161 Mo. App. 671 | Mo. Ct. App. | 1912
Lead Opinion
This case is the same as State ex rel. Fahran, 160 Mo. App. 682, against same parties just decided by us and involves the same questions with one additional question. On all questions decided in the Fahrman case, we adhere to the rulings there made. The additional point made in this case is that the provisions of the law relative to the conduct of elections were so flagrantly violated that the election was not held in conformity to the law and should be held void for that reason.
This contention is based upon the following facts: That electioneering was done within 100 feet of the polls. That some ballots were counted on which the judges initials were not endorsed. That in one ward one of the ballot boxes used had no lock and the ballots returned to, the city clerk were not returned in sealed envelope^, but were returned in this unlocked box. That certain ladies who were interested in securing a majority vote against the sale of intoxicat
The failure of the judges of the election in one ward to endorse their initials on some of the ballots did not vitiate those ballots. It will, be observed that the present statute of this. state which directs the names or initials of judges to be put upon the ballot before it is delivered to the voter does not prescribe what consequences shall follow a failure to observe this requirement. It has been held by our Supreme Court that such failure renders the ballot invalid and in a contest case such ballot should not be counted. See McKay v. Minner, 154 Mo. 608, 55 S. W. 866. This case was decided in division two on February 20, 1900, and on March 5, 1900, a motion for rehearing was overruled. Oh March 14, 1900, division one decided the same question the other way, and held that the failure of the election judges to do their duty could not be charged up to the voter and directed that the votes be counted although no initials were endorsed thereon. Hehl v. Guion, 155 Mo. 76, 55 S. W. 1024, A decision by either one of the divisions of the Supreme Court is the law of the entire state until overruled, and it is our duty to follow the latest one. As the decision in the Hehl v. Quion case is of equal authority to the other, and is nine days later in point of time, we must follow it. The fact that one
The irregularity which it is most strongly urged should result in the entire election being declared void, is the charge of improper modes of electioneering by the ladies of the city, by their display of a sign “Vote'er dry” on their booth within the 100 feet limit, and furnishing eatables to voters in the booths. We are asked to brand this conduct upon the part of the ladies as wholesale bribery and by reason of it to hold the election void. We are not disposed to give it so vicious a designation. Whatever may be said as to its propriety we are unwilling to brand it as bribery. These-women were no doubt moved by honest motives and, being familiar with the common frailties of the human family, were no doubt impressed with the logic of that philosophy which has promulgated the theory that the way to reach a man’s heart is through his stomach, and acting upon that principle, they sought to reach the center of the voter’s affections by first appealing to his natural love of tempting viands. In doing this, they were simply following the example set by the ordinary politician who, without any thought of exposing himself to a charge of bribery, when a candidate for office, has treated a crowd to watermelons or cigars or drinks or has given a banquet to those whom he hopes to enlist as his supporters. We do not think the facts in this case would warrant us in placing the conduct of these women upon a level with the conduct of a man who bribes the individual voter or who by offer to perform the duties of the office for less than the legal. fees induces voters to vote for him as was done in the Collier case, 72 Mo. 13.
Irregularities, fraud, or crime may avoid an election, but to xlo so they must be of such a character as to, at least, throw doubt on the question whether the
There was no evidence that any body’s vote was affected by the alleged irregularities or improper conduct and there can be no question under this evidence that there was an entire failure to impeach the correctness of the returns as 'made.
We do not think the fact that electioneering was done inside the 100-foot limit should render the election void. Such a rule would put it in the power of evil designed persons who were willing to violate the law in order to defeat an election to accomplish their purpose in defiance of the will of the voters and would turn the control of all elections over to ‘the criminal classes.
Concurrence Opinion
SEPARATE CONCURRING OPINION.
Having reached the same conclusion in my consideration of this case as my associate, but from a different viewpoint, it seems proper to give tfie reasons for my conclusions in a separate opinion.
This is a proceeding by mandamus to contest the validity of a local option election held in the city of Carthage, Jasper county, Missouri, on the 3d day of February, 1910. The relator/ a citizen of Carthage, possessing all the statutory qualifications required to make him eligible as a dramshop keeper, on the 23d day of January, