244 Mo. 329 | Mo. | 1912
Lead Opinion
At the general election in November, 1910, Howard A. Gass was the Democratic and William P; Evans the Republican candidate for the State office of Superintendent of Public Schools. On the face of the returns, Mr. Evans was elected. On his receiving the certificate of election and the'commission to take office for four years, Mr. Gass filed his petition to contest his election in this court on December 17, 1910, after giving due notice. On that day Mr. Evans appeared and filed his answer. At sundry times from that day to this, motions (to be presently disposed of) were filed, directed to one or another phase of the case. At a certain time our writ issued to the board of .election commissioners of the city of St. Louis, commanding them to fix a day (within thirty) and proceed to open the ballots cast in' said city at said election, in the presence of con-
Thereupon contestant excepted to that report. Set down for a special hearing on June 17, 1912, the consolidated case on its merits and on motions was-submitted for final disposition — five judges sitting (Valliant, O. J., Lamm, Woodson, Graves and FerRISS, JJ.)
The facts warranting it, we take space and leave to say (and say it con amore) that we are beholden to distinguished counsel for the benefit of oral arguments and briefs unexceptionable in matter and taste. To hear and decide, not to praise, is the office of the judge. Peradventure, however, to commend counsel for putting away temptation to take on color and heat, when such temptation dogs the heels of cases of a political character, is to speak to a judicial purpose. The case bespoke, and received, a fine courage, to be tempered (as it was) with serenity and equipoise at the bar. So, it bespeaks it from a bench whose quick
Because briefs take a wide play, it will head towards brevity to treat propositions in our own order and way.
I. Of a bundle of motions.
(a) . Early in the litigation Mr. Seibel, county ■clerk of St. Louis county (commanded by our writ to recount the ballots in that county) filed a motion peremptorily challenging our jurisdiction; and on that ■and other grounds asking us to vacate or modify our order to him. Up to this moment that motion, slumbering, has been passed in silence by court and counsel. As to that we say: As Mr. Seibel is not a party nor does he appear by invitation or leave granted as “a friend of the 'court,” he is an out-and-out intermeddler and has no locus standi to intervene. Because of that fact, according to correct form, his motion is without legitimate function. So, in the evolution of the case, we have long since gone on beyond some of the points to which movent directs his motion. [Vide, Gantt v. Brown, 238 Mo. 560.] It is of little avail to do so vain and inutile a thing as to tread back in our tracks to dispose of moot questions. As to other points, they are raised by those entitled to raise them and deserve and have received attention.
The motion is stricken from the files to be consigned to the dustheap.
(b) . Early in the litigation counsel for contestee moved to have certain legal questions, raised by the pleadings, set down for oral argument. That mo-
It is stricken from the files.
(c) . On February 25, 1911, contestee filed a motion to dismiss, grounded on the theory that this court was without original jurisdiction to- hear and determine any election contest. As to that we say: That identical contention, carried forward as live matter in pleadings and briefs, was submitted in this and in the two companion cases, and has been ruled adversely to contestee, on full consideration of its constitutional bearings, in an opinion by Graves, J., in ■one of those companion cases, Gantt v. Brown, handed down at this delivery. "We stand by our deliverance in that case. Stare decisis.
The motion is overruled.
(d) . On July 12, 1911, contestee filed a motion in nature ancillary to the other, to dismiss. It was grounded on the notion that the allegations of contestant’s petition are too general, are merely fishing in character and only aimed at making a discovery, and because the action has not been prosecuted with due diligence — all to the wrong and injury of contestee, who complains he is serving in office without pay and is subject to the drain of expenditures of a grave character in the employment of counsel, etc. As to that we say: The orders of this court from time to time, sometimes by stipulation of counsel and again ■on showing made, whereby our commissioner’s time was extended, were either of right or of grace. In either event, they practically overruled that motion to some of its intents and purposes. What was thus •done in fact, hut impliedly, as we went along, maj
The motion is overruled.
With this clearing away of some propositions, ruled in companion eases, and the underbrush of subsidiary matter, main propositions remaining come into the clear.
