111 Mo. 45 | Mo. | 1892
Lead Opinion
This appeal was first heard in division 1, and a conclusion announced, November 9, 1891, as reported in 17 S. W. Rep. 761.
After a motion for- rehearing was denied, plaintiff moved to transfer the cause to the court in banc. The motion was ultimately sustained, upon the entry of a dissent by one of the judges to the decision of the first division.
The case was then fully reargued before the whole court.
It is a statutory contest to determine the respective rights of the parties to the office of sheriff of Pettis county.
The election in question took place November 4, 1890. Mr. Bowers is the contestant. For convenience, he will be called the plaintiff, and his opponent, Mr. Smith, who is the contestee, the defendant.
The circuit court of Pettis county sustained motions to strike out some parts of plaintiff’s notice. Exceptions were saved to that ruling.
The case then came to trial. As will appear, the real issues were finally resolved into questions of law, and upon them the trial court found for the defendant.
Plaintiff then appealed, after the usual motions.
After the formal contest began, plaintiff applied for, and obtained a recount, by the county clerk, of the original ballots east at all the precincts in the county. The recount was conducted as provided by the statute on that subject. Revised Statutes, 1889, secs. 4721-4726. It resulted in an exhibit that defendant had a plurality over the plaintiff of thirty-three votes in the county, and that no less than three thousand voters had cast their ballots in the city of Sedalia at that election.
Both parties rely on the recent statute concerning elections (Revised Statutes, 1889, secs. 4756-4794), commonly known as the “Australian Ballot Law,” as first enacted in this state. It is thus conceded to apply to Sedalia as a city of over five thousand population. The points of difference to be determined relate to features of the election in that city, held under that law.
We need not pause to state the particulars of the rulings in the trial court, raising the material questions
Plaintiff’s contention is that the entire returns from Sedalia should be thrown out of the final count, for several reasons.
I. He claims that the official ballots, printed by the county clerk for use at the voting places in that city, contained (among others) the names of the nominees of the Union-Labor party, and that that political party had not polled three per cent, of the entire vote at the last previous general election, as required by section 4760, Revised Statutes, 1889.
Conceding (without investigating) the fact on which that claim rests, does it follow that the vote of the precinct should be discarded!
In interpreting the statute in question, it must be remembered that its adoption here brings it into subordination to the fundamental law of Missouri, and that prior decisions, elsewhere, construing enactments on the same general topic, cannot properly be followed if inconsistent with that fundamental law.
By our constitution general elections are held at certain fixed dates, and the right of suffrage is expressly secured to every citizen possessing the requisite qualifications. The new ballot law cannot properly be construed to abridge the right of voters to name their public servants at such elections, or to limit the range of choice (for constitutional offices) to persons nominated in the modes prescribed by it. Nominations under it entitle the nominees to places upon the official ballots, printed at public expense; but the Missouri voter is still at liberty to write on his ballot other names than those which may be printed there.
The statute recognizes this right by requiring sufficient blank space for such writing, next to the
In this respect our law differs from the English act of 1872, under which no actual poll of voters is held, unless more candidates are formally nominated than there are vacancies to be filled.
These observations seem necessary to guard against the supposed effect of adjudications in other states or countries, construing features of such laws differing from those in force in this state.
The living question which this case presents is what construction shall be given to the Missouri statute on this subject, and to what extent the constitutional rights of voters depend upon the correctness of action of the county clerk in preparing and printing the official ballots.
The act of the clerk which is called in question consisted of admitting names to the ballot, not of excluding any.
There is a substantial difference, in principle and in effect, between admitting and excluding such names.
The practical consequence of erroneously adding a name to the ticket is merely to enlarge the voter’s range of choice among candidates on the official list. In Missouri any voter may add such a name for himself in the blank provided on the ballot for that purpose.
How then are errors of this sort to be’ treated?
Plaintiff insists that they vitiate the whole return; that every such error of judgment is a sufficient ground to disfranchise the voters of the locality where such ballots are used.
The law in question presents a number of points at which errors may be expected of the most faithful and conscientious officers. It will often require nice judgment to determine (among other things) whether party candidates have been regularly nominated; how
It is declared to be the duty of the county clerk to provide the ballots, and that all others than those printed by him according to the provisions of this law “shall not be cast or counted in any election.” The plain meaning and purpose of this expression can be seen from the context in the section in which it occurs and that which next follows. Revised Statutes, 1889, secs. 4772-3. The design is to preclude the voter and his party friends from supplying his own ballot (as was the former practice), and to compel him to use only that furnished by the state, through the county clerk. The latter is directed to print no other names on the voting papers than those of the candidates nominated according to the provisions of that law. The title of the original act (Session Acts, 1889, p. 105) and its opening lines show that uniformity in the printing and appearance of the ballots is one of the main objects aimed at. The prohibitions above noted are inserted to further that object; .but they give no countenance to the notion, advanced by the plaintiff, that their purpose or effect is to nullify the result of every election at which the county clerk may make some error in publishing or printing the names on the only ballots that can be used.
Legislative language should be clear and unequivocal to justify an inference that such consequences were intended to flow from it. Rutherforth on Institutes [2 Am. Ed.] p. 413.
