JOHN COLE GEORGE KRODINGER For Three Year Term Year Term For Three (vote two) two) (vote for LOUIS LARKIN LARKIN LOUIS JAS. J. LONG Wm. C. BERNHARDT BERNHARDT Wm. C. *5 WALTER KOSEL alleged offi on how to vote were on the Identical instructions necessary set out these ballots. It will not be to cial and simulated 1939, relating 8, chapter Article R. S. to election instructions. contests, in 1945. Laws repealed was and reenacted things, act, among provides other that no election Sec. of the new contest be a shall be unless notice of such school director contested provided, specify “the notice given as therein that the grounds upon which the contestant'intends to rely, if any qualifications any voters, objection be made to the the names of objections the shall be stated therein.” No com such voters and qualifications any of made on the the voters who voted at plaint is concerned, hence it stands conceded election that those who the school alleged simulated ballots the 230 were voters of the voted school district. allegation any money is no that cooper
Thеre contestees raising purpose. used for stating was Without the ated facts alleged fraud, constituting say force and it is a mere the conclusion to “by force and placed alleged the contestees fraud” the judges. hands of the And it a say ballots in the is mere conclusion to “by bodily judges reason of fear of harm” separately that the did not certify of the school board the alleged total vote on the category same fall allegations official ballot. And of in judges by alleged of the the contestees. No timidation facts are constituting the cause intimidation. The contents of the letter attorney, charged which is to have prosecuting been written for bringing pressure on the election .purpose accеpt officials to allegations ballots are not set out. The alleged simulated as to the let had imply that its contents an undue ter would influence on the wrongfully accept of the election caused them to alleged Without the contents of the simulated ballots. letter or the substance a allegation is no more than conclusion. thereof the And the same allegation appeared that the sheriff is true as to the at the election of the simulated ballots and with bundle forced “the use to what the sheriff did to constitute thereof.” As the force is not allegation that the contestees alleged. The caused the solicitation of very polling “at the doors of the place” votes for themselves alleges a might subject If was done the offender punishment fact. such 1939), authority but counsel cite no (See. 4374 R. S. and we find none invalidate the election of general would contestees. “As that such fraud), an election will (in absence of not be rule annulled even if regarding law elections have provisions strictly certain not been Bohon, Armantrout v. 349 Mo. S. W. followed.” l. c. 871. length necessary discuss at lаw as to pleading It is not con- Sec., to dismiss under the code, The motion new civil
clusions. 375, takes demurrer 1943, p. under the Laws former *6 demurrer, that a did not admit conclusions It is known well practice. al., 1064, 18 Realty v. Dierks et S. W. Co. Jewel as true. (Mo. Remington Flemington Sup.), al. v. School District et al. et
1043; Eyssell, (2d). al. (2d) 800; Mack et 332 Mo. 59 S. W. 22 W. S. allega there is merit in the appear unless some it would 1049. So ballot, аlleged simulated contestants must the fail. as to tions charges alleged the up the on simulated ballot. We now take ballots, added setting out the two etc. were as an allegations The hearing by at on to the the motion dismiss. amendment interlineation say in frankness contestants the brief that “the With commendable right is as of appeal private parties sup to the issue on principal by provided public the board at ex official ballots the plant private expénse by at printed private parties and with ballots pense officially candidates not listed on the official containing names of ballot secretary.” of and it by the board education prepared R. of S. 1939 referred to herein have numbers the All section same Mo. R. A. part in S. of numbers article section manner, time, rules, the 72, prescribes pertinent etc. to the chapter in district concerned held the school here. This section was election 1943, p. 885, by inserting Laws a new proviso, but amended pertinent not here. proviso is inserted here Sec. 10483 is pertinent as follows: “The far So . . consolidated school by of such . district shall vote voters provided by law for questions all submission at the upon annual ballot meetings, such election shall be held on Tuesday and the first in the district April a. m. point and three of each closing at judges year, as the of election for each and 6 o’clock board at such may designate, beginning convenient u. of said voting place, day. or The board places and at 7 said shall o’clock judges with- ap- judges.and clerks; said clerks two shall be sworn appoint and the shall in the samé manner as the conducted otherwise elections for election and the thereof county by result certified officers and state secretary of of education, the board to the who shall clerks record board, issue and, of said shall same, by order сertificates of election thereto; and the results all propositions entitled other persons secretary reported board, must and by be him submitted All propositions records. upon the duly entered submitted at district may upon meeting be voted one and the same ballot, annual said made out shall be books furnished necessary poll by the . . .” secretary of the board provides that Sec. that the “necessary noted poll be It will by and furnished out be made the board”, shall
books or secretary that the board shall provision no make out or there but print the name or candidate thereon, or furnish ‘‘ Also, it will be noted that says the section ballot. all publish meeting annual may at said (not be) submitted propositions 4JÍ4 ours). (italics same The names upon one ballot”
