181 Mo. 5 | Mo. | 1904
This is a contested election case. The parties were rival candidates for the office of clerk of the circuit court of Sullivan county at the election held November 4, 1902. By the official returns of the election officers it appeared that Dormer, the contestee, received 2,252 votes, and Montgomery, the contestant, 2,251. Dormer appearing then to have a majority of one, was awarded the certificate and entered into the office. On November 24, Montgomery served notice on Dormer that at the next term of the circuit court in that county, to be begun and held on the 15th day of December, 1902, he would contest the election. The grounds alleged for the contest were substantially that certain persons named were not legal voters because they had not resided in the State one whole year before the election, and were not residents of the township or precinct in which they voted, yet that they did vote for the contestee and their votes were counted for him; also
On December 13th the contestee filed in court and served -on contestant a counter notice of contest, stating that certain legal ballots cast for him had not been counted and certain illegal ballots cast for contestant had been counted, and that contestee had in fact received the majority of the legal votes.
There are three regular terms of the Sullivan Circuit Court, January, April and October. The October term, 1902, was in session November 6th, and adjourned to December 15th. On December 15th, this cause was by agreement of the parties continued to the January term, 1903, and at that term it was again by agreement continued to the April term, during which term it was tried.
The only evidence adduced at the trial was that on the part of the contestant; it tended to prove, if it was competent evidence, the facts presently mentioned set out in the special findings of the court. Upon the eon» elusion of the contestant’s evidence the contestee asked an instruction in the nature of a demurrer to the evidence, which the court refused, and exception was duly taken. At the request of the contestee the court made a special finding of facts. In this it is found that certain persons named, nine in number, were lawfully entitled to vote and did vote for the contestant, but their votes were not counted; that certain other persons named, thirteen in number, were not lawfully entitled to vote,-because they had not resided in the State a year before the election, but that they did vote for the contestee, and their votes were counted for him; that deducting from the contestee’s number those thirteen illegal votes that had been counted for him, and adding to the contestant’s number those nine legal votes that had been cast
On the trial the contestant called as witnesses certain of the judges of the election, and by them proved that the thirteen persons whom the court found to have been not entitled to vote, but whose votes had been received and counted by the election officers, had voted for the contestee. The contestee objected to this evidence when it was offered on the ground that it was not the best evidence, the ballots themselves being the best, and second, it was unlawful for a judge of an election to disclose how anyone voted. The objection was overruled and the contestee excepted. The contestant produced as witnesses the nine persons whom the court found to have been lawfully entitled to vote and who did vote, but whose votes were afterwards rejected by the judges and not counted, and they testified that they had voted for the contestant. This testimony was also objected to by the contestee on the ground that the ballot was the best evidence, and that it was not lawful to require or permit an elector to disclose the secrecy of his ballot. That objection was also overruled and exception preserved.
Appellant assigns for error the overrulings of the objections to the evidence above mentioned, and also that the court did not have jurisdiction of the case.
I. The last assignment is based on the fact that the original notice served on the contestee was that the contest would be made at the next term of the court to be held on the 15th of December, whereas on that day was to be held only an adjourned session of the October term, the next regular .term being in January.
Section 7029, Revised Statutes 1899, confers on the circuit court jurisdiction in cases of contested elections
. Section 7033 is, “Every court authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleading; and the contest shall be determined at the first term of such court that shall be held fifteen days after the official counting of the votes, and service of notice of contest, unless the same shall be continued by consent, or for good cause shown.”
The main purpose of the statute as it relates to the notice required, is to compel the contestant to act promptly and give timely notice; the only penalty imposed is upon his failing to give the notice within twenty days after the official countin'g of the votes; his right to contest depends on his first giving that notice. Higbee v. Ellison, 92 Mo. 13, to which the appellant refers, was a contest for the office of circuit judge; the statute required in such case that the contestant present his petition to the court at the first term next after the election, or else to the judge in vacation; but in that case the contestant had allowed the next regular term of court which was begun after the election, to pass without presenting his petition, and did not afterwards present it to the judge in vacation. It was held that he had suffered his opportunity to pass and his suit was dismissed.
