193 Mo. App. 306 | Mo. Ct. App. | 1915
Macon, a city of the third class, held a local option election on December 8, 1913. The proper officials canvassed the returns and found that 914 ballots were cast of which 475 were “against the sale of intoxicating liquor” and 439 were “for the sale of intoxicating liquor” giving to the side opposed to the sale thereof a majority of thirty-six.
■ Thereupon, Ed. T. Miles brought this proceeding to contest said election under that portion of section
The notice of contest, when filed in the circuit court of the county wherein such election was held, fills “the same office in the pleadings that the petition does in an ordinary suit, and service thereof upon the con“testee constitutes summons. [Hale v. Stimson, 198 Mo. 134.]
Contestant filed Ms notice on December 27, 1913, and the same was made returnable to the following April term of court. Said notice, as originally filed, attacked the election upon grounds which fall into two general and distinct groups or classes: First, the reception and counting, against the sale of liquor, of more than seventy-nine illegal ballots cast by that number of specified persons who were not qualified voters, and the rejection and refusal to count certain other legal ballots offered by certain named qualified voters who were for the sale of intoxicating liquors and who desired to vote, and would have voted, that way. Second, that no legal election was held in conformity to
The contestee appeared at the April term and filed a motion to strike out parts of said notice and also a motion to make more definite and certain. Thereupon contestant filed an amended notice, and then a second amended notice. The contestee filed a motion to make this last more definite and certain, which was sustained. Thereupon, contestant filed a third amended notice to which contestee demurred, and the court sustained it. Whereupon, contestant obtained leave of court at said April term to .file his fourth amended notice on or before September 1, 1914, in vacation. Said fourth amended notice was filed on said date and is the one on which contestant now stands.
In this last pleading, contestant abandoned, or omitted, all allegations which could be classed within the first group of grounds hereinabove stated, namely, the reception of illegal ballots and the refusal to accept legal votes. In lieu of these, contestant brought in a new class of grounds based upon the alleged invalidity of the petition upon which the election was called, the insufficiency of the steps taken by the city counsel in calling the election and in declaring, publishing and certifying to the result afterward. These matters were in no way related to any of the grounds of contest contained in the original notice, which was the only one filed within the twenty days required by law. Said new grounds were not only separate and distinct from the grounds of the original notice but they dealt with matters so wholly unrelated thereto that they could not be said to be germane to any of said original objections to the election. Contestee filed a motion to strike out these new grounds, which motion the trial court sustained. The court also struck out another portion of
After the court had acted upon contestee’s motion to strike out as above stated, contestee filed a motion to make the remainder of contestant’s notice more definite and certain. This the court overruled.
Contestee then demurred to said fourth amended notice and was sustained. Whereupon, contestant stood upon his notice and declined to plead further. Judgment was then entered on the demurrer dismissing the contest, and contestant appealed. ' He complains of the court’s action in striking out parts of his notice and in sustaining said demurrer.
So far as concerns the striking out of that portion of the fourth amended notice setting up new grounds of contest wholly unrelated to any of those filed within the time allowed for filing a contest, the court’s action was proper. Aside from the charge that the part so stricken out did not state facts but only alleged conclusions of law as to the invalidity of the petition calling for the election and the action of the city authorities in regard thereto, the part so stricken out attempted to raise new issues presenting an entirely new theory and requiring a new and different defense. In other words, it was in the nature of a departure from the cause of action or grounds alleged in the original notice. The object sought by contestant in bringing the suit originally was to either change the result of the election, or to have it annulled for certain specified reasons. The facts creating these grounds constituted, or went to make up, his cause of action. If now, after having begun his suit based upon a cause of action inuring to him by virtue of one or more given state of facts, he introduces a cause of action arising out of a
The nest question is, should the demurrer have been sustained?
The various allegations of said fourth amended petition, aside from those already discussed and the merely formal parts relating to the qualifications of contestant, may be summarized as follows:
1. That no legal election was held as required by law for the reason that the same was not held in substantial compliance with and conformity to the election laws of the State, but was held under a city ordinance (giving its number and title and setting it out in full), which was invalid and void because in conflict with and in violation of article 5, chapter 43, Revised Statutes 1909, and especially with section 5897 thereof.
2. That said pretended local option election was void because not conducted in substantial compliance with and conformity to articles 2 and 5, chapter 43, Revised Statutes 1909, nor any other statute or law authorizing the holding thereof, but that said election was held in total disregard of and nonconformity to the provisions of the Australian Ballot Law as pro
■ a. That the contestee fraudulently refused to furnish booths in the polling places in order to prevent the electors from casting a free and absolutely secret ballot whereby the vote against the sale of intoxicating liquor was greatly increased, and, therefore, the result of said election does not express the will of the voters.