II. Of two other propositions to he put out of the case.
(a). Here, as in companion cases, it is alleged-in the petition (and now argued in contestant’s brief) that each and every of the 143414 ballots cast at the election in the city of St. Louis in November, 1910, should be discarded in the count. This, because of an alleged vice common to all, to-wit, the absence of a registration number on the back of every ballot voted in that great city — a condition originating seventeen years gone and existing ever since in every election held there. It was based on a construction of complex and overlapping statutes involving , separate schemes of registration and voting in country districts and in cities differently classified by population (not without some obscurity and consequent difficulty in interpretation) hitherto universally acquiesced in by all political parties and candidates. If the contention be sound, then Mr. Gass is entitled to the office of Superintendent of Public Schools; for it stands admit- ’ ted that all St. Louis ballots were in that fix, and on such hypothesis Mr. Evans falls many thousand votes short of enough to elect him. If it be unsound, then it
The point is disallowed to contestant.
(b). After making in his petition a formidable aggregation of twenty or more averments amounting to fraud in the registration, in the appointment of election officers, in a false count, in the manipulation of ballots, in intimidation by an unlawful use of process, some of them covering the acts of voters, some the acts of registration officers, some the acts of judges and clerks in and about the performance of their duties at the polls in receiving and counting ballots, some to the scratching of ballots, some in the selection of judges and clerks, who (it is alleged) masqueraded as belonging to the Democratic party when they did not — all contrary to the law and to the right of the matter — contestant went on to allege, in effect, that Mr. Evans was the beneficiary of the fruits of such frauds,.and that when the apparent result was purged of fraud it would be found that contestant was elected. “Wherefore,” to quote the last clause of his petition, “contestant prays leave to produce his proof of the facts and charges aforesaid.”
It would be useless to encumber this opinion with a more detailed statement of the specific.ations of fraud and gross irregularities amounting to fraud set
(As our purpose is to deal with those averments in a block, we allow ourselves a foreword, viz.: there is a contention made in briefs relating to negro votes •cast at the November election of 1910, and to votes of aliens, which will receive separate attention. Hence what we have to say under this head does not appertain to those votes.)
Midway in the history of this case the question how to get at the proof of such of those averments as pertain to fraud in the ballot box and ballots, was considered by this court, with a view to instructing our commissioner how to proceed and how litigants might proceed in proving or disproving allegations of fraud in that regard. What we had to say in that behalf is said in our opinion on interlocutory questions certified here by our commissioner in the consolidated case, Gantt v. Brown, 238 Mo. 560. In that case it was ruled, in effect, that (ex debito justiciae) the secrecy of the ballot'should be kept inviolate up to the point where it became necessary to show the fact of fraud in the ballot box or ballots and no further; that fraud being hateful to the law there was no place in Missouri where it could take sanctuary from justice. Our judgment in that behalf was of such character that technical barriers, supposed to exist in the way, were burned away in the pursuit of fraud in an election case, always, of course, keeping the proof within the averments of the petition; that the accepted rules of law relating to the investigation of fraud in other cases were of such obstinate significance as to hold fast in an election contest case. Those rulings amounted to holding that, in conformity to his prayer, contestant was granted “leave to produce his proof of .the facts and charges aforesaid.” The door was opened wide to him (and he was invited) to go on and
Attending to the result of that long and searching investigation, we make these observations:
We have no call to go out of our way to pass encomiums on the fairness of that election, as one side seems to want ns to do, nor to go out of our way to stigmatize that election as unfair, as the other side seems to want us to do. Irregularities in detail are bound to occur in all registrations and elections where little time is allowed and a vast array of voters vote or register and a multiform aggregation of minute details are necessarily crowded into that little time. Courts recognize that condition as a natural one in election contests, and work out the right and wrong of the matter and the injury to one or another litigant by weighing the facts and at the same time giving heed to the letter and not losing sight of the spirit of the laws. Such irregularities were found as of course in the registration and election in question. Whether they were more or less than in other elections held in St; Louis we have no data here to compare and decide, therefore we have no judicial call or right to comdemn or approve by way of comparison. Nor are there any data here by wMch it can be determined that Mr. Grass suffered more by them than Mr. Evans. (Nihil habet forum ex scena.)
