O'Laughlin v. City of Kirkwood

107 Mo. App. 302 | Mo. Ct. App. | 1904

GOODE, J.

(after stating the facts). — We care to add but little to the foregoing opinion. Apparently several points were urged in the court below against the validity of the election which are not insisted on here. The main contention of the appellants in this court is that the secrecy of the ballot was violated by the judges and clerks of the election when they notified the voters that the “outside” ballots were probably illegal; thus compelling voters either to refrain from voting or use the ballots prepared by the election officers. There is nothing in this argument; for voters were at liberty to take from the judges both forms of the regular ballot and vote the one they desired, whether it was for or against selling intoxicating liquor, without the election officers knowing which one was deposited. No citizen would have been compelled to disclose how he voted if he used one of the regular ballots. But in truth the judges did not decline to receive the outside ballots, but notified the voters they might be thrown out of the count as illegal, instead of being counted. This was simply a caution or expression of opinion by the judges, intended to apprise the voters that they took some risk in voting other ballots than the official ones.

Elections under the local option statute are to be conducted in accordance with the law governing municipal elections. R. S. 1899, sec. 3028. The central fact to be shown in an election contest, in order to annul the result, is that some mandatory statute was violated or that the election was conducted in such an illegal manner that the true sentiment of the electors was not expressed by it, or that it is impossible to know whether their true sentiment was expressed. That is to say, unless some positive mandate of the law was ignored, it must appear that the result of the election was changed by the irregular mode in which it was conducted, or that it is impossible to know, on account of irregularities or delinquencies in the conduct of the election, what the real will of the electors was. It is palpable from the facts found by the court below that any irregularities which may have occurred in conducting this election were of a trivial character and had no tendency to prevent an honest vote, or to throw the result into confusion and doubt. The vote cast was large, and so far as was shown, no citizen was deterred from voting as he wished, nor was any fraud or unfairness exhibited by the election officers. There is no warrant whatever for saying the election did not express the sentiment of the eligible voters of Kirkwood on the question they were to decide.

The point is pressed that the election was invalid because the board of aldermen fixed the polling places and appointed the judges and clerks on June 6, 1903, one week before the election, instead of doing so two weeks before as provided by section 4 of Ordinance No. 43 in regard to general elections. That course was taken by a special Ordinance (No. 211) relating to this particular election, which the board of aldermen were at liberty to enact for the desired purpose in lieu of the general ordinance; and it did not invalidate the election unless it was plainly unreasonable or prevented a full and fair vote. The existence of a general ordinance regulating the mode of doing some municipal business does not stand in the way of the adoption of a different method by a subsequent ordinance. Strassheim v. Jerman, 56 Mo. 104. It is apparent that the appointment of the judges and clerks one week, instead of two weeks, before the election, had no bearing on the result and would be treated in any case as a directory requirement, non-compliance with which would not annul an election in the absence of proof that it worked prejudicially against ascertaining the will of the electors. Designation of polling places is most important, because that act notifies citizens where their votes can be cast. We need not decide whether the failure of the board of aldermen of Kirkwood to make such designation two weeks prior to the election under review, as the general ordinance required, would have been fatal if no other ordinance on the subject had been enacted. The question is whether the special ordinance passed one week before the election was valid and sufficient. No statute or ordinance required the polling places to be published in the notices of the election or otherwise; and it has been decided that in the absence of a mandatory law requiring them to be published, their designation by a city council, coupled with published notices, is enough to apprise voters of when, where and for what purpose an election will be held. Chicago v. People, 80 Ill. 493, 503. The important inquiry in this connection is whether time and opportunity to ascertain the polling places were afforded the voters of Kirkwood. This inquiry is answered by the finding of the circuit judge that the vote cast was unusually large, showing that the citizens knew where to vote. That there must be reasonable notice of ’the holding of a special election, including the polling places, is certain; for such an election is not regulated by general law. Haddox v. Clark County, 79 Va. 677, 682; Morgan v. Gloucester, 44 N. J. L. 137; People v. Weller, 11 Cal. 49. Where no* statute prescribed the length of notice, it was ruled that reasonable notice had to be given and that publishing the call for an election on the morning of the day of the election was insufficient. State v. Young, 4 Iowa 561. The same rule was declared in Commonwealth v. Smith, 132 Mass. 289, and the principle on which it rests was thus expounded :