Some of the latter are submitted to the secretary of state and he certifies certain nominees to the county clerk. Revised Statutes, 1889, sec. 4767.
Errors in omitting or adding names to the list of candidates, by rulings on the nominating documents, are distinguished from errors made in the mere printing of ballots, by the terms of the law itself. Section 4778 provides a summary remedy to correct any “error or omission in the publication of the names or description of candidates nominated for office, or in the printing of the ballots.” So that the language of section 4772, forbidding other ballots than “those printed by the respective clerks of the county courts according to the provisions of this article” to be cast or counted, obviously carries no such meaning as to nullify ballots, printed by county clerks as directed by the law, and cast by voters in conformity thereto, but incorrectly made up beforehand by the secretary of state or the county clerk by erroneously admitting some candidate’s name to a place on the ballot.
The suffrage is regarded with jealous solicitude by a free people, and should be so viewed by those intrusted with the mighty power of guarding and vindicating their sovereign rights. Such a construction of a law as would permit the disfranchisement of large bodies of voters, because of an error of a single official, should never be adopted where the language in question is fairly susceptible of any other. Wells v. Stanforth (1885), 16 Q. B. Div. 245.
It is proper, and often necessary, to consider the effect and consequences of a proposed interpretation of a law to ascertain what is probably its true intent. State v. Hope (1889), 100 Mo. 361; 8 L. R. A. 608. The consequences which would inevitably follow the acceptance of the reading proposed by the plaintiff are so far-reaching and disastrous that they constitute a vigorous argument against adopting it.
More than that, section 4778 clearly discloses a legislative design to provide for the correction of just such errors as we are considering, at the instance of any elector (including every one interested) before the election. The process is so summary that the inference is irresistible that the errors it is designed to reach should be rectified by prompt action then, so as not to subject voters to the risk of losing their votes by reason of those errors.
“Sec. 4778. "Whenever it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office, or in the printing of the ballots, the circuit court of any county, or the judge thereof in vacation, or if the circuit judge is then absent from the county, a judge of the county court, may, upon application by any elector, by order, require the clerk of the county court to correct such error, or to show cause why such error should not be corrected.”
In connection with this section, it should be remembered that, “at least seven days before an election,” the county clerk is required to cause the list of nominations, “ arranged in the order and form in
This “ballot reform law” was intended to improve the methods for giving expression to the popular will in the choice of public officers. It should be construed so as to promote, not destroy, the great objects in view in its passage. It resembles and, in the main, follows statutes elsewhere on the same subject; but is not identical with its models at all points. A glance at these models, however, will show how foreign to the reason and spirit of such legislation is the idea that the unwary voter is to be subjected, in the name of “reform,” to the risk of losing the right of suffrage every time an error in admitting a name to the official ballot is made by an officer passing upon the regularity of nominating' papers, when no objection to his ruling is made before the election. Section 4778 was evidently framed with the view to avert such risk. It coincides with part of section 19 of the New York law of 1890. It is not found in the English statute, but there we read that “the returning officer shall decide on the validity of every objection made to a nomination paper, and his decision, if disallowing the objection, shall be final; but, if allowing the same, shall be subject to reversal on petition questioning the election or return.” 35 & 36 Vict. (1872), ch. 33, sched. 1, sec. 13, p. 214, This provision applied at first to parliamentary elections
So that, in England and New York to-day, the erroneous' addition of a name to the official list of nominees, though not corrected before the election, is harmless in its effect upon the voter’s right to use the official ballot without fear of possible disfranchisement. This, we consider, is also the proper meaning to be' placed upon the law of Missouri. Any other would metamorphose the supposed ‘ ‘reform” into a gigantic trap where the inoffensive citizen might readily be deprived of his most valuable right as a freeman by political manoeuvres in the form of “errors,” the force of which he could not foresee until too late to avoid their consequences.
A single case appears to antagonize the conclusion we have reached on this point, namely Price v. Lush (1890), 10 Mont. 61. With all respect due to the court that decided it, we think it embodies a misapplication of the English precedents which it cites. It entirely omits to mention or consider the effect of section 19 of the Montana statute (General Laws Montana, 1889, p. 140, substantially the same as our section 4778), which should be given some significance to prevent such unjust consequences to voters as have been explained, and which are impossible under the English ballot act, which that case purports to follow and expound.
Some other decisions, however, are supposed to cast light on the present discussion, and will, therefore, be touched upon.
In Talcott v. Philbrick (1890), 59 Conn. 472, the supreme court of Connecticut had to deal with a statute
The case showed that some ballots, in a local election, had been issued by the Republican party, but were headed “Citizens;” yet so loth was the court to disfranchise a few persons, who had voted for an aider-man in Hartford, that the ruling, pronouncing the “citizens” ballots illegal, was made by three judges only, the other two dissenting.
The exact value of such a decision in enlightening the case at bar we need not pause to measure. The reader can probably as well determine that for himself.