voted for ballot, alleged simulated hence no printed were on the of contestants any way voting against was in tricked into voted that ballot voter who forms, supra, from ballot there were It will be noted contestants. on the ballot the names of each set candidates blank lines two under ballot, and and on the one furnished the board *7 “If the voter desires to vote on each ballot was: of the instructions printed may appear whose names do not on the ballot he for candidates drawing through printed a name of candidate for line the do so of writing below such cancelled name the name the and such office (x) vote, placing and a cross mark in he desires to person for whom might say We neither оf of name.” square at the left such the square. they in the record has the appear the ballots as to the only deception that could be attributed The ‘‘ ’’ official thereon the words ballot. Since it contained ballot is that ballots, require board or to furnish the not the law does by the board had no attribute and furnished prepared ballot official Bohon, by the board. In Armantrout v. except that it was furnished nullify facts, be sufficient to the result of a ruled that the supra, it is mandatory a of election, violation some statute must show school usually an invalidates There is no conduct as or such other election. any, requiring the school board of mandatory or statute Con statute election, for 5 to furnish the ballots the school No. District solidated board, by the there is no such statute or are furnished if and ballots use thereof. requiring exclusive any statute 11593, 11594, 10328, to Secs. make reference Contestants say and 10689 R. S. that these statu 10681, and 10466, 10508, and supra, point should with Sec. materia pari are in tes “All Sec. 11593: follow: ballots cast 11594 way. 11593 Secs. printed this state shall be officers public within for in elections provided. printing hereinafter The еxpensé, as public at distributed for the electors in each cards of instruction and of the the ballots of officers, to the election delivery of the same county, and the pro county charge, except be where the a shall in section vided exclusively city officers, in which ease such are for tq be voted officers city charge, payment of which delivеry be a shall printing payment manner same as the of other in the for provided shall be printed cause electors county or date Sec. whose to be provided duty 11594: or city expenses.” name any of printed of ‘1 for in Except as has clerk in the every election been this electors within of the ballot appropriate article. certified to in this county article otherwise Ballots for or filed court of each his public other than those participate, county the name of with officers in him county provided, in every printed by which the provide manner it shall and to candi
435 county according to respective clerks courts the provisions .the shall or in this article not be cast counted election.” juris- The officeof school director is an “office under this state” for V, ex purposes dictional under Art. Sec. State rel. Worsham Const. officers, al., supra. Therefore, public et are Ellis school directors in has clear, think, public but it is we that the term officers pari no The means phrase reference to directors. materia subject Dictionary. upon matter. Law In view оf the same Black’s are subject matter the article which Secs. and 11594 pari 10483, besides, sections not in part, these are materia with Sec. article, it in Sec. in the same that the article does provided apply not to school elections. districts, relates elections
Sec. 10328
to bond
in school
but makes
prepare
no
as to
shall
furnish the
referencе
who
or
ballots. Sec.
city
organization
district,
to the
town or
10466 relates
among
things,
provides,
other
that the “ballot shall contain the names
’’
membership
of candidates for
on the new board
education.
The
say
prepare
not
the ballot. Sec.
relates
section does
who
qualifications, election, and term
directors of
consolidated
*8
200,000
(cid:127)high
districts in counties
more than
inhabitants.
says
propositions
that “all
submitted at
annual
This section
said
ballot,
necessary
may
upon
be voted for
one and the same
meeting
by
be
out and furnished
poll books shall made
as to
is no direction
who shall furnish the
board.”
ballot.
There
1941,
1941,
542,
10681,
amended in
Laws
elec-
Sec.
relates to the
75,000
in school
in cities of
and less
directors
districts
tion
provides
This
that
500,000 inhabitants.
section
than
shall vote
ballot for school directors
school district
voters
such
furnished,
books
be
but
section is silent on
poll
and that
in the same
as
furnish the ballots. Sec. 10689 is
article
Sec.
who is to
special
elections in such school districts. There
10681, and relates
Assuming,
that aids contestants.
without
nothing in that section
sections,
11593,
except
pari
11594 are in
the mentioned
deciding, that
nothing
10383, there is
in either
said sections to
materia with
aid contestants.
simulated,
alleged
use of
ballot in
proposition
On the
contestees, contestants
et
cite: Gaston
election of
validated the
20,
1100; Bradley
Cox,
21
271
al., Mo.
S. W.
v.
et
115
Lamkin
al. v.
McKinney,
656,
v.
157 Mo.
W.
W.
Rollins
57 S.
88;
S.
438, 197
Mo.
W.
Smith,
Mo.
20 S.
101.
It will not be
v.
1027; Bowers
They
support
cases.
do not
the contention
review these
necessary tо
of the use of the
effect
as
of contestants
McKay
sáy
the Bowers case was overruled in
might
We
ballots.
McKay
617, 55 S. W.
1. c.
that the
Minner,
v.
Evans,
The five eases should dismissal in each of the Osdol, CG., affirmed. It is so ordered.. Dalton and Van concur. adopted FEE by Bradley, G., is foregoing opinion CURIAM: The opinion of the court. All the concur. Smelting Refining Corporation, v. James St. Company, Louis Joseph Doing J. Hoban A. d. b. a. Business Under Lambert, Style the Firm Name and Company, Appel of Midwest Service lants. No. 40312. 209 S. W. 119. One,
Division March