We content ourselves with ruling on the record before us. Attending to that, the very heart, the sum of the matter is this: Neither by the recount of the board of election commissioners of St. Louis certified here, nor by that certified here by the county clerk of St. Louis county, nor by the testimony, nor by the report and findings of our own commissioner, are the averments of contestant’s petition relating to fraud, and Ms consequent damage therefrom, estab
The sensible and sufficient rules to go by are: "What does not appear from admission or proof is taken by the judge as non-existent. In fraud he who alleges in court holds the burden of proof. Fraud or dole is not to be presumed. Honesty and good faith are persumed,’ absent proof to the contrary. So that it matters not that fraud will be followed relentlessly and its fruits snatched away by courts with a willing and ungloved hand. It must first be found to exist before it bears any fruit to be snatched away.
Giving heed to those precepts (and the premises all considered) this cause can not be determined in favor of contestant on the theory he was defrauded out of his election, as alleged in his petition.
Accordingly we so hold, and put fraud, as such, to one side.
Contestant maintains that the rise of 1100 negro votes were improperly cast and counted for Mr. Evans. Before disposing of that contention presently, a preliminary observation is due. Thus, by discarding those votes in certain hypotheses put by counsel in their brief and then by going on and taking from Mr. Evans’s vote, thus reduced, a certain number of other votes, the election of Mr. Gass, by a small plurality, is calculated. But in none of those hypotheses could Mr. Gass be declared elected unless those 1100 negro votes are first taken bodily from Mr. Evans’s count. It becomes apparent, then, that the key to the situation on contestant’s own theory is those negro votes. If they were properly allowed to Mr. Evans then all contestant’s hypotheses fail him. If they are to be discarded, then that fact does not elect Mr. Gass, unless other contentions obtruded are also ruled in his favor.
Becurring to those votes, the contention is not new in this court. Contra, it was made and pressed before our learned commissioner. We stress the fact that it was disposed of by him, after summing up the testimony pro and con, as follows: “My finding from all this testimony is that it falls short of showing that ány of these colored .voters did not in fact exist, or did not reside at the places from which they registered.”
But exception is taken to that finding and the significance of the matter warrants this court in going deeper into the facts. In doing so it may be assumed that in the registration of September, 1910, preparatory to the general election, negro voters (either real or simulated) representing those votes, registered, passed the subsequent verification, canvasses and scrutiny and voted for Mr. Evans in November, 1910. In the January following that election there was pending a “charter election” in the city of
No vital significance is attached by contestant’s counsel to striking off any of those fifteen thousand names, except negroes. We face, then, this proposition: Over 1100 negroes who registered in September and voted in November for Mr. Evans were struck off the lists in January, 1911. The record abounds with testimony showing an intense and all-pervading interest in a state-wide prohibition proposition voted, on in November and likely to bring out a full registry and vote. At that election there were over 2000 more votes polled than were cast for Governor in 1908 and the registration shows nearly 17,000 more names. For
This because:
The controlling maxims are; All things are presumed to be legitimately done, ■ until it is proved to the contrary; all things are presumed to be done solemnly. [Chlanda v. Transit Co., 213 Mo. l. c. 261; Coke, Litt. 6. b.] What ought to be done is easily presumed. Those maxims evidence a rule of convenient public policy universally applied and without _ which great distress would spring in the affairs of men. They abide until facts proved to the contrary make them take flight. They apply with peculiar force to official acts. [Hartwell v. Parks, 240 Mo. 537.]