In People ex rel. v. Board of Canvassers (1891), 129 N. Y. 395, the statute required a certain uniform official indorsement on all ballots, cast at any one polling place, to preclude identification of any particular vote or class of votes, and declared that “no ballot that has not the printed official indorsement shall be counted.” The facts were that certain ballots, having an indorsement different from others properly used at the precinct in question, were voted by twelve hundred and fifty-two electors; and the court rejected the ballots
■ We mention these cases neither to approve nor to disapprove them; but to indicate how inapplicable they are to the case in hand, and to show that, even with language as positive as that they construe, how reluctant are the courts to adopt an interpretation, the effect of which is to deprive a large number of their fellow-citizens of the electoral franchise.
Having regard to the spirit and purpose of the Missouri statute, and to the general principles governing the treatment of popular elections by the courts in this country, we think it should be held that where a candidate for public office causes no timely objection to be made before the election (as permitted by section 4778), he should be regarded as having waived all objections that may exist to the presence on the official ballot of any names of nominees not properly entitled to be there. Compare Reg. v. Bradburn (1876), 6 Ont. Pr. 308, and Allen v. Glynn (1892), 29 Pac. Rep. (Colo.) 670; s. c., 17 Col. 338.
II. It is next charged that the “Union-Labor” list of names of candidates was not legally certified to the county clerk.
How it was certified is not stated. That it was not certified at all is not alleged. From what appears it is evident that the pleader is giving merely his views of the certificate, of which neither the language, substance nor legal import is mentioned, so that the court cannot judge whether it was “legally certified” or not.
In addition, therefore, to the reasons already assigned for declining to review in this proceeding the alleged errors of the county clerk in preparing and printing the ballot, the application of a familiar rule of code pleading makes it unnecessary to discuss as a fact such
III. It is next asserted that the votes from Sedalia should be excluded because they were received at two polling places instead of at one.
It appears that the county court had designated Sedalia city as one election district, but had further provided two voting places therein for holding this election, with one set of judges at each, as hereafter more particularly described. This was done by orders to that effect before the election. Both of the voting precincts were at the courthouse in that city.
At one, the voters whose surnames began with the letters “A” to “K” voted; at the other, those with the letters “L” to “Z.” Each poll was reached by way of a window, and the two were only seventy-five feet apart. The windows fronted on one portico of the court building. Through them, passways led to the polling booths in the rooms within, where the election judges were stationed and received the ballots.
Assuming that these arrangements involved the irregularity of receiving the vote at two places instead of at one, does it nullify the will of the people so expressed, the election having been regular in other respects?
Undoubtedly some irregularities are of so grave a nature as to invalidate the whole return of the precinct at which they occur; as, for example, the omission of registration. Zeiler v. Chapman (1874), 54 Mo, 502. In determining which are of that kind, the courts aim merely to give effect to the intent of the law-makers in that regard, aided by established rules of interpretation.
If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance, of the requirement.
It has been sometimes said, in this connection, that certain provisions of election laws are mandatory, and others directory. These terms may, perhaps, be convenient to distinguish one class of irregularities from the other. But, strictly speaking, all provisions of such laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview. But it does not, therefore, follow that every slight departure therefrom should taint the whole proceedings with a fatal blemish.
Courts justly consider the chief purpose of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end; and, in order not to defeat the main design, are frequently led to ignore such innocent irregularities of election officers as are free of fraud, and have' not interfered with a full and fair expression of the- voters’ choice.
Thus, in Davis v. State ex rel. (1889), 75 Tex. 420, the law required that each ward in a town should “constitute an election precinct;”, yet, in San Marcos, a town incorporated with four wards, the county commissioners established two precincts only (without reference to ward lines), and each included parts of the adjacent country; but the court-, after full discussion of the general subject, held that the election at those precincts was not avoided by the irregularity.
These cases find support in others, illustrating the same principle. Gass v. State (1870), 34 Ind. 425; Dale v. Irwin, (1875), 78 Ill. 180; Wheelock’s case (1876), 82 Penn. St. 297; Preston v. Culbertson (1881), 58 Cal. 209; Farrington v. Turner (1884), 53 Mich. 27; and Peard v. State (1892), 51 N. W. Rep. (Neb.) 828, a case under a ballot reform statute.
Such rulings are not peculiar to election proceedings, but result, logically, from the application to them of a time-tested rule of interpretation which requires that the general design and object of a law be kept in view and effectuated, even if it be necessary, in so doing, to restrict somewhat the force of subsidiary provisions that otherwise would conflict with the paramount intent. Cortis v. Waterworks Co. (1827), 7 B. & C. 330.
Elections under the “Australian ballot” statutes fall within reach of the principle above stated.
In the English law of 1872 it is enacted that “no election shall be declared invalid by reason of a noncompliance with the rules contained in the first schedule to this act, or any mistake in the use of the forms in the second schedule to this act, if it appears to the tribunal having cognizance of the question that the ■election was conducted in accordance with the principles laid down in the body of this act, and that such non-compliance or mistake did not affect the result of
(The rules and schedules prescribe the forms of nomination papers, and the procedure for conducting the election.)
It has been judicially determined in that country that the language just quoted is merely declaratory of the common law of England. Woodward v. Sarsons (1875), 10 C. P. L. R. 751.
