271 Mo. 438 | Mo. | 1917
Lead Opinion
This is an election contest. The office involved is that of Judge of the Springfield Court of Appeals. Contestee has been declared elected and has been commissioned. In the primaries held August 1, 1916, contestant and contestee were regularly nominated by the Democratic and Republican parties, respectively. There are forty-four counties in the Springfield Court of Appeals District. The only questions raised in this proceeding grow out of happenings in Maries County. In the forty-three counties, other than Maries, contestant received 86928 votes and contestee received 87271 votes. In Maries County contestee received 721 votes, making his total 87992. One vote cast in Maries County is conceded to contestant, making his uncontested total 86929. One thousand three hundred and eleven other votes for Judge of the Springfield Court of Appeals were cast in Maries County, and the principal question is whether these votes should be counted for contestant. Contestant’s name, as the name of the regularly nominated Democratic candidate for the office in question, was duly certified by the Secretary of State to the county clerk of Maries County. Two newspapers, the Maries County Gazette and the Belle Times, were designated as the papers to publish the lists of nominations for the various offices to be filled at the 1916 general election The list as published in the latter was correct. In the former
In his notice of contest, contestant asked that a commissioner be appointed, Hon. H. E. Alexander of Cape Girardeau was appointed and took the testimony of many witnesses. The net result of this was evidence that practically all the 1311 voters who cast the ballots in question intended to vote and believed they were voting for the Democratic nominee for Judge of the Springfield Court of Appeals. Our commissioner so finds from the evidence. He concluded that the 1311 ballots should be counted for contestant.
Among other things, the parties hereto stipulated the following:
“Tenth. That the name of Arch A. Johnson was printed on the Democratic ticket in Maries County as if he were the Democratic nominee for Judge of the Springfield Court of Appeals, and that all of the Democratic tickets used at the various precincts, and at all the precincts in Maries County, at the general election on November 7, 1916, contained the name of Arch A. Johnson printed thereon as if he were such nominee ....
“Thirteenth. That there were 1311 ballots cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Johnson’s name thereon as if he were the*447 Democratic nominee for Judge of the Springfield Court of Appeals.
“Fifteenth. That there were 111 ballots cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson as if he were the Democratic nominee for Judge of the Springfield Court of Appeals by legally qualified voters, whose evidence has not been taken, and who have not been stipulated upon.”
Contestee’s answer contains the following:
“Contestee admits and avers that by some mistake or inadvertence, unknown to contestee, the name of Arch A. Johnson as a candidate for Judge of the Springfield Court of Appeals was printed on the Democratic ballots that were provided for the use of voters in said Maries County and that said ballots were used by said voters and that there were cast for said office in said Maries County at said election for contestant one vote, for contestee seven hundred and twenty-one votes, and for Arch A. Johnson thirteen hundred eleven votes.”
On the argument it was further stipulated that the persons easting the 1311 votes counted for Arch A. Johnson, voted the regular Democratic ticket.
Under section 5855, Revised Statutes 1909, all nominations for elective offices, with certain exceptions with which we are not concerned in this case, must be made by primary election held under article 4, chapter 43, Revised Statutes 1909. Section 5877 provides that the party primary nominees for offices shall be the- candidates of that party for such offices and their names as such candidates shall be placed on the official ballot at the following election. Section 5878 requires the Secretary of State to certify and publish the primary results as to state and district offices, and to certify to the chairman- of each party’s state committee so much of the certificate as relates to the nominees of the party of whose committee such chairman is the head. Section 5879 requires the Secretary of State to certify to the county clerk of each county the nominees for each state and district office for which the voters of the county are entitled to vote.
Section 5851 requires the county clerk, prior to the election, to publish ‘ ‘the nominations, to office certified to him by the Secretary of State and also those filed in his office.” The lists so published are required by section 5852 to be arranged in the order and form in which they will be printed upon the ballot.
Contestant was the regular nominee of his party. The law required his name to be printed upon the party ballot as the party nominee and candidate. Instead, through mistake, the name of Arch A. Johnson was printed thereon as such nominee and candidate. The party ballots bearing Johnson’s name so printed were delivered by the judges to the voters, and, it ,is stipulated, 1311 such ballots were cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Jolvnson’s name thereon as if he were the Democratic nominee for Judge of the Springfield Court of Appeals. It is further stipulated these ballots were cast by persons who voted the regular Democratic ticket. The answer avers that 1311 of these ballots with Arch A. Johnson’s name printed thereon as candidate for Judge of the Springfield Court of Appeals were cast by the voters of Maries County, and avers that Johnson received 1311 such votes. The stipulation and this averment mean that 1311 voters who selected the Democratic ballot as the one they desired to vote cast such ballots with the name of Arch A. Johnson printed thereon in the space set aside for the name of the Democratic nominee for the Springfield Court of Appeals, and that these ballots, when cast, bore in that space the printed name of Arch A. Johnson, and that no other name was printed or written in such space. The averment that Johnson “received” 1311 votes, coupled with the stipulations, makes-this clear beyond doubt.
