7 Mo. App. 142 | Mo. Ct. App. | 1879
delivered the opinion of the court.
The question presented by this case would have been more properly raised by demurrer to the petition for mandamus, instead of, as at present, by demurrer to the reply to the return. This is, however, immaterial, as the view we take disposes of the whole case. The essential facts are that, at the election of April 1, 1879, the relator was a candidate for member of the House of Delegates of the
The present is not the case of a disqualified person who had received the highest number of votes, and a claim to the certificate, founded on such disqualification, on the part of an eligible candidate who has received the next highest number of votes. Notwithstanding some differences of opinion, arising partly from following English decisions which are neither satisfactory in themselves nor adapted to our circumstances, the great weight of American authority supports the rule that where, an ineligible person receives the highest number of votes, the votes cast for such person so far avail as to prevent the election of the qualified candidate who has received the next highest number of votes, unless there is some statutory provision declaring the votes cast for the ineligible person void. See authorities collected in Cooley’s Const. Lim. 781, and note; Dill. on Mun. Corp., sect. 135; In re Corliss, 16 Am. L. Reg. (n. s.) 15, and note. Here, the case is of votes cast for a man known by the voters, when they voted, to be dead ; and the facts appear, at first sight, to present the typical instance put in the English cases, of ‘‘ voting for a dead man or the man in the
If it is true that a majority vote operates only to elect, and, failing of that, goes for nothing, then the most innocent mistake of fact on the part of the majority— as, the age of a person voted for — might avail to elect a candidate who had received onty a few scattering votes. It is said, on the other hand, that if the American doctrine is correct, votes cast for a fictitious person avail to defeat an eligible candidate ; that if the voters choose to stay away, or, what is the same, throw away their votes, those votes should not be counted as against valid votes. The force of this argument lies in the assumption of an intent to throw away the vote. If the voter can make his vote' effective only by voting in a certain way, and if the result of his voting in this way is to secure a new election, at which the majority can elect, how can it be assumed that the voter intended to throw away his vote? If the death of a candidate of a political
This presumption of an intent on the part of the voter that his vote should not, for any purpose, be effectual, any more than if it were blank paper, is indeed to a great extent a fiction of the English courts, and political considerations have probably contributed to produce it. Out of it arise the difficulties and disagreements of those courts which have followed the English theory. On the one hand, it is held — a doctrine which is consistent with legal principle and affords a working rule — that as ignorance of law, which every one is bound to know, excuses no one, therefore the voter consents that his vote for the ineligible person shall not count for any purpose. Gulick v. New, 14 Ind. 93; Price v. Baker, 41 Ind. 572; Hatcheson v. Tilden, 4 Har. & M. 279; The Commonwealth v. Cluley, 56 Pa. St. 275, per Thompson, C. J., dissenting. But so harsh is the operation of the rule in depriving the-sincere voter of his vote, and so directly opposed is the result produced to the purpose of voting, that the consequence has been either a denial of the application of the rule that knowledge of
It is true that, as in Wilkes’s case, who was three times declared ineligible by the House of Commons and three times voted for by a majority of the voters, the intent may be apparent on the part of the majority to defy the law; and it may, on grounds of public policy at least, be pronounced that in such cases the persons so voting intend to throw away their votes. But the dangerous extent to which the English doctrine is liable to be carried, and its unjust effect as resulting in the election of minority candidates, seem now to be appreciated by English judges. Queen v. Mayor, supra. If, in this country, mischief is likely to arise from such perverse political feeling, legislative provision can easily be made without defeating the will of law-abiding voters.
Allowing all that has been said in the petition to be true, no presumption arises here that the majority of the voters voting at the election, intended to throw their votes away. It has yet to be shown that it is a rule of law to deny any legal effect to a lawful act because the fullest effect cannot be given to that act. Though, owing to the accident of death, these votes could not avail to elect, they not the less distinctly indicated the will of the electors of the ward. The result was clearly a failure to elect in the manner contemplated, by the charter.
The demurrer is sustained ; and, as no amendment can avail the relator, the petition will be dismissed.