State ex rel. Maring v. Swanger

212 Mo. 472 | Mo. | 1908

OPINION BY THE COURT.

PER CURIAM.

— The blunt and single question is this:

Is the omission of the statutory words, “that their respective residences are stated therein,” from the affidavits of the qualified electors appended to two certain nomination papers, nominating Mr. Maring as a candidate for the office of State Treasurer, fatal to their filing — the nomination papers and the appended affidavits being otherwise confessedly in strict compliance with the State Primary Act?

We are of opinion (Yalliant, J., absent and Graves, J., not sitting) that the omission is not fatal to the filing of such nomination papers, as one step towards getting on the official ballot, and that the final writ of mandamus should go.

This, because:

(a) Broadly, the State Primary Act being highly remedial and not in contravention of the common law, under canonized rules of construction its provisions should he liberally construed to further and give force to its beneficent life and purpose in advancing the remedy provided and retarding the mischief struck at. The rigor of very strict compliance with the minutiae of directory provisions (such as this) of the Primary .Act is not to- be exacted at the hands of the plain citizens unskilled in technical precision who are called upon to initiate action ,under the primary law, unless vehement call is made therefor by the act. The mind of the judicial interpreter of such a law must not be narrow and oh the qui vive for flaws or it will stumble; and, absent the oil of common-sense construction, the new and untried machinery of the law will break down and its technical burdens prove its utter undoing. Many instances readily recur of the application of the doctrine of the sufficiency of substantial compliance as against very strict -compliance. Thus (e. g.), the statute prescribes a form for acknowledgment of deeds. In construing that statute it has been steadily held that a substantial compliance is well enough. [See authorities collated by the learned annotator of Mo-. Ann. Stat., p. 842, et seq.] The same doctrine is applied in determining the sufficiency of the returns of constables on writs (Ables v. Webb, 186 Mo. l. c. 246); in determining the sufficiency of an affidavit for appeal (State ex rel. v. Broaddus et al., Judges, 210 Mo. 1); and, closer to the point, in interpreting’ those provisions of an election law not made mandatory by the clear reason or words of the statute (Sanders v. Lacks, 142 Mo. l. c. 262, et seq.). That the Legislature- held this doctrine in mind, witness the act itself. Thus, section 5 prescribes a form for a nomination paper and ordains that such paper shall “substantially” follow the form laid down. Section 8 provides that ‘ ‘ the affidavit of a qualified elector shall he appended to- each nomination paper,” i. e., should become a part of the paper. This being so, the statutory birthright of substantial compliance granted to the form of the nomination paper may well be held to run with the affidavit, by express legislative sanction. Now, a rule of construction the Legislature has said is good for the one (the paper, itself), shall the courts say is bad for the other (an incident to the paper) ? That such legislative benediction, the grace of substantial compliance; should be made as broad and efficacious as may be by judicial construction, goes as of course.

(b) Obviously, the office of the statutory affidavit was not so much to furnish a clue for the detection of fraud in the preparation of a nomination paper, as to authenticate the document itself — make 'it gO', pass current, as it were, with the Secretary of State as a genuine paper, executed for the purposes of the law and entitled to his official vise for filing and counting. Observe, the statute does not say the correct postoffice address of the signer shall be given in the paper nor as part of the affidavit. It says his residence shall be given — quite another thing; for A may reside at B and get his mail at C. “Residence” goes to his right to sign; for the law provides that “for State officers, all signers on each separate nomination paper shall reside in the same county.” If the Legislature had intended the postoffiee addresses of the signers should be given so that their identity on a pinch might be run down and established by the use of the United States mail, it was very lame in not saying so outright. It stops quite short of that. The statute pointing to the residence of the signers, when the affidavits in question certify that the several affiants knew the signers to be “qualified electors of the county” (which fact includes by necessary implication residence therein), and knew that they signed the respective nomination papers “with full knowledge of the contents thereof” (which fact includes by necessary implication their knowledge that said papers gave their residences as in the county), we think the fair purposes of the law were fully subserved. Indeed, what sensible legal purpose was to be gained by affiants also stating that the signers’ respective residences “are stated therein?” They were “stated therein.” The papers say so — res ipsa loquitur. Why state what the papers state when the official eye of the Secretary of State could see what they state, not through the glass of an affidavit, darkly, but face to face in the papers themselves, and when an affidavit containing the omitted words would furnish not a ray of light except a borrowed one? Let us suppose by way of hypothesis, as a reductio ad absurdum, that the nomination papers did not in fact give the residences, but, notwithstanding that omission, affiants had made affidavits that the residences “are stated therein,” would the Secretary of State in the line of his duty look no further than the affidavits to ascertain the real fact? To so hold would be judicial nonsense. If, then, he must look to the papers to see the fact, what vital function does the mere signboard in the words omitted from the affidavit serve? None that we can see. And what says the maxim — the law forces no one to do vain or useless things {Lex neminem cogit, etc.) ?

If the statute had ordained that affiant should state to his personal knowledge that the respective residences of the signers are as “stated therein,” a different question might be here. Under such circumstances, the oath of affiant would serve a purpose in attesting his personal knowledge of the truth of the particular fact that the residences were truthfully stated, but the statute makes no such requirement and we will not go beyond the law by reading it in by construction.

We hold, then, that the pretermitted words are not of the essence of the thing — that the statute in that regard is essentially directory; and, so holding, we conclude the omission not fatal to the validity of the nomination papers.

(c) Mandamus seems the proper remedy. [State ex rel. Scott v. Dirckx, County Clerk, 211 Mo. 568; State ex rel. Rinder v. Goff, 129 Wis. 668.]

Let the final writ go.

All concur, except ValUant, J., absent, and Graves, J., not sitting.