■b. That the contestee fraudulently failed, neglected and refused to provide any places, booths or compartments with supplies and furnish them with conveniences necessary to enable the voter to conveniently prepare his ballot, and to afford the voter a free and fair opportunity to vote yes or no on the proposition submitted, as provided in section 5897, Revised Statutes 1909.
c. That the contestee also failed' to furnish any instructions as to how to vote as provided by section 5878 Revised Statutes 1909.
d. /That by reason of no booths and no writing materials and no printed instructions being furnished by contestee, the electors were greatly hampered, confused and irritated, and this caused a great number of persons to unlawfully assemble and remain in each polling place in said city during said election, electioneering and preparing tickets for voters contrary to law, so that the electors were wholly unable to cast a secret, free and intelligent ballot, and in consequence thereof many electors and qualified voters of the city of Macon who were opposed to the adoption of the Local Option Law, refused to vote.
e. That forty or fifty legal voters of the city who were in favor of the sale of intoxicating liquors were fraudulently deprived of their right to vote at said election by reason of the failure of contestee to furnish
The concluding allegation of the notice was that by reason of the facts aforesaid and because nothing was done by the contestee to afford the voters a free and fair opportunity to vote yes or no as to whether or not local option should obtain in said city, the voters were, by the unlawful action of the contestee aforesaid, deprived of a free and fair expression of their will which made the result, as declared, fraudulent, illegal and void. Wherefore, contestant prayed the court to declare said election null and void.
It appears, therefore, that the ground alleged by said notice, when boiled down to their last analysis, are:
That said election was not held under the Australian Ballot Law of the State but according to a city •ordinance which contained none of the State law’s requirements.
That said election was held in total disregard of the law requiring the Australian system of voting because :
1. No booths or compartments were furnished.
3. Many persons were in the polling places preparing ballots for the voters and electioneering against the sale of liquor. By reason of all which the voters .were deprived of a free and fair opportunity to cast a secret ballot and vote their real sentiments.
The general rule is that if there is a substantial compliance with the law, a vote will not be invalidated or an election annulled even if certain provisions re* garding the manner of holding the election are violated, unless the statute itself provides that such violation shall have that effect; that, in the absence of such a provision, a failure to follow some of the many provisions of the Australian Ballot Law, which failure does not violate the general spirit and controlling object of the law, will not, in the absence of fraud in perpetration and result, be held sufficient to invalidate the election, but will be regarded only as a mere irregularity. On the other hand, if there is a total disregard of the law, or a willful violation of the general spirit and controlling purpose thereof, then this is sufficient to annul the election. [Hall v. Schoenecke, 128 Mo. 661; Gaston v. Lamkin, 115 Mo. 20; State ex rel. v. McMillan, 108 Mo. 153, l. c. 161; O ’Laughlin v. City of Kirkwood, 107 Mo. App. 302; State ex rel. v. Seibert, 116 Mo. 415; Foster v. Scharff, 15 Ohio St. 532.] In Bowers v. Smith, 111 Mo. 45, l. c. 61-2, it is said: “Undoubtedly some irregularities are of so grave a nature as to invalidate the whole return of the precinct at which they occur; as, for example, the omission of registration. [Zeiler v. Chapman (1874), 54 Mo. 502.] In determining which are of that kind, the courts aim merely to give effect to the intent of the lawmakers in that regard, aided by established rules of interpretation. If the law itself declares a specified irregularity to be fatal, the courts will follow that command irre
Now, if the facts, alleged are true, and for the purposes of the demurrer we must so accept them, then it would seem that, where- an election was held in which no booths were provided; where no facilities were furnished to the voter for marking his ticket and doing so alone and free from observation or from coercion of any sort; where many persons were allowed to he in the polling places electioneering with the voters and making out and furnishing to the voters ballots already prepared; and where the voters did not have a free and fair opportunity to cast a secret ballot and vote their real sentiments uninfluenced by those about them, the election cannot be said to have been h&ld in substantial compliance with the Australian Ballot Law. "We do not mean to say that a mere deviation from the methods marked out for the holding of an election would be sufficient to violate the spirit and general purpose of the law and invalidate
In Hall v. Schoenecke, supra, at page 669, the Supreme Court say: “That the controlling object of the Australian Ballot Law is to secure an absolutely .secret ballot, to the end that each elector may fully express his choice of the candidates to be voted for, uninfluenced by threats or intimidation, and that corruption of his vote may be prevented, cannot be dbubted. Every’ positive requirement, therefore, which, if disobeyed, would necessarily defeat this 'object, should be held mandatory. But such as do riot have that effect should be treated as directory, and a failure by the elector to comply strictly therewith should not be held to'invalidate the vote, if the spirit of the law, in the particular case is not violated.-” The court says further on the same, page; “The spirit of;the law and its purpose re-’ quire1 that' the ballot- shall be-secret. That it may be
"We are cited to the case of Skelton v. Ulen, 217 Mo. 383, in support of contestee’s view that the failure to have any booths or compartments constitutes a mere irregularity. In that case one of the allegations was that the booths were without screens and there was no guardrail. Because the Supreme Court refused to disturb the election and said that the contestant had alleged a number of facts which were only irregularities, contestee here argues that a failure to have any booths or compartments whatever would also be treated as an irregularity. We do not think this is a logical deduction to be drawn from the decision. The Supreme Court was considering the case on its merits, and, in its analysis of the evidence, shows that there was a substantial compliance with the law. It is not said whether screens were in fact absent from the booths or not, but the court does go on to show that booths were used and that the voters had a full, free and fair opportunity to vote their sentiments unmolested by any one and to prepare and east their ballots and to have the secrecy thereof duly preserved. Under
Believing that the notice in the case at bar alleged a total disregard of the State election law in the holding' of said election, we are of the opinion that the court erred in sustaining a demurrer thereto. If there was a total disregard of said law, then there was no election. And under the allegations of the notice, contestant should have been allowed the opportunity to introduce proof of that charge and establish it if he could.
Point is made that the question whether or not any election was legally held cannot be inquired into in a contest of this kind, but that the contestant can ■oply question the result thereof. This is clearly untenable. The statute authorizing contests of local option elections says, “The election *. . . and the result thereof may be contested, etc.” The power to contest given by the statute is not limited in its scope, and consequently not only the result of the election, but the legal existence and validity of the election itself, may be inquired into. [State ex rel. v. Ross, 161 Mo. App. 671.]
For the reason above indicated the judgment is reversed and the cause remanded.
ON MOTION TO DISMISS APPEAL.
This action was instituted in December, 1913, to contest an election held in the city of Macon under what is known as the Local Option Law to determine whether intoxicating liquors should be sold in said city. The result of the election, as
Afterwards and while such motion was pending, plaintiff, ignoring the attorneys who had, so far, successfully maintained the contest which he was prosecuting, appeared through the attorneys for the defendant city, and for the reason, among others, that he had become a non-resident of the city and that he had been criticized, asked that the motion for rehearing ‘■‘be sustained and by agreement of the plaintiff, the judgment of the circuit court be affirmed.” This motion, or request of the plaintiff has been vigorously resisted and the right of the plaintiff to thus, summarily, finally to dispose of the case, is the question for decision.
The statute (Chapt. 63, Art. 3, R. S. 1909) provides for the holding of elections in counties, and in certain cities, for the purpose of determining whether intoxicating liquors may be sold. It is provided by that statute (Sec. 7242) that “any qualified voter” may contest such election “in the same manner pro
We think it clear that the contest of a local option election is not the private affair of the person in whose name it is instituted. He acts for the general public as well as himself. Having voluntarily assumed this public duty, he has not the right to withdraw from it, at his caprice, if in so doing he destroys the public-right he set out to maintain. We fear that counsel for defendant; in their zeal for success in this particular •case, have overlooked the consequence of a precedent that would plague any good community in the State which may find itself in the reverse situation to that said to be facing the welfare of the city here involved. See the result of permitting such action: The majority of the legal voters of a community or city may vote at an election against the sale of intoxicating liquor's; corrupt, ignorant or well meaning though mistaken officers, through the aid of fraudulent or illegal votes, may certify the election as being in favor of the sale of such liquors. A contest cannot be had unless begun within twenty days. .A voter (possibly an enemy to the cause, in disguise) assumes the duty of contesting,, begins the proceedings and then, a few days after the time limit has expired, dismisses the contest, leaving the community to be afflicted with the traffic it had voted against.
“A contested election case, whatever the form of the proceeding may he, is in its essence a proceeding in which the people — the constituency — are primarily and principally interested. It is not a suit for the adjudication and settlement of private rights simply. It follows that the parties to the record cannot, by stipulation or otherwise, discontinue or compromise a case of this character without the consent and approval of the court or tribunal trying it. Nor should such consent ever be given, unless the court giving it is sufficiently advised to be able to say that it is for the interest of the public to do so. ’ ’
In 3 Cyc. 183 (italics ours) it is said that, “An appeal will be dismissed where both appellant and respondents so request or agree, if the rights of persons not parties to record will not be affected, and the action is fiot one in ivhich the public can be considered a) party.”
In a county in California a postmaster was elected sheriff. Under the constitution of that State, one holding a Federal office to which a salary of more than $500 was attached was not eligible to hold a State office. A citizen contested his right to the office and a motion to dismiss the proceeding was overruled. The contestee declining to answer, the court, without proof by either party rendered judgment annulling the election. The Supreme Court held the action to be clearly erroneous, saying: ‘ ‘ The public is interested in a case of this character; it is not a matter solely between the parties to the record, and the popular will is not to be set aside upon a mere failure of a party to respond to charges alleged against his right by an individual elector.” [Searcy v. Grow, 15 California 117, 119.]
It seems that by provision of a statute in Pennsylvania twenty qualified voters could contest the elec
Many instances may be cited where from tbe very nature of tbe case a party to tbe action should not be allowed arbitrary control of it. In this case tbe plaintiff is a mere instrument through which tbe court acquires jurisdiction to set on foot and pursue to tbe end, inquiries which are of public concern. His action gave tbe court jurisdiction to pursue an inquiry, not for him alone, but for tbe entire community concerned. It could not have been intended tbat such a party bád tbe power to validate, or invalidate, an election at bis own will.
Tbe motion will be denied.