37 Mo. 330 | Mo. | 1866
delivered the opinion of the court.
The questions to be considered here are only such as arise upon demurrer to plaintiff’s petition. The chief objection was that the petition did not state the facts necessary to be shown in order to constitute the plaintiff a qualified and legal voter, and only conclusions of law. The petition did not
The constitution, ordinances, and statutes of the State, define the qualifications of voters at this election, and the several provisions on the subject show that facts must exist with regard to any person claiming a right to vote in the State, before he can be entitled to vote at any election. The evidence of these facts must be produced or the facts shown to the judges of the election, in the manner provided by law, and the judges are to be satisfied that the person offering to vote is a legal voter. (Laws of 1863, p. 17, § 4.) The cause of action here is founded on the right to vote, and the action is maintainable where that right has been wilfully, or maliciously, or wrongfully denied by the judges of election, on the ground that wherever there is a right, there is a remedy. But all the facts necessary to constitute that right must be stated in the petition, in order that the court may see, that as a matter of law, the right exists. It cannot be allowed to the party to judge, both for himself and the court, what facts shall be sufficient in law to entitle him to vote at any given election; nor to draw the conclusions of law for himself in his petition.
It is a familiar rule of pleading that the plaintiff must state in his petition all the facts, specifically, which would be necessary, if true, to entitle him to maintain his action, or to have the relief which he seeks. (Biddle v. Boyce, 13 Mo. 532.) And when the right to vote depends upon qualifications prescribed by statute, and it is provided that the judges shall be answerable only in certain specified cases, the plaintiff must state specifically all the facts necessary to bring his case with] in the statute; he must aver, not only in general terms, that he was a legal voter, but the facts which constitute him such
The complaint is, that the judges illegally, wilfully, maliciously, and corruptly threw out his vote after it had been received and deposited in the ballot-box, and refused to count the same with the other votes, and destroyed the same. The facts are not stated in such manner as to enable us to say, whether the transaction amounted to anything more or other than a mere refusal to receive and count his vote. Nor, if it distinctly appeared that the vote had been received, the name of the voter entered in the poll-books, the poll-books signed by the judges, and the ballot-box opened, and the votes counted and strung on a string, and sealed up in a package, and delivered to the clerk of the county court for safe keeping, as required by the statute (Laws of 1863, p. 17), or that any fraud had,been practised on the ballot-box at any stage of the proceedings, would it be necessary now to decide in what manner the judges, or the person so offending, would be held responsible, or to whom liable in damages, or otherwise. The gravamen of the complaint here seems to be, the refusal of the judges to receive and count the plain
The judgment is affirmed.