It is obvious the ballots canndt be counted for Johnson. The law requires the names of party nominees,
In such circumstances and under such statutory provisions we are of opinion that a party ballot, voted and cast as printed, must be held conclusively to show the the voter’s intent to vote for the nominee of that party and that it must be counted, with respect to each office, for the party nominee therefor regardless of what name appears in the particular space devoted to that office. In this ease the agreed facts and statutes are sufficient without any consideration of the oral evidence offered.-
There are no precedents. No similar case has heretofore engaged the attention of any court so far as industry of counsel or our own investigation has disclosed. This court is, however, committed, as are all courts, to the principle that the disfranchisement of voters is not favored. We will not give to any law such a construction “as would permit the disfranchisement of large bodies of voters because of an error of a single official” in any
Something is said concerning the result and effect of the holding that the 1311 votes in question shall be counted-for contestant. Perhaps there is no impropriety in pointing out the effect of a contrary holding. ' The first result of such a holding would be to disfranchise the voters of one party in an entire county. The second result would be the establishment of a precedent whereby error might disfranchise the entire State and behind which, possibly, fraud might intrench itself and intentionally defeat thé will of the voters of the State. Under such a ruling it is within possibilities that error or fraud in printing the ballots in Missouri might result in changing the result even in .a national election. That the Legislature intended to leave open the way for such wholesale defeat of the popular will is not a conclusion we are willing to announce unless there -is no other reasonable construction to be given the statutes.
It is suggested the Constitution provides all elections shall be by ballot and that this precludes counting the votes for contestant. This constitutional provision is intended principally to secure secrecy. [Ex Parte Arnold, 128 Mo. 260.] It does not prohibit the Legislature from providing methods of voting* in which names of regular nominees need not appear at all upon the ticket. The real requisites are that the ballot shall preserve secrecy and show the voter’s choice. [In re Mathiason Mfg. Co., 122 Mo. App. l. c. 444.] Any manner of voting which shows the voter’s choice and preserves secrecy is “voting by ballot.” Within the constitutional provision voting jnachines meet a constitutional requirement such as ours. [Lynch v. Malley, 215 Ill. l. c. 580; U. S. Standard Voting Machine Co. v. Hobson, 132 Iowa, 38; City of Detroit v. Election Inspectors, 139 Mich. 548, and cases cited; Elwell v. Comstock, 99 Minn. 261.] In this
The statutory provision that ballots other than those the county clerk prepares and causes to be printed shall not be cast or counted means, simply, that no ballot shall be cast or counted except those officially prepared. It does not mean if any error occurs in printing such ballot the ballot shall be thrown out.
It is also urged that the statute provides a method for correcting errors in printed ballots and that this is preclusive. This question is not involved in this case. Our construction of the ballot cast is such that, as cast, it must be counted for contestant; that as cast it shows an intent to vote for the nominee, i. e. contestant. In such circumstances, whether the ballot might, under the statute, have been corrected at the instance of contestant or any elector of Maries County is not an inquiry necessary to be made. If the official ballot means what we hold it means, then no correction was necessary to require these 1311 ballots to be counted for contestant and to prevent the disfranchisement of the 1311 voters of Maries County who east those ballots. The cases cited on this point decide nothing out of harmony with this conclusion.
It results that the 1311 ballots in question must be added to the 86929 conceded to have been correctly counted for contestant. This makes his total vote 88240, giving him a majority of 248 and entitling him to the office. It is ordered, therefore, that contestee be ousted from the office of Judge of the Springfield Court of Appeals and that John H. Bradley,, contestant herein, be installed in said office as judge of said court for the full term for
Concurrence Opinion
(concurring) — I. I concur in all that is said by my learned brother writing for the majority. I agree with him that under the statutes of this State the .1311 votes in dispute can not be counted for Johnson. This, because his name does not get upon the voters’ ballot in either one of the two ways by which the law authorizes its presence upon the ballot. To be specific, before his- name can be printed upon the ballot, he must haye been the Democratic nominee for the office. He was not such nominee. No authority in law for his name there in print, can be found. The only way it could have legally gotten on the ticket of any voter, was by the voter writing it in the space left under the caption and under the name of the nominee. The admissions show that this did not happen. So we also agree to the ruling that under the admissions in the pleadings and otherwise, it is not necessary to go to the oral evidence from the voters'to determine the intent of the voters. But whilst I so agree, I do not want to be understood as agreeing to contestee’s contention that this court is precluded from going to the voter’s evidence as to his intentions under the facts of this case. I know that it has been ruled that the voter, by oral evidence, can not impeach his ballot, but no such ruling has ever been made in a case having the facts of this record. I maintain that under the facts of this record evidence of the voter as to his intent was competent, and after a slight mention of another suggestion in the ease, I shall present my views upon the competency of the oral evidence of the voter as to his intent in casting these ballots. •
II. Suggestion has been made, and whether it came from court or counsel is immaterial, to the effect that the whole election might be declared void. To my mind there is no substance in this view of the case. In the first place the pleadings in. this (an original proceeding) would not authorize such a judgment, if in fact and law, this court could enter such a judgment.
This is a contested election case. All such cases proceed upon the theory that there has been a valid election, but that, by reason of some happenings in. the course of a valid election, things have occurred by which the contestant has been deprived of votes to which he was entitled, or contestee has been given votes to which he was not entitled. A contested election case is brought upon the theory that someone has been legally elected, not on the theory that there has been no election at all. In fact, the contestant must aver that he was legally elected at the election in question, and therefore, by his petition, admits that a legally authorized election has been held'. His only contention is, that by reason of alleged irregularities and wrongful acts in the course of a duly authorized election, he has not been given the office for which he ran, and to which he would b^ entitled if these irregularities and wrongful acts had not occurred. The pleadings govern the judgment which may be entered, in this an original proceeding or contest, and these pleadings will no£ ail^orize a judgment to the effect that there was no valid election and therefore no person was elected to the office. Such a judgment would be beyond the scope of the pleadings. Only by consent of the parties can a new election be ordered. [R. S. 1909, sec. 5930.] We have no such consent here. In this case these 1311 votes were either rightfully or wrongfully counted for Johnson, and the majority opinion is correct in saying that, under the provisions of our statutes, they were wrongfully counted for Johnson. If this be true, then they should either be counted for Bradley, the Democratic nominee, or not counted at all. If counted for Brad
ITT. To my mind, under our statutes, when the voter selects from the several ballots handed to him by the judges of election the ballot headed “Democratic Ticket,” and deposits that ballot, unscratched as to a given office, and returns unvoted the several other . , . , ,, . -, ballots given by the judges, there is a presumption that such voter intended to vote for the Democratic nominee, and said presumption continues until overthrown by evidence contra. In this case there is no evidence contra.
In addition to this, it is clear that such voters in the instant case did not intend to vote for Cox, because they returned unvoted the ticket with that name upon it. And it is also clear that such voter did not intend to vote for a person other than the Democratic nominee, because they wrote no name in the blank space upon their ballots. This, however, goes to the case without considering the evidence Sf the voters, and is aside upon that question.
A petition must be characterized by the nature of the things charged therein. The instant petition does not specifically charge fraud, but the facts stated therein make out a case of the rankest legal fraud. In the disposition of a case it makes no difference whether the facts pleaded make a case of actual fraud, or one of legal fraud. Fraud of either kind is sufficient. Thus in Gantt v. Brown, 238 Mo. l. c. 567, this court said:
“In this case the contestants charge fraud in the election — both actual fraud and what might be denominated legal fraud. The classification is immaterial, in cases of the character under consideration, because fraud is fraud, whether it be actual or legal.”
In the same case (238 Mo. l. c. 568) we further said:
■ “We hold further that when charges of fraud are made as above indicated the mode and measure of proof*457 should he as broad as tbe charges. Tbe best evidence should be available in tbe search for fraud, or in disproving tbe charges of fraud.’ ’
Tbe conceded facts in this case work a legal fraud, both on tbe contestant, Bradley, and tbe 1311 voters of Maries County, who thought they were voting for Bradley, when they cast their ballots, unless these voters and Mr. Bradley are protected by the presumption we have suggested, or are protected by tbe proof of bow these voters intended to vote. We concede if no fraud (actual or legal) is shown, that the voters should not be permitted to contradict tbe face of bis ballot, but this is not this case. If it is to be contended that our cases bolding that- a voter shall not be permitted to contradict bis ballot, by stating for whom be intended to vote, shall control here, under tbe facts of this case, then I say it is time to\ write anew tbe law. Fortunately those eases held in judgment no such facts as are in this record. Nor was tbe rule announced in them intended to apply to a situation, where more than half of tbe county’s voters have been disfranchised by a legal fraud. In tbe commonest cases tbe evidence takes a broad range upon questions of fraud, and no reason can be assigned as to why it should not take that range in a case affecting the very vitals of repubhcan government. If fraud, either actual or legal, can thwart tbe intent and will of tbe voters, elections should be abandoned. Tbe legal effect of saying that tbe intent of tbe voter cannot be shown, in this case, is to say, that although it were shown in this ease that tbe contestee bad unlawfully paid tbe clerk and tbe printer money to put out tbe Democratic ballots, in Maries County, with tbe name of Johnson, instead' of Bradley, thereon, tbe voter would be precluded from giving evidence as to bis intent to vote for Bradley. Tbe latter would be actual fraud, tbe record before us is legal fraud, and tbe result tbe same in each. In eases of fraud proof aliunde tbe ballots has been admitted, and admitted for tbe reason that to refuse to admit it would be to countenance fraud. Thus in Freeman v. Lazarus, 61 Ark. 247, tbe question was up as to tbe validity of an election on been.
Recognizing the rule (absent the charge of fraud, actual or legal) to the effect that a voter, by parol evidence may not contradict his ballot, yet such rule has no place in this case. Every fact charged in the petition at bar charges a legal fraud. The facts pleaded make a case of
Dissenting Opinion
(dissenting) — I dissent from the majority opinion. I cannot agree that the votes lawfully cast at a lawful election for one man may be counted for another, after the election, by the courts.
If that rule is approved, then election to office in this country does not depend upon the action of the voters in casting their ballots at the time of .the holding of a lawful election, but depends upon investigation after the election, whether certain voters would have voted for the contestant, if they had known that he had been nominated by a particular political party whose general ticket was used by them in preparing their ballots. To support this theory evidence would have to be taken .after the election was over, as to what the respective voters would have done under circumstances not present at the.election. This .was done in this case, and upon the results of that inquiry the contestant now asks that votes which were actually cast against him should be counted for him. In effect, that another election should now be held through the medium of testimony given in a contest suit, whereat, after a recanvass of the votes based upon an assumption of what the voters might have done, this court should adjudge a man to be elected to an office for which he was defeated by the plurality of the ballots actually cast at a regular election for the filling of that office.
To my mind such a contention is the height of unreason. Confessedly it is one to which no court has as yet lent its countenance. If it should now receive judicial
II. The construction sought to be forced by the majority opinion upon the statutes referring -to party ballots, would obviously defeat the voters’ freedom of choice, and in other vital respects would violate the fundamental principles of all free elections. .
III. As to the question of the acceptance of the office by the contestee under the circumstances, that is a matter left to his personal judgment, with which this court has nothing to do, in the absence of any showing of invalidity of the ballots cast in his favor or fraud in the -election. The sole question for this court to determine is the fact of the election or non-election of the person now seeking the office through this contest. There being no doubt that he did not receive a plurality of the lawful ballots cast ,at a lawful and closed election, his petition should be dismissed.
For these reasons I record my protest to the ruling in the majority opinion.
Dissenting Opinion
(dissenting) — While I agree witii most of what is said in the majority opinion, yet I dis
Conceding that all of the electors who voted for Judge Johnson thought and believed they were voting for the Democratic nominee, yet it by no mean's follows, as a necessary sequence, that all of them believed they were voting for Judge Bradley.
It must be conceded that even Democrats might scratch a nominee of their party and vote for some other Democrat for that office; in fact, that is often done; and the Legislature so recognizing the fact, has provided by statute that in making out the official ballots, a blank space shall be left thereon after the name of each nominee in order that the. electors, if they deem proper, may scratch a nominee and write therein the name of some other person, and thereby vote for such other person for said office.
Moreover, this record shows, as a matter of fact, that the thirteen hundred and eleven votes cast for Judge Johnson were not in fact cast for Judge Bradley, and we might very well assume that some of them who voted for Judge Johnson would not have voted for Judge Bradley, even though they were Democrats. In other words it frequently occurs that some one or more of the nominees may not poll his or their party’s full strength. The history of this State is full of instances where one or more nominees of a party have been defeated at the polls, while the rest of the ticket has been elected. This occurs in one of three ways: First, by some of the electors not voting for the nominee of their party; second, by voting for the nominee of some other party; or, third, by voting for an independent candidate. I mention this for the purpose of showing that a nominátion by the dominant party of a county, district or state is not equivalent to an election; if that were true, then what would be the use of holding the election? So the point is: it does not necessarily follow that because Judge Bradley was the Democratic nominee of his party for Judge of the
The doctrine announced in this case opens wide the door to fraud and corruption in elections; it authorizes the elector, after he has cast his vote, to testify for whom he voted, and thereby perhaps change his vote, a most dangerous rule; also under this rule a nominee who is unpopular in a city or county might fraudulently and not by mistake, as was done in this case, have substituted on the ballot the name of some other person instead of his own, who was popular and strong, and let the electors vote for him, and then count the ballots for the nominee.
I therefore dissent.
When writing this dissent I was laboring under the impression that the oral testimony mentioned in the majority opinion constituted a part of the concrete case stated ; but upon my' attention having been specially called thereto I find I was in error; but since Brother Graves in his concurring opinion considers such evidence admissible I will not change the dissent.
Believing there was no valid election held, I therefore dissent.