State ex rel. Hancock v. Spencer, 166 Mo. 279, is also relied on by apellant to maintain this assignment, but in that case also the contestant had failed to give the notice within the time required by law; it was held that he had no right to further prosecute his contest.
In the case at bar the notice was given within the
Section 1605 provides that “special' or adjourned sessions of any court may he held in pursuance of such proclamation (that is, proclamation by the sheriff) or in continuation of the regular term, when so ordered by the court in term time, the order being entered in its record. ’ ’
The statute contemplates special terms, adjourned terms, and regular terms. The adjourned term there mentioned, although it is a continuation of the regular term, is not the uninterrupted or unbroken session held in pursuance of an adjournment from day to day, but is a session held after a lapse óf a longer period, and is commonly called an adjourned term. That was the kind of term that was held in this instance. The court being in session on November 6th, which was a day of the October term adjourned to December 15th, that was the first term held after the election, and was the term to which the notice called the contestee; at that term he appeared and filed his counter notice, and consented that the cause be continued to the next regular term, which was done. The contestant in giving the notice for that adjourned term acted in conformity to the requirement of the statute as construed by this court in Adcock v. Lecompt, 66 Mo. 40, wherein it was said: “The statute does not say that this term shall be the regular term or special term or adjourned term, but the first term or session of the court whether regular, adjourned or special.”
We hold that the court had jurisdiction of the case at the adjourned term.
II. Appellant’s second assignment raises a more serious question. The evidence showed that thirteen persons who, on account of their non-residence, were not entitled to vote, had voted. Respondent was permitted over the objection of appellant to prove by the
1. The rule of law that demands of a party the best evidence of a fact to be proven is qualified to mean that the party must produce the best evidence available to him. [11 Am. and Eng-. Ency. Law (2 Ed.), 535.] Conceding that the ballot itself is the best evidence of its contents, was it available to the contestant or to either party at the trial of this case?
Section 6995, Eevised Statutes 1899, prescribes what shall be done with the ballots; “and the ballots, after being counted, shall be sealed up in a package and delivered to the clerk of the county court or corresponding officer in. any city not within a county, who shall deposit them in his office, where they shall be safely preserved for twelve months; and the said officer shall not allow the same to be inspected, unless in case of contested elections, or the same become necessary to be used in evidence, and then only on the order of the proper court, or a judge thereof in vacation, under such restrictions for their safekeeping and return as the court or judge making the same may deem necessary; and at the end of twelve months, said officer shall publicly destroy the same by burning without inspection; and no judge or clerk of an election shall disclose the names of the candidates voted for by any voter, and any judge or clerk violating the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of one hundred dollars.”
In that section no authority is given to take the ballots out of the custody of the county clerk, but authority is given to inspect them under conditions in case
This brings us to appellant’s second ground for contention that the evidence offered was illegal, viz.:
2.. The law forbids election officers to disclose how uny elector voted.
Deducting those thirteen votes from the contestee’s total, leaves the contestant with a majority of twelve votes, which entitles him to the office in question, without adding the nine votes which the court found had been lawfully cast for him, but not counted in the return.
Whether the court had authority to require or permit those nine men to testify, each for himself as to how he voted, we regard as a grave question. The court treated it as a matter of personal privilege to the witness and allowed him to answer or not as he chose. But whilst it is a matter of personal privilege, yet the voter is not the only party interested; the State has an interest in securing freedom of the ballot. Besides, if a voter really has a motive for keeping secret his ballot
The judgment is affirmed, and it is ordered that a writ issue out of this court directed to the marshal of the court requiring him to forthwith put the respondent, Edward L. Montgomery, in possession of the office of clerk of the circuit court of Sullivan county.