Donnell v. Lee

101 Mo. App. 191 | Mo. Ct. App. | 1902

BLAND, P. J.

1. It is not in the province of an appellate court to determine disputes in doubtful questions of fact in contested election cases. Turner v. Drake, 71 Mo. 285; Gunn v. Hubbard, 97 Mo. 311. But it will, as in a law case, adopt the findings of the trier or triers of the issues of fact when there is any substantial evidence in support. There is substantial evidence in the record to support each and every special finding of fact made by tbe learned circuit judge, and these findings will not be disturbed by us.

2. There are two questions of law presented by the record that are discussed in the briefs and arguments of counsel. One is, may a ballot, cast at an election in a city that comes under the registration act, be counted, upon which the registration number of the person casting the ballot was not indorsed? If it may not, then by the admitted facts the contestant must fail for the reason that in the Third ward, where he received forty-three votes more than the contestee, none of the ballots were marked with the registration number of the voter. The other question is, was it within the power of the circuit court to require the city clerk to produce the ballots alleged by contestee to have been fraudulently changed after they had been voted, and to make a record of them and of the persons who voted them and for whom they had actually voted?

The first question depends upon whether or not the mandatory words of section 6995, Revised Statutes 1899, requiring the current number and registration number of the voter to be indorsed upon each ballot, is in force in cities of twenty-five thousand and under one hundred thousand inhabitants, as the city of Springfield is a. city of this class. In respect to elections in this class of cities, article 7, chapter 102, Revised Statutes 1899, governs specially.

Section 7210, of the article, provides that, “All elections in such city shall be conducted in all respects as provided in the article, and subject to all the provisions of the Revised Statutes entitled ‘Elections,’ so far as the same do not conflict with this article.”

Section 6995, article 1, chapter 102, entitled “Elections,” provides that whenever a registration is required by law, in addition to the current number, the registration number of the voter shall be indorsed on his ballot, and that no ballot not so numbered shall be counted. The form of the poll book prescribed by seetion 7197, article 7, has a blank space for the registration number of the voter and for the current number of Ms vote.

Section 7210, supra, reads into article 7, chapter 102, the provisions of section 6995, of article 1, in the same chapter requiring the registration number of the voter to be indorsed on his ballot. The ballots cast in the Third ward should therefore be excluded from the count unless the mandatory words of section 6995 are taken out by the Act of 1891, passed after the enactment of section 6995. The Act of 1891 repeals twelve sections of article 3, chapter 60, Revised Statutes 1889, and enacts twelve new sections in lieu thereof, and a new section extending the provisions of the act as amended to all election precincts in the State, thus extending the Australian ballot system to all parts of the State. The sections of article 3, chapter 60, Revised Statutes 1889,' not repealed but amended by the Act of 1891, are grouped with the Act of 1891 in article 4, chapter 102, Revised Statutes 1899.

Section 6995, supra, is the same as section 4672, article 1, chapter 60, Revised Statutes 1889, and was not in terms repealed or amended by the Act of 1891, and should be held to be in force unless repealed by section 13, of the Act of 1891, which in terms repeals all acts or parts of acts inconsistent with it.

Section 4785, Revised Statutes 1889, provides that “no judge of election shall deposit any ballot upon which the names or initials of-two of the judges as here-inbefore provided for does not appear.” The provision referred to is contained in section 4780 of the article which requires that “the two judges of the election having charge of the ballots shall write their names or initials upon the back of the ballot, within two inches of the top thereof.”

Section 4785 was amended by the Act of 1891 so as to read as follows: “Every ballot shall be numbered in the order in which it shall be received. No judge of election shall deposit any ballot npon which the names or initials of the judges, as hereinbefore provided for, does not appear.” The amendment is merely to require the ballot to be numbered. Before the amendment the law required the ballots to be numbered (see. 4672, R. S. 1889); after amendment they were required to be numbered by two statutes, to-wit, by section 4672, article 1, chapter 60, and by section 4785, of article 3, of the same chapter as amended by the Acts of 1891. .And, of course, they can stand together in so far as they require the ballots to be numbered consecutively.

In 1897 the Legislature repealed section 4780, Revised Statutes 1889, and enacted a new section in lieu thereof (now sec. 7104, R. S. 1899) which reads as follows:

“On any day of election of public officers in any election district, each qualified elector shall be entitled to receive from the judges of election one ballot of each political party voted for at said election. It shall be the duty of such judges of election to deliver such ballots to the elector. Before delivering any ballots to the electors the two judges of election having charge of the ballots shall write their names or initials upon the back of the ballots, with ink or indelible pencil, and no other writing shall be on the back of the ballot, except the number of the ballot voted.”

This section applies only to an election of public officers and does not control in the election of a city officer, who is not a public officer, within the meaning of the section, as was decided by the Supreme Court by its order transferring this cause to this court.

The question then is, does section 11, of the Act of 1891, repeal so much of section 4785 (now sec. 6995, R. S. 1899) as requires the ballot to have indorsed upon it the registration number of the voter, where registration is required, in an election of city officers? It is a well-settled rule of construction that a former statute is .repealed by implication when a later statute covers the same subject-matter and was intended to be substituted for the former, and that where two statutes on the same subject are so inconsistent that both can not stand, the last in date supersedes the other. On the other hand, it is equally well settled that a later statute will not have the effect to repeal a former one by implication unless there is such repugnancy between them that both can not stand together or be reconciled. State ex rel. v. Spencer, 164 Mo. l. c. 48.

No registration of voters has ever been required in this State, outside of cities of twenty-five thousand inhabitants or over. The law of 1891 is a general law applicable to every precinct in the State. The law requiring the registration number of the voter as well as the current number of his vote to be indorsed upon his ballot, is special.

There are no words in the Act of 1891, that negative any of the mandatory provisions of section 6995 as applied to city elections. On the contrary the provisions of this section requiring that the current number of the voter be indorsed on his ballot is re-enacted by section 13, of the Act of 1891. The law is that a general affirmative statute does not repeal a prior and special one unless words negativing the continuance of the prior act are used, or the two are repugnant to each other, or are wholly irreconcilable, or the legislative intent to repeal the prior act is clearly manifested. City of St. Louis v. Ins. Co., 47 Mo. 146; City of St. Louis v. The Life Ass’n. of America, 53 Mo. 466; The St. Joseph & Iowa R’y. Co. v. Shambaugh, 106 Mo. 557; State ex rel. v. St. Joseph’s Convent of Mercy, 116 Mo. 575; State ex rel. v. School Board, 131 Mo. 505; Lindell Real Estate Co. v. Lindell, 142 Mo. 61; State ex inf. v. Hogan,. 163 Mo. 48.

The two acts are not inconsistent; they are not repugnant to each other, nor is there any intent on the part of the Legislature manifested by the Act of 1891, to repeal or modify the mandatory words of section 6995 when applied to city elections. The Act of 1891 does not directly or indirectly amend any of the sections of the article in which section 4672, Revised Statutes 1889 (now see. 6995, R. S. 1899) occurs, nor does it purport to legislate upon the whole subject of elections, but is merely an amendment of one article out of four devoted to that subject. The primary purpose of the amendment was to extend the Australian ballot system to every precinct in the State, to regulate the nomination of candidates for public office by political parties, and to provide some additional safeguards for conducting an election. There is certainly nowhere to be found in the amendment any purpose on the part of the Legislature to withdraw any safeguard that then existed, which purpose we would have to find before we could say that the mandatory words in section 6995, applied to an election for city officers, were abrogated by the amendment.

One of the purposes to be effectuated by indorsing the current number of the voter on his ballot and writing the corresponding number on the poll books opposite his name is, to connect the voter with his ballot in case of contest and to show for whom he voted. The purpose to be attained by writing the registration number of the voter on his ballot is, first, to show by the ballot itself that he was legally qualified to vote, and, second, to prevent more than one person voting on the same registration number. And it seems to us that it is as essential to a fair election and as necessary in case of contest that the registration number should be written on the ballot as that the voting number should be written thereon. We conclude that it was not in the mind of the Legislature, when the Act of 1891 was passed, to dispense with either of these requirements in an election for city officers. Hehl v. Guion, 155 Mo. l. c. 82.

3. Did the court err by making the order on the city clerk to produce the alleged forged ballots, etc., in court for inspection and examination? It is apparent from a reading of the evidence in respect to the alleged forgeries, heard by the court before making the order and from the subsequent proceedings, that-the court was in the dai'k as to whether or not any of the ballots had been altered. The count made by the city council gave Lee nine more votes that Donnell received; the count made by the clerk gave Donnell a plurality of thirty-seven over Lee. This discrepancy is not accounted for by the clerk in his return.

The ballots had been exposed after they came into the custody of the city clerk. A number of expert witnesses testified that, in their opinion, a number of the ballots had been changed by scratching out the name of Lee and writing in its stead the name of Donnell. An equal number of experts testified that these ballots furnished no evidence that any such changes had been made. The city clerk, who made the recount and was required to certify the facts as he found them, was in cloubt as to whether or not the changes had been made on the ballots; all that he was willing to say was that there was a similarity in the writing on the ballots alleged to have been tampered with. In this condition of the evidence the judge, as an honest and fair-minded man, could not decide the issues with any degree of satisfaction to himself. The evidence was in existence and near at hand by which the truth of the matter could be ascertained, and. the judge had it produced in open court and made a record of it and from it found out the facts as they were and on these facts awarded the office to the contestee. But the Supreme Court in the ease of State ex rel. v. Spencer, 164 Mo. 23, and again in State ex rel. v. Spencer, 166 Mo. 271, has construed the election law adversely to the rulings made by the circuit court, by holding that under no conditions can the ballots in a contested election case be produced in open court and be made a record of; that the authority of the court in this respect is exhausted when it grants the order -provided for by section 7044, Revised Statutes T899i Hence, it seems that the Legislature, according to the controlling construction of the law which binds this court, in its zeal to prevent A from finding out how 'B voted has also prohibited B from ever finding out for whom his vote was counted or whether it was counted at all; that it has placed the secrecy of the ballot above its integrity and has so framed the law that the “Indian,” after the ballots have reached their final custodian, may break or steal in and tomahawk them, and that then no inquest can be held on their corpses adequate to identify the marks of his hatchet.

By excluding from the count the ballots voted in. the Third ward, Lee has a clear plurality over Donnel], and for the reasons stated in the second paragraph of this opinion the judgment is affirmed.

Barclay, J., concurs; Goode, J., not sitting.