It certainly goes no further, as a curative power, than the accepted general principles of the law of elections in this country, as expounded by the courts.
"We consider that they have a just and proper application to the facts now in judgment. It is not asserted, on this appeal, that the supposed irregularity, of having two voting booths instead of one, had any bearing upon the result of the election to the prejudice of plaintiff, and we are unable to conjecture how it could, in any wise, have redounded to his disadvantage. We believe it furnishes no sufficient reason for excluding the vote of the two precincts in the circumstances.
IV. We conclude that *a reasonable and natural construction of the law forbids us to repudiate, for any such reasons as have been presented, the three thousand votes cast in Sedalia in 1890.
If for every error of a county clerk, or harmless irregularity in election procedure, citizens, having no control over either, are [to lose their right of choosing public officers, the “reform ballot act,” instead of being found an improvement of the machinery of popular government, will justly be denounced as a “snare to entrap the unsuspecting voter.” Gumm v. Hubbard (1889), 97 Mo. 319. Such a result, however, was never, contemplated in its enactment, and should not be brought about by a narrow and technical reading of it.
While it is well enough to insist on a proper and strict performance of duty by officers conducting elections, we are not of the number of those who imagine that such performance will be promoted by disfranchising the whole body of electors in any locality where errors, such as are here charged, occur. The legislature has not plainly declared such a purpose, and wo think it should never be imported into a statute by construction.
It seems to us, after full reconsideration of the case, that the decision of Judge Field on the circuit, in favor of defendant, was right, and should bo affirmed.
Dissenting Opinion
(dissenting). — At the general election held on the first Tuesday in November, 1890, Ellis R. Smith was the Republican candidate for sheriff, and Josiah A. Bowers was the Democratic candidate.
This is a proceding under the statute by which the appellant is contesting the election of the respondent. The contestor gave notice of the contest as required by statute, as did also the contestee. After the contest was begun, under a provision of the statute a re-count was had which gave the contestee Smith a majority on the face of the county clerk;s count of thirtv-three.
Bor Bowers...................................... 3289
Bor Smith..................................................... 3332
Bor Sappington................................................. 65
Bor No vote..................................... 197
Total .......................,............................. 6873
The abstract of the vote of the city of Sedalia was as follows:
Bowers. Smith. Sappington. No vote.
Sedalia City, A to K......... 618 852 19 93
Sedalia City, L to Z.......... 654 840 13 71
Total.................................................... 3160
Yarious grounds were assigned in contestor’s notice but after the re-count the parties virtually stipulated to withdraw all charges of lack of qualification of the various voters, and all charges relative to illegal voting.
The remaining objections are contained in the fifth and seventh grounds of notice, which are as follows:
“Fifth. That said general election, on November 4, 1890, was legally conducted in the city of Sedalia in said Pettis county, in this, that notwithstanding the said city of Sedalia on said day constituted by a single voting precinct with fixed boundaries, yet. during the whole of said day and during the whole time of election on said day two separate and distinct polling places were maintained by different sets of judges and clerks of election within the limits of said voting precinct in said city, and votes were received during said day and said election at both of said polling places by the respective sets of judges in charge thereof, and the votes so received at both of said polling places were afterwards certified by the respective sets of judges and clerks of election of said two polling places to the county clerk of said Pettis county, and which votes so certified were afterward included by said county clerk*67 and the two justices of the peace, called in by said clerk, in the official count of the votes cast at. said general election in said Pettis county, all of which was and is contrary to the law of this state, and by reason whereof the said votes so certified from said city of Sedalia should have been and should be wholly excluded from the official count of the votes cast in said county at said general election.”
11 Seventh. That in said city of Sedalia in said Pettis county the said general election was required to be conducted under the provisions of article 3, chapter 60, of the Revised Statutes'of Missouri, 1889, and that on November 4, 1890, said general election was not ■conducted in the manner required and as provided in said article of said chapter, in this, that the only tickets furnished to the voters and electors at said election in said city of Sedalia and required to be used by them in voting at said election were illegal, and did not conform to the provisions of said article of said chapter, but on the contrary were prepared, printed and furnished in violation of said statute. And among other reasons ■said tickets were illegal, because the said tickets so furnished and required to be used and voted at. said election contained a list of candidates for various offices under the heading of ‘Union-Labor,’ of and among which said list was the following: ‘Eor sheriff, Gr. D. Sappington,’ and which said list of candidates under the said heading was printed upon and made a part of said tickets without any authority therefor, and contrary to the provisions of said statute for the reasons:
“First. That there was not at the time of said election nor on or within sixty , days prior thereto any political party within said Pettis county having or being known by the name of ‘Union-Labor’ or any other similar name, or any name of similar import, which had at the last general election in said county*68 before said general election in 1890 polled as a party at least three per cent, of the entire vote cast in said Pettis connty at such prior election, and said list of names of candidates was not legally certified from any convention of a political party, having the right in law to certify the nomination of candidates to be inserted in the tickets to be used and voted in said city of Sedalia at said general election in 1890.
