142 Mo. 255 | Mo. | 1897
This is a contested election case, brought to the Supreme Court by appeal of the plaintiff, or contestant, after a decision on the circuit in favor of the defendant, who holds the certificate of election to the office in dispute, which is that of collector of the revenue for Butler county. The proceeding began with a notice of contest, the grounds of which need not be specially stated at this point. In due time the contestee demurred to the notice. His demurrer was overruled. No answer was filed, but the parties went to a trial as upon a denial of the facts alleged. The court found for defendant, and the appeal followed in due course.
The plaintiff furnished in the brief of his counsel a summary of the evidence from which we take the following passages as fairly presenting the leading facts
The statement in plaintiff’s summary of the evidence touching the failure to elect the substituted judges must be taken rather as the conclusion of counsel than as the fact itself. Further on we shall refer to the testimony on that point,-and indicate our view of its legal effect. The various grounds of plaintiff’s objections to the election will be stated along with the discussion thereof.
1. The Supreme Court has jurisdiction of this cause because it involves title to an “office under this State.” Const. 1875, art. 6, sec. 12; State ex rel. Blakemore v. Rombauer (1890) 101 Mo. 499 (14 S. W. Rep. 726).
2. The fact that no answer was filed does not require the court to take as true the allegations of fact in contestant’s notice of contest. If any answer (or other
3. The general contention of the contestant is that the entire vote of Fitzgerald precinct should be thrown out, because of certain irregularities in the holding of the election there. The first objection of this nature is that one of the judges was not sworn by anyone authorized to administer oaths. The mere absence of an oath by a judge would not vitiate the election, assuming now that an oath is imperatively prescribed to be taken by the judges before entering on their duties. R. S. 1889, sec. 4665; People v. Cook (1853) 8 N. Y. 84; Taylor v. Taylor (1865) 10 Minn. 107. The omission of the oath is not pronounced by law to be fatal to the official authority of any such judge, and we consider such omission to be no worse than a like oversight on the part of a strictly judicial officer of the State when he enters upon his duties. It has been ruled in Missouri that the failure of a special judge to take an oath (prescribed by statute) does not invalidate the decision rendered by the said judge. Vogt v. Butler (1891) 105 Mo. 479 (16 S. W. Rep. 512). The principle of that ruling is applicable to the point now made. We consider the objection by appellant on that score untenable.
4. It is next insisted that the return from Fitzgerald precinct should be nullified because the election there was conducted by four judges instead of six. The reform ballot system (commonly called the Australian) which has been adopted as part of the law of Missouri, requires six judges at such a precinct as that
It appears from the testimony in the case at bar that when the poll opened in the precinct there was some discussion among those present touching the number of judges required to preside. Finally four judges took charge, two of whom had been designated by the county court. There was no evidence that there was in this any intentional or fraudulent deviation from the law, or anything other than an innocent mistake as to the demands of the election statute. The law in force before the adoption of the Australian method of voting called for but four judges at that precinct.
Irregularities in the management of elections under the Australian ballot act have been the subject of many judicial decisions. The minute directions of that act for moving the machinery to express the popular will were not easy to master at once. So the introduction of the system in any locality was invariably accompanied by an exhibition of deviations from the
Popular elections ■ involve the exercise of one of the most cherished rights of the citizen in a free government. But the right of suffrage must needs be exercised under conditions which do not always admit of a rigid observance of every technical requirement of law. The judges of election who manipulate the machinery necessary to record the expression of the voters’ will are usually laymen, unfamiliar with legal technicality, and often wholly innocent of that sense of the importance of matters of mere form which often seems to possess a strange fascination to some learned minds. Election judges are drawn from the great body of the people. They serve for a short while. In the main they do their best to faithfully perform their duties under the law. But they are often guilty of-omissions and oversights in attempting to follow the strict letter of the law. In dealing with those lapses the courts have promulgated a practical general rule which seems to have a direct bearing upon the appeal at bar. That rule is thus stated by the most eminent American text writer on the law of this subject, viz: “If the statute expressly declares any particular act to be essential to the validity of the election, or that its
Applying the rule already quoted, it is clear that the fact of four judges acting at a precinct in lieu of six (the complement prescribed by law) should not be held to deprive of their votes the citizens who voted at that precinct.
5. The next objection to the election is that the judges at the precinct were not equally apportioned to the two leading political parties. Of the four judges who finally acted, one was a Eepublican and three were Democrats.
It does not appear that any harm or prejudice to contestant’s interests was occasioned by the failure to follow the law in the particular just mentioned. - The full vote of the precinct was polled, counted, and returned. There is neither allegation nor proof of any
6. Only two of the four judges who acted were appointed by the county court in advance of the election. , The other two were not elected in any formal manner, but appear, to have been informally designated by the voters (over ten in number) at the opening of the poll, and to have entered then on the discharge of their duties. One of the witnesses describes how this came about: “We simply accepted them in there by the common consent of all present” (referring to the two election judges not named by the prior order of the county court). Plaintiff contends that such a selection of the two judges was fatally irregular under section 4791, Revised Statutes 1889. But that section directs no special form of procedure for the election of substitute judges in event of the absence of a judge officially appointed by the county court. If the voters, in sufficient number, present at the time for opening of the poll, by common consent designate some qualified person to act as judge, such designation is an “election” of the judge within the meaning of the law.
7. We have noted all of the plaintiff’s objections to the election which appear to merit any remark, and finding them groundless, affirm the judgment.