The full force of those maxims is due here. By them the election officers, the judges and clerks, are presumed to have done their duty in the registration for the general election in 1910 in registering’ voters. They are presumed to have done their duty in sifting and purging the lists before that election. They are presumed to have done their duty at the election itself in receiving • votes. Subsequently when preparatory to a new election they purged the lists, the same presumption arises. If these officers in January purged these lists, not with a view to a new election nor under the commands of the statute, but because of wrongs they were conscious had been committed in the former registration and thus their last act was but setting in judgment on their former act, a situation would arise different
We ought not to leave the subject without pointing out that the vote of a voter is not impugned by the mere fact that his name is stricken from a precinct list on a recanvass after an election. He may have moved (and negroes are shown to be prone to do that often in St. Louis)-, he may have died in the interim. So, the recanvassing officers may have inadvertently missed him. So, he may not get his verification notice when mailed. So, if he did get it, he may not care to take the time or go to the bother of reregistering. Through interest or the lack of it the registration.of voters notoriously swells and ebbs at spells. All these elements, and more, would have to be sharply reckoned with before it could be held as a matter of law that striking a voter from the lists impugns his vote cast in an election held two months before the fact. In this case contestee, not resting alone on friendly presumptions, took up the cudgels and went on and put in proof tending to explain the striking off of a great many of those negroes in a way to take the edge from the insistence that they were not tona fide voters. [Vide, our commissioner’s report: “Con
That they registered from a congested negro quarter as appears from the testimony avails nothing to the point. The negro race is not only markedly sociable and gregarious, but courts, assuming not to be more ignorant than the rest of mankind but to know what every one else knows, will take judicial notice that imperious prevailing social conditions irresistibly drive negroes to herd together. As to them the saying of old Bobert Burton is brought to pass, viz., ‘“Birds of a feather gather together.” [Anat. Mel. E. Claxton’s Ed., p. 429.] That some of the houses from which some of them registered were “lodging, rooming or boarding houses,” as found by our commissioner, or are disreputable, as argued by contestant, avails nothing to the point in and of itself. If the fact is as argued it is regrettable. But may we try an election contest on the cynical adage: Give a dog a bad name, and then — hang him. Exconvicts, unpardoned, may be disfranchised, but up to this time technical or actual sexual morality is not made a statutory test of a voter by the Missouri lawmaker. When that day comes, if ever, there will be fine grinding in the mill, but no matter about that. As the law now stands we do not understand it would avail
The point is ruled against contestant.
III. Of the votes of certain aliens, and herein of scratched votes.
(a). It is contended by contestant that certain foreign born citizens, voting- at that election for contestee, were either naturalized by some court without jurisdiction, or had voted on first papers too old, or the registration books contained information showing they were not entitled to vote for this, that or the other reason.' Under the facts of this record to analyze contentions made under this head and determine them would be utterly vain and futile. This, because: Oontestee, as a counterstroke, raises the same issues on about the same number of foreign voters, who cast their votes' for contestant. Our commissioner patiently collated and classified the facts relating to such votes, on both sides and set down the number of votes affected in each class by itself with peculiar facts relied on to vitiate the.vote. Of course, as was proper, in order to make his classifications fit for comparison one with the other he used the same classification in votes challenged by both contestant and contestee. Contestant does not put his finger on any appreciable error or looseness in the commissioner’s classification or in the number of votes said to be affected under each group, but adopts the plan of making a different classification on his side than he does on his opponent’s. Why is somewhat dark. As to that we say: There is not enough of substance in the difference between the plan of the commissioner and that of contestant to justify bothering with determining which is the better of the two for the ends in view in both. Summed up, the gist of the matter is this: Under either plan, if the one or the other claim of contestant were allowed, only to be offset (as
(b). The testimony shows that here and there, sporadically, in all the precincts in St. Louis, Mr. Glass’s name was struck off of some Democratic ballots by a single stroke of a pencil and no name written in. The same testimony shows a like condition on Republican ballots where Mr. Evans’s name was scratched similarly. The same condition exists in companion cases, only to a greater extent. A sinister conclusion is drawn from those scratches by learned counsel, arguendo, and if it be allowed as just, then, Mr. Evans’s plurality of 2000 or so over Mr. Grass is reduced by a very few votes.
In this view of it the question might be ruled as in paragraph “a” under this head. But we allow ourselves these further observations. If blocks of ballots or consecutive ballots, to a number challenging attention, were marked by a scratch of this sort, or if it were shown that the same pencil was used in the scratches, or that the phenomenon occurred largely with one set of election officers, or in one precinct (when the vote was on a State officer), or if there were any other indications pointing to a motive or to a common or preconceived design to commit the wrong of an unauthorized erasure, it would be well worth looking into. But where, as here, there are no facts of that sort, but the scratches occur sporadically and scattered throughout the entire city, affecting both parties alike, we can allow no sinister significance to them.
Counsel argue at our bar that a voter, intending to scratch a name and write in no other, would naturally not use only a single stroke of a pencil, but would
To illustrate: There has been now and then an ingenious conceit indulged in damage suits that appellate courts should know judicially how a woman would fall and light under given circumstances in a street car accident, or where her center of gravity would be. Those amusing speculations on natural philosophy have been gently put to one side as beyond the purview of the doctrine of judicial notice. [Flaherty v. Transit Co., 207 Mo. l. c. 326-7; vide, remarks of Gary, J., in Chicago Ry. Co. v. Yancey, 33 Ill. App. 94.] The matter being no little related to the question up, we apply the same rule.
The point is not allowed to contestant.
IV. Of the failure to_ write “yes” or “no” in the column headed: “Qualified Voter.”
The registration books in use in St. Louis have a column headed “Qualified Voter.”. The scheme of registration involves two registers, one kept by one clerk and one by another and both are originals. Our commissioner reported, inter alia, .as follows:
*349 “Frequently one of the books, in the column under the caption, ‘Qualified Voter,’ contains entries on every line, such as ‘Yes,’ or some mark indicating ‘Yes,’ while the same column in the other, or duplicate book, will be blank throughout. • It is shown that there are 29,427 names on the registration books as to whom there is no entry in the columns under the caption ‘Qualified Voter.’ ”
As we read the testimony those names were got at by counting from only one set of the duplicate books. But that is immaterial, in view of what follows. At the threshold of the subject lies this large and guiding proposition, which should never be lost sight of from end to end of the discussion, namely: If by error or accident at the outset a name is written on the books, which, in the further course of the registration investigation it turns out is not that of a voter, that name should be erased instcmter and got rid of once for all. Such is the law and such was the practice as shown by the testimony.
Mindful of that, as presently seen, it is not contended by contestant’s counsel that a failure to fill out that column, or to write “yes” when by» the facts disclosed by the registration “no” belonged there, or “no” when by the same facts “yes” should have been written, would kill a cast ballot on a recount. To illustrate: A citizen about to register gives in his residence, name, nativity, color, age in years, occupation and date of application to be registered. The facts so given in are written down in columns with appropriate heading (vide, R. S. 1909, secs. 6198 and 6199) and those facts show him to be native born, of full age and a resident of his precinct in St. Louis for the required time to gain a residence, and yet the clerk, without striking off the name, writes “no” in the column headed “Qualified Voter,” despite the patent fact that all the facts following the name in all the columns point only one way, viz., that he was qualified, or (as
So, there is much learning and controversy in the courts on the question whether this or that voting or registering regulation is mandatory or only directory. It would serve no useful purpose to be drawn into that wide field of discussion under this head. It is not in this case under this head and should not be lugged in; for no one would have the hardihood to say, until the lawmaker writes it down in terms open to no other construction, that a court should hold that a mere clerk, who through inadvertence or misapprehension, wrote “no” in that column when the facts before him called out for “yes,” or “yes” when he should have written “no,” or nothing when he should have written something, would thereby either enfranchise an illegal voter, or disfranchise an honest one, destroying his ballot on a recount when once cast and counted by election judges. That would be a drastic holding at one unhappy and unreasoned push opening a new
We do counsel for contestant simple justice by saying that although they make something of the fact that in one set of registration books nearly 30,000 names have no entry opposite in that column, yet they do not contend that lapse, in and of itself, vitiates the vote of registered and honest voters. Such would be a two-edged sword cutting to the bone.both ways in this case. Their object in introducing that line of testimony (as is shown in the commissioner’s hearing and by the train of their brief) is indicated by an excerpt from the record stating their position, thus: “I must state,” said contestant’s counsel, “that the purpose of this is not to disqualify any voter but to show the manner in which the election officers discharged their duty. . . . The evidence is not offered for the purpose of disqualifying the individual whose name appears, but for the purpose of showing the manner in which the election officers conducted or transacted the business the law imposed upon them, and it is only for that purpose.”