“Second. That said list of candidates was not nominated as provided by law, and their alleged nomination was not certified by a certificate of nomination signed by electors resident within the said city of Sedalia, nor by electors resident within the said connty of Pettis to a number equal to one per cent, of the entire vote cast at the last preceding general election in said Pettis county prior .to said general election in November, 1890.
“Third. That the alleged nomination of said list of candidates and of each of them- so printed on said tickets under said heading of ‘Union-Labor’ was not made or certified to the clerk of the county court of said Pettis county, by filing a certificate of nomination executed with the formalities prescribed for the execution of an instrument affecting real estate, and no certificate of nomination of said candidates or of any of them, executed with the formalities prescribed for the execution of an instrument affecting real estate, was filed with the clerk of the county court of Pettis county, Missouri.
“For which reasons the votes cast in said precinct in and for the city of Sedalia were and are illegal, and should have been, and should be, wholly excluded from the official count of the votes cast at said general election, in November, 1890, in said Pettis county.”
The contestee filed a motion to strike out of the 'eontestor’s notice the fourth, fifth and seventh para
On the trial of the case the contestor offered in evidence one of the official ballots, which were cast at the election in question, and also read in evidence the county clerk’s abstract of the votes cast for the parties at such election as ascertained by the re-count. The court refused, against the objections and exceptions of the contestor, to admit evidence showing that the city of Sedalia at the time was a city with over five thousand inhabitants. The court then admitted evidence showing that the one hundred and sixty-four votes in the Sedalia city precinct referred to in the county clerk’s return of his official re-count as “no votes” were so returned because the majority of said ballots were not counted for either of the three candidates for sheriff by reason of the fact that the name of only one of the same was crossed out leaving the names of two candidates voted thereon for such office. The court next refused evidence offered by the contestor to show that two polling places were held in the Sedalia city precinct with fuoo sets of judges, clerics, poll-boolcs and ballot-boxes. And contestor offered evidence in connection therewith to show that in one of said polling places all voters the initial letter of whose last name fell between “A” to “K” inclusive were required to vote at one polling place, while in a like manner all between “L” to “Z” voted at the other polling place, but that the poll-books showed about fifty exceptions to the rule, voters to that number having voted at the wrong places under such arrangement. That at each of said polling places there
At the close of the contestor’s case, the contestee offered in evidence his certificate of election, and his commission, and rested, and the court thereupon rendered judgment for the contestee.
In due time, the contestor Bowers filed his motion for new trial, assigning as error the sustaining of contestee Smith’s motion to strike out parts of contestant’s notice and striking out said paragraphs (fourth, fifth and seventh) and excluding legal and competent evidence. This being overruled, the cause was appealed to this court.
The trial court excluded evidence tending to prove that the city of Sedalia was a city having over five thousand inhabitants on the date of the general election in 1890. If the trial court refused to hear this evidence on the ground that it would take ue(K-officio” notice of the population of Sedalia, its ruling might be sustained; otherwise it was erf or to decline to hear it. By section 4794, article 3, chapter 60, only applied to cities of five thousand inhabitants. It was most material to know whether that article applied to the contest. It is, however, conceded by both sides here that said city has a population largely in excess of five thousand. Under these circumstances, article 3 of chapter 60, Revised Statutes, 1889, was applicable to the method of holding and conducting said election in said city.
I. The contestor insists that the vote of the city of Sedalia should be rejected altogether, because the
This, it will be readily seen, presents a question of great moment. The right of suffrage is justly esteemed the corner stone of our free institutions. Our election laws are framed with the special purpose of preserving this right, and of enabling every citizen, whatever his position in society, to express his choice, untrammeled and unintimidated. It is earnestly contended by counsel that, if the statute is to be construed so that ballots cannot be counted which contain names of candidates prohibited by the statutes, then it is unconstitutional. The argument of counsel for contestee is based upon the wrong that would be done the voter to deprive him 'of his franchise on account of the illegal act of a public officer, and that the statute is merely directory and not mandatory.
The right to make laws to preserve the purity of elections is expressly conferred on the legislature in some of the states by their constitutions, but, in Missouri, the power to regulate elections by law has never been doubted or denied. In the administration of these laws, individual instances doubtless will occur when the voter loses his ballot, but this is no greater hardship than befalls the individual in the administration of other general laws.'
“A court of law,” says Lord Abinger, “ought not to be influenced or governed by any notions of hardship; cases may require- legislative interference, but judges cannot modify the rules of law.” Rhodes v. Smethurst, 4 M. & W. 63. “It is not for courts of justice ‘proprio mm-te’ to provide for all the defects, or mischiefs of imperfect legislation.” Per Story, J., in Smith v. Rines, 2 Sumn. 354.
In West v. Ross, 53 Mo. 350, in a statutory contest for the office of clerk of the circuit court of Gentry county, the statute required that all ballots cast should be numbered, and that ballots not numbered should not be counted; it appeared that none of the votes cast in Miller township were numbered by the judges of the election; that Ross received in said township one
The same statute received the same construction again in Ledbetter v. Hall, 62 Mo. 422.
