97 Mo. 311 | Mo. | 1888
This is an election contest between Caleb Grumm and Joel D. Hubbard, who were candidates for the office of county clerk of Morgan county at the election held on the second of November, 1886. The official count gave Hubbard 1103 and G-umm 1096 votes, a majority of seven for Hubbard. After Glumm gave notice of contest, Hubbard gave a like notice, and the circuit court gave judgment for Hubbard, the contestee.
1. Q-umm, the contestant, objected to the introduction of any evidence in support of a part of contestee’s notice. The court did not pass upon the question at the time, but took it under advisement until the close of the case, and the record does not show that any ruling was then made upon the objection. The objection, however, was not well taken. The part of the notice, to which the objection was made, states that at a designated precinct twelve persons, giving their
Section 5493, Revised Statutes, provides: “ Said ballot shall not bear upon it any device whatever, nor shall there be any writing or printing thereon, except the names of persons, and the designations of the offices to be filled, leaving a margin on either side of the printed matter for substituting names. Each ballot may bear a plain written or printed caption thereon, expressing its political character, but on all such ballots the caption or head-lines shall not, in any manner, be designed to mislead the voter as to the name or names thereunder. Any ballot not conforming to the provisions of this chapter shall be considered fraudulent, and the same shall not be counted.” By section 5528, “the notice shall specify the grounds upon which the contestant intends to rely, and, if any objection be made to the qualifications of any voters, the names of such voters and the objections shall be stated therein.” Since this ground of contest does not go to the qualifications of the voters, it was not necessary to set out their names ; it was sufficient to state the grounds of the contest.
The objection to the sufficiency of the notice is, that it does not appear from the facts stated that the ballots were fraudulent. It is not contended that the notice should set out the words which it is claimed render the ballots fraudulent, but it is insisted that there is not enough stated to show that the ballots were
We, however, agree with the contestant that the proof, offered by the contestee, furnished no reason for excluding the ballots. It shows that, prior to the election, the county court made an order submitting to the electors the question whether the- stock law should be put in force. Many persons wrote upon their ballots words expressing their vote for or against the law, and these are the words which the contestee insists rendered the ballots fraudulent. Had the order of the county
But the contestee insists that the order of the county court was void, because it was made upon the petition of householders .of five or six congressional townships, and not upon the petition of householders of five or more municipal townships. Let it be conceded that the act of ' March 31, 1885 (Acts of 1885, p. 29 ), when it speaks of five or more townships, means municipal and not congressional townships, and that the order of the county court was a void order ; still it does not follow that these ballots were fraudulent. To say that they were fraudulent is to make section 5493 a snare to entrap the unsuspecting voter; that is not its purpose. The order for the vote was made by the court having power to make it, on a proper petition, and so far as the balance of the ticket before the electors is concerned, it is wholly immaterial whether the order was void or valid. The voter was not, at the peril of losing his entire vote, called upon to investigate the validity of the order.
2. After this contest had been commenced each party, at different dates, procured a writ under, the act of March 27, 1883 (Acts of 1883, p. 91) commanding the clerk of the county court to open and re-count the ballots. Both of these re-counts gave Hubbard a majority of twelve. This increase is due to the fact that in the re-counts one vote for “ J. D. Huba,” one for “ J. D. Hubba,” one for “Huber,” one for “ J. D. Hub” and one for “D. Huber” were counted for contestee. Effect should be given to the will of the electors, and it is now generally agreed that the circumstances surrounding the election may be given in evidence, on an election contest, to explain ambiguities in the ballots. McCrary on Elections, sec. 396 ; Cooley on Const. Lim. 611; 6 Am.
3. Each party to this contest insists that the other received a large number of votes which should be excluded, because the persons casting them were not citizens of the United States, and had not declared their intentions to become citizens not less than one nor more than five years before the election in question. In looking at these questions of fact, it is to be remembered that this election was held by duly appointed officers who received and counted the votes to which objection is now made. The presumption is, that the votes were legal and it devolves upon the party who asserts their invalidity to show that they are illegal. It is not sufficient proof of the invalidity of a vote to show that the person who cast it is of foreign birth, nor is it sufficient to show that he made declaration of his intention to become a citizen of the United States at a date more ,|han five years before the date of the election in question. The presumption of innocence is not overcome by such proof, without more.
Again, the minor children of aliens, though born out of the United States, if dwelling within the United States at the time of the naturalization of the parents, become citizens by virtue of the naturalization of the parents. State ex rel. v. Andriano, 92 Mo. 71. The record discloses a case where a widow and her son, both of foreign birth, came to the United States ; and while the son was yet a minor, the mother married a citizen of
Applying these rules to the evidence and the admissions made by the parties on the one side and the other, it appears that Hubbard received twenty-eight votes cast by persons who were not qualified voters by reason of alienage, and Gumm received nine such illegal votes. Hubbard received at least one and Gumm seven other votes which must be excluded, because the persons casting them were disqualified, either by reason of minority, or because not residents of the state one year, and of the county for sixty days preceding the election, or because they did not vote in the township where they resided. In the foregoing estimate of illegal votes cast for Gumm is included one vote of one of the judges of the election who did not cast it until long after the polls had been closed. The polls, when closed, are closed to the judges as well as to other persons.
4. The result of the foregoing consideration is that Gumm has a majority of one. But there are a dozen or more other votes to which objections are made on the ground of minority, want of citizenship, want of sufficient residence in the state or county; and the evidence is such that the court might well have found for either party. It is not the province of this court to determine disputed or doubtful questions of fact in these contested election cases any more than in other actions at law. Turner v. Drake, 71 Mo. 285. There are no specific findings, but simply a general finding for contestee. No