It will thus be seen that the contention is in the nature of a prelude or by way of inducement leading up to the ultimate and vital issue of an actual wrong and fraud edging its way into the ballot box by slipshod registration; and to be told, if at all, in the story of the ballots themselves when compared critically with the lists, examined front and back and held in judgment in this contest, together with the qualification of any challenged voter — a matter heretofore ruled against contestant on the facts in a former paragraph. The word “yes” or the word “no” might
We have no call at this time to discuss the legal significance of the certificate made by the election officers to the registration books as required by statute. [R. S. 1909, sec. 6209.] Nor the significance of the statutory phrase, “under the column ‘date of application,’ the month, day and year when the applicant presented himself and was adjudged a qualified voter in the election precinct.” [R. S. 1909, sec. 6198.] Nor to further .considér the prima facie presumption, heretofore mentioned (Gumm v. Hubbard, supra), of validity arising from the fact that the named person voted and his vote -as cast was counted. We pass those matters by and dispose of the question in hand by referring to the stated position of contestant’s counsel and by calling attention to the record fact that no voter opposite whose name the column was unfilled was shown to be an illegal one, though the case was open to such proof; and the further fact that the testimony does not show or attempt to show how many of the 30,000 voters voted for Mr. Grass or for Mr. Evans, hence the case could not break on the point were it held vital. (And that, as shown, we do not do.) Wherefore, the point, if point it is,' is ruled against contestant.
Y. Of the initials of judges on some ballots.
There is a question lodged here relating to certain ballots cast by registered voters and whose right to vote is not impugned, viz., the absence of the initials of judges on a few ballots. The question is: Should they be counted or rejected? Its determination one way or the other does not affect the result, but it ought to be decided because of the unfortunate state our decisions are in. This court is in duty
The question was up in the 45th General Assembly in the contest over the Lieutenant-Governorship between Mr. Painter and Mr. Gmelich, where in a report presumably prepared by Senator McDavid, a sound and veteran lawyer, and unanimously concurred in by his learned associates on the committee, the doctrine of Hehl v. Guion was applied by the committee and accepted by the General Assembly in deciding that contest. [House Journal, 45th General Assembly, p. 31, et seq.]
We reaffirm and stand by the doctrine of the Bowers and Hehl cases and overrule the McKay case. In doing so we are not to be taken as palliating or justifying a slovenly performance of official duty. There are remedies open and ample for non-performance of or misfeasance in official duties. So, if their official
Other questions are alluded to in briefs, but none of them are material, and we have already pursued the matter far.
From the views thus expressed, there can be but one just result announced, viz., that Mr. Evans is entitled to the office of Superintendent of Public Schools. Judgment for him is, therefore, now rendered.
Concurrence Opinion
CONCURRING OPINION.
I fully concur in the result reached in this case, and to all that is said in the opinion, except I believe that the statutes prescribing the duties of the Board of Election Commissioners of the city of St. Louis, regarding the registration of electors, is mandatory, as regards the qualified voters of that city.
The whole registration of the city is clearly placed under their supervision and control. [R. S. 1909, art. 15.]
They are thereby expressly empowered to investigate, hear evidence and to strike from the registration books all names improperly placed thereon by the precinct registrars, and to add thereto names of qualified voters whose names were improperly omitted or erased therefrom by the precinct registrars, as well as those authorized to be placed upon the registration books by the courts, etc.
“3rd. Separate printed lists, by precincts, showing names of qualified voters, alphabetically arranged, as they appear on the registry books; giving name, number of line in registry books and residence of such voter, at the time such registry books are delivered to the election commissioners by the precinct registrars at the close of registration.
“4th. Similar separate printed supplementary lists, by precincts, of names added as qualified voters to the registry books by precinct registrars.
“5th. Also similar supplementary lists, by precincts, of names erased from the registry books by precinct registrars.
“6th. Also similar printed supplemental lists, by precincts, of voters added, restored or erased by the board of election commissioners.
“7th. Also similar printed supplemental lists, by precincts, of voters added or restored by the court.
“8th. Also similar printed supplemental lists, by precincts, or voters added by the election commissioners or the courts, and whose names do not appear on the regular registration lists.”
The board, by this section, is given express authority to pass upon and adjudicate whether or not a person is, or is not, a qualified voter, and that section of the statute in express terms provides that the board shall state the “names of qualified voters,” as well as the facts upon which that finding is predicated.
If the registration books show that a party is in fact a qualified voter, but the board through error or fraud should find to the contrary, the courts entertain ample power, by the mandamus or other appropriate original writ, to compel it to so state that fact or its judgment.
"While the finding of the board, that a person was a qualified voter, might not be controlling, and doubt