In State ex rel. v. Frazier, 98 Mo. 426, the special act of the legislature, incorporating the city of Rolla', required that the voters at city elections “shall register their names at least two weeks next preceding the election. ” A city election was held, and certain citizens elected councilmen. The election was held in every
Now section 4772 provides “except as in this article otherwise provided, .it shall be the duty of the clerk of the county court of each county to provide-printed ballots for every election for public officers in which the electors or any of the electors within his county participate, and to cause to be printed in the appropriate ballot the name of every candidate whose name has been certified to or filed with him in the manner provided for in this article. Ballots other than those printeclby the respective clerks of the county courts, according to the provisions of this article, shall not be cast, or counted in any election.”
Section 4773 provides that “every ballot printed under the provisions of this article shall contain the name of every candidate whose nomination for any office specified in the ballot has been certified or filed according to the provisions of this article, and no other names. ”
Eor the purposes of this discussion, it must be taken that the motion to strike out the allegations in the notice as to the names of the Union-Labor candidates confesses the truth of that averment; which I hold is a clear and concise statement, and its sufficiency as a pleading was not questioned by opposing counsel in the circuit or this court. It was reserved for this
In Gumm v. Hubbard, 97 Mo. 311, it is true, the words, “shall be considered fraudulent,” were in the statute, but the words, “and shall not be counted,” affixed the punishment, that should be visited upon the ballot, declared by the statute to be fraudulent.
The alternative is plain, we must either follow a statute which the legislature has enacted, and had a perfect right to enact, or hold that it is optional with the county clerks to obey the election law or not, as their judgment may dictate. By holding that a violation of this provision does not affect an election, we in effect nullify the statute, and say to election officers, it is not necessary to follow its commands.
But it is argued by contestes that no fraud on the part of the clerk or of respondent is charged.
In West v. Ross, it was expressly admitted, the judges were guilty of no fraud in failing to number the ballots, yet that did not prevent this court from declaring the election void.
In Gumm v. Hubbard, Judge Black says the statute furnishes an absolute rule of evidence. It makes the ballot fraudulent without regard to intent. So it
In 6 American & English Encyclopedia of Law, page 348, section 8, it is said: “In many of the states there are statutes prescribing the form of the ballots, the kind of paper, etc., and prohibiting any marks, figures or devices by which one can be distinguishedfrom another. These statutes being designed to preserve the secrecy of the ballot, and to prevent fraud, intimidation and bribery, will generally be considered mandatory, and this will be so in all cases where the statute provides that a ballot varying from the requirements of the law shall not be counted.” And at page 325 of the same volume it is said: “A violation of mandatory provisions will avoid the election without regard to the motives of the persons guilty of the violation and without any inquiry into the effect of the result of the election.”
Again it is said no harm was shown to have resulted to contestor. It appeared from the evidence in the trial court that, upon the re-count, contestee Smith had a majority of thirty-three votes only. It further appeared there were one hundred and sixty-four votes cast in Sedalia that were returned as “no votes.” “In about three-fourths of said ballots the . state of the case was that the same were not counted because one of the three candidates for sheriff was scratched leaving the other two upon the ballot, and in a very large majority of such three-fourths of said ballots the aforesaid result arose from the fact that the voter struck out one column of candidates, or the candidates of one political party, and left the candidates of the other two parties or columns intact.” Now according to the statutes of this state, as only the nominees of two political parties had been certified to the county
But it is argued that the constitution secures to every voter the right to cast his ballot for whom he pleases. Certainly this is not denied, and, in order that he may not be restricted simply to those candidates whose names are printed on the official ballot, it is expressly provided in section 4773 that “at the end of the list of candidates for each office shall be left a blank space large enough to contain as many written ■ names of candidates as there are offices to be filled.” We agree with counsel for appellee that if this new election law of May 16, 1889, should restrict the election to the names printed on the official ballot, and made no provision for his substituting any name he chose for any office to be chosen it would be unconstitutional. On the contrary, it has expressly guarded against that in section 4773 by leaving space for him to write the names of as many candidates as there are offices to be filled.
If an aspirant for office does not belong to any of the great parties in this country, and is not fortunate enough to have the nomination of a party that cast three per cent, of the votes at the last election, he is still not debarred; he can procure the certificate' of •electors within his district or political division to the number equal to one per cent of the vote cast at the last general election. This system contains many features that are new, and they have not yet received ■construction by the courts of the several states. In Price v. Lush, 24 Pac. Rep. 749, the supreme court of Montana held that as this was an English statute, and had been often construed by the courts of that country, the territory of Montana must be presumed in adopting it to take it with the construction it had received in
But the power of the legislature to regulate elections has been elaborately reviewed by the court of appeals of New York very recently in the case of People ex rel. v. Board of Canvassers, 29 N. E. Rep. 327.
The Australian ballot system, with some modifications, was adopted by the legislature of that state in 1891. The title of the act was “An act to promote the independence of voters at public elections, enforce the secrecy of the ballots and provide for the printing and distribution of ballots at public expense.” Laws of 1891, N. Y., ch. 296.