“The main purpose of a warrant for meetings for such elections is to remind legal voters of their right and duty to vote, and of the officers to be elected, and at the same time to give them notice of the place where the election will be held, and of the hour when the polls will be open and when they will be closed. If this election at Gay Head be declared void, there can be no new election for county commissioner at Gay Head, and the voters there will have been deprived of their votes without fault on their part, in consequence of the negligence of the selectmen of the town.

“If this negligence is such that there may not have been a full, free and fair vote, or such that the result of the election there can not be accurately ascertained, this, effect may be unavoidable; but such conclusion ought not to be reached unless the construction of the statutes clearly requires it, or the manner in which the election was called has possibly resulted in depriving some legal voter of his vote, or has influenced or rendered uncertain the result of the election; for this is an election held at the time, in the place and for the purposes prescribed by law, and by the officers authorized by law to hold such an election. The provisions of the statutes which have been disregarded in this case, we think, are not the essence of the thing required to be done, by complying with whiqh jurisdiction or authority to hold an election was obtained; but they regulate the form and manner in which the meeting for an election required by law then and there to be held should be called.”

We feel justified in view of the very large vote, in holding that Ordinance No. 211 was valid and gave the voters sufficient notice of the polling places. In a small town voters have no difficulty in learning where polling places are, unless the polls are concealed or the voters misled; and it'is not asserted that either of those things was done in this instance.

The point that gave us the most difficulty, though it has not been insisted on in appellants’ brief, was the refusal of some of the judges and clerks to certify the poll-books. This refusal was because certain outside ballots were not counted in casting up the result. An examination of the cases bearing on this question has convinced us that the canvassing officers were empowered to canváss the returns from those precincts and take account of them in ascertaining the total result, there being no question made against the integrity of the poll-books, or as to whether the vote was kept in an honest way. Ex parte Heath, 3 Hill 42; Mann v. Cassidy, 1 Brewster 11; Day v. Kent, 1 Ore. 123; Clark v. McKenzie, 7 Bush. 523; Howard v. Shields, 160 Ohio St. 184; State v. Sillon, 24 Kan. 13; Patton v. Coates, 41 Ark. 111. The ■ general result of those decisions is that when, for any reason, election officers have failed to certify the returns from a precinct and no question is made about the honesty of the election, and the vote reaches the hands of the canvassing officers, the failure of the precinct officers to certify the pollbooks or the returns, does not justify rejecting the vote of the precinct; since to do so would tend to defeat the will of the people and deprive them of their suffrage right on account of the nonfeasance of election officers.

It was held in Mayo v. Freeland, 10 Mo, 630, that in an election contest the court may examine the judges and clerks of the election and the pollbooks and correct errors in the returns, so as to determine the result in accordance with the votes cast: that is to, say, may look behind the returns. By parity of reasoning the court may gather the true result by looking behind a defective return.

In Sanders v. Lacks, 142 Mo. 255, it was ruled that the fact that only four judges served at a voting precinct when,the law provided for six, did not justify throwing out the vote of the precinct.

. In this contest the trial court counted the outside ballots in favor of the sale of intoxicating liquors to ascertain the result of the election and it is clear that, nevertheless, the vote was against the sale of intoxicants. The petition for the special election was admittedly sufficient to justify action by the city council. The council took action by an order for an election and not by an ordinance. That mode of calling such an election was approved in State ex rel. Church v. Weeks, 38 Mo. App. 566. See also Lawson v. Railway, 30 Wis. 597; Railway v. Virden, 104 Ill. 340. Legal notice of the time of holding the election was duly published.

The judgment is affirmed.

Bland, P. J., and Bey-b%irn, J., concur.