Section 31 of the act provides that “no inspector of election shall deposit in a ballot box or permit any other person to deposit in a ballot box on election day any ballot which is not properly indorsed and numbered except in the cases provided for in section 21 of this ■act.” Section 17 of the act required this indorsement “official ballot for-,” and it was provided that after the word “for” in the blank should follow the description of the polling place for which the ballot is prepared, the date of the election and a fac-simile of the .signature of the county clerk, and the ballot shall contain no caption or other indorsement.
The town of Camillus, in Onondago county, was divided into two election precincts. In some way it turned out that all the Republican ballots in district
Says Rugee, C. J.: “But it is urged that a strict construction of the law must result in disfranchisement. This is true, but the law plainly contemplates such a result, and who can complain except those who are opposed to any restrictions whatsoever upon the action of an elector! No advocate of the reform ballot law can justly criticise a result which was in the minds of its authors when the law was drafted and enacted. They clearly contemplated this effect, and determined that the injustice which a few might suffer through ignorance, wilful blindness or inattention to the requirements of law should not be permitted to defeat the great good to be secured to the whole people by the adoption of an effectual scheme for the purification of elections.”
This case fully meets tbe argument of respondent, that tbe ballots in tbe case at bar were official ballots prepared by tbe county clerk, and bis illegal act cannot disfranchise a voter. In tbe New York case tbe ballot was indorsed “official ballot,” but by tbe wilful or negligent act of tbe clerk tbe wrong precinct was indorsed, and they were rejected. Tbe point is identical in principle. It was tbe act of an official, and tbat court, as we have already said, but followed our own decisions, supra, wherein tbe act of tbe election judges disfranchised a whole township.
Tbe supreme court of Connecticut in Talcott v. Philbrick, 59 Conn. 472; 20 Atl. Rep. 436, bad a question identical in principle with this. There, as in Missouri, this Australian ballot system was adopted in 1889. By tbe first section of chapter 247, page 155, “Acts of Legislature, Connecticut, 1889,” it is provided among other things, “in addition to tbe official indorsement, tbe ballots shall contain only tbe names of tbe candidates, tbe office voted for, and the name of the political party issuing the same.” And section 12 provided tbat “All ballots cast in violation of tbe foregoing provisions, or wbicb do not conform to tbe foregoing requirements, shall be void and not counted.” Certain ballots, two hundred and eighty-six in number,
Says the court: “We are relieved of any obligation to inquire as to the necessity or reason of this or that requirement, and we are not at liberty to dispense with anything that is required, whatever the reason for it may be, or even if without any apparent reason at all. The legislature has spoken, and obedience is our first and only duty. It is at liberty to throw around the ballot box such safeguards and regulations as it may deem proper, and it is the duty of the citizen to conform thereto. Some inconvenience is not too great a price to pay for an honest pure ballot.” And as applicable to the notice of contest in this case the court says: “The ballot does not speak the truth. It purports to have been issued by a Citizens’ party, but it was in fact issued by the Republican party; it implies that there was a Citizens’ party, but there was not.” In this ■ease, the ballot implies there was a Union-Labor party, but the motion to strike out confesses there was not; and yet the names of candidates of such a party were placed on this so-called official ballot to mislead and confuse the voter, and actually had that result.
In Fields v. Osborne, 21 Atl. Rep. 1070, this same Connecticut statute again came under review. This was an annual election for the town of Branford. Among other offices to be filled was that of “town cleric.” By the statutes this office is “ex officio” the registrar of births, marriages and deaths in their respective towns. No vacancy existed, and by law no election for probate judge was authorized at this election. There were two tickets in the field. The Demo
The act of 1889 was confined to cities of five thousand inhabitants. It was an experiment. The legislature apparently hesitated to adopt it for the state at large, lest its requirements might confuse the officers and voters, but the city elections demonstrated that it was not difficult to comply with it, and it rapidly won the public favor so that the present legislature has applied its provisions to every precinct in the state. Except for the gravest reasons we ought not to set aside the plain mandate of the legislature, but if we permit the plain violation of that law that was committed in this case we nullify the statute.
But it is objected, that, notwithstanding the county clerk placed upon the ballots at this election the names of candidates in positive violation of the statute, the
II. Again it is contended by the contestor Bowers, that the vote of the Sedalia precinct should be excluded, for the reason, that the county court ignored section 4673, in the appointment of judges of the Sedalia precinct.
The statute, section 4777 in connection with 4673, provides that the court shall appoint six judges for each
If the county court of Pettis county may disregard the election law by appointing six additional judges and a second polling place, they may establish a dozen in the same precinct, and if that court may do this all other county courts may do likewise. The precedent would be dangerous and pernicious. It would open wide the door for fraudulent practices, and practically nullify the statute. Counsel for contestee says: “Certainly some of the judges acted legally, and how can it be decided as to which lot of ballots shall be thrown out, and which body of electors deprived of their votes'?” -We answer that where the conduct of the election is so grossly irregular that the courts cannot determine which are legal and which illegal, the whole should be disregarded. In no other way can the laws be upheld, and the purity of the ballot preserved.
And there are other considerations that doubtless controlled the legislature. It was intended that the boundaries of each precinct should be defined, and every elector therein should know the voting place. It was never intended, as was done here, that the initial letter of a voter’s name should subject him to the annoyance of going from one voting place to another according to the initial letter of his name. It was the clear intention of the law that every voter in each precinct should vote at one and the same place, and that these precincts should be small enough to permit each voter to cast his ballot on the day of election without annoyance. The suggestion that this had been previously done is not in the case, and if it was is no justification. There was no evidence heard on this branch of the case that would tend to estop the contestor.
As the judges in excess of six were not even “de facto” judges, it resulted that at least six persons unauthorized by statute were permitted to pry into the ballots of the voters, and thus destroy that secrecy which the constitution secures against every one but a sworn and lawful election officer. The position taken by my learned brother, that the twro polling places within one precinct is not an abuse of the statute, is not sustained by- those judges of this court who hold that this violation of a positive enactment does not vitiate the election.
The case from the supreme court of Texas in Davis v. State ex rel., 12 S. W. Rep. 957, is cited as authority. But the facts in that case show that the
I presume I may be permitted also to cite the dissenting opinion of Judge Henby, 12 S. W. Rep. 962, as furnishing to my mind the most satisfactory reasons why the election in that case should have been held void. I quote from his opinion: “The doctrine of de facto election precincts finds no place in the law. What is unlawful for the commissioners’ court and the voter to do in the first instance,.cannot become right or lawful by being repeated. The law, much less the constitution, cannot be repealed or superseded by such methods. * * * The law does not, however, authorize two separate elections to be held in one ward or any other election precinct. It directs and authorizes one only. For the purpose of preventing fraudulent voting, the policy of the law is that there shall be only one poll, at which one person can cast his vote.”
I am glad that the judgment of this court does not at least approve the clear violation of the law in appointing two sets of election judges in one precinct, and that in the future the county court will avoid this clear violation of the spirit and letter of the law. This appeal will accomplish this much good, if no more.
I cannot give my assent to the opinion of the majority.
I understand that the legislature has a right to enact laws regulating elections, and that it is the duty of the courts and the citizen alike to obey them, so long as they do not infringe upon the constitution.
When the legislature adopted what is popularly known as the Australian ballot law, its purpose was most clearly to throw around the voter and his ballot additional safeguards and render him less liable to be
It follows from these views that I hold the ballots containing the names of the Union-Labor candidates void, and that the dividing of the city into two polling places was illegal and unauthorized, and resulted in placing the ballots in the hands of parties who had no authority to see them, and was a clear violation of the statute. In so doing, I follow the command of the law in a matter of the highest public concern.
The judgment of the circuit court should be reversed, and the cause remanded for trial in accordance herewith.
Dissenting Opinion
(dissenting). — I concur in the result reached by my brother Uantt on the second point discussed in his opinion, but I fear he has stated the principles upon which he bases that result too broadly. I am not prepared to say that a county clerk’s action in preparing a ticket under our election laws can be reviewed by the courts after the election in all cases, nor am I willing to say that it cannot be reviewed in any case. That would, in my judgment, depend on circumstances.
Under the specifications in the notice of contest in this case which were stricken out on motion of the contestee, the contestor would have had the right to introduce evidence to show that the Union-Labor party had no existence in Pettis county; that Sappington had not
I fully concur in what was said by Shebwood, P. J., in division number 1, in State ex rel. v. Lesueur, 103 Mo. 253, that the secretary of state does not occupy ‘ ‘the attitude of a mere figurehead or automaton, moved about at the whim or touch of every eager applicant who desires the performance of duties which pertain to his office. When applied to for the discharge of such duties, although his discretion may not reach the height known as judicial, * * * yet it cannot be doubted that some portion of the qualities and attributes of discretion necessarily inhere in the discharge of his official duties, requiring him to consider before acting, and to search and inquire before reaching and announcing a conclusion.”
These remarks are as applicable to the county clerk under our election statutes as to the secretary of state, but I do not believe the power of the secretary of state or clerk in preparing the official ballot is wnlimited. It would be a pernicious doctrine for the courts to assert that the county clerk can arbitrarily and ad libitum put names on the official ballot that ought not to be put on it, and that the candidates who have a legal right to have their names on it must resort to the courts before the election or lose their remedy. On the other hand, if the clerk should receive the certificate of nomination, should examine into the facts in regard to it, should decide that the names of the parties mentioned therein ought to go on the official ballot, and should print and publish it as required by law, and no objection to it
I take the position that the clerk has not a ca/rte blanche to put the name of every eager applicant, who may so request, on the official ballot, nor should a ballot be declared void in every case in which a name is on it which ought not to be on it, where the clerk exercised a sound discretion in preparing it. This leaves the courts to review the action of the clerk, and to adjudicate the issue as the very right of each case may demand.
The' court below ought to have refused to strike out the portions of the notice of contest it did strike out; ought to have heard the evidence in regard to how and why the names of the Union-Labor candidates were printed on the ballot, and to have disposed of the issue on the evidence.
I fully agree with my brother Barclay in what he has said in his opinion in regard to the election precincts in Sedalia. Eor the reasons given above, I think the judgment of the lower court ought to be reversed, and the cause remanded for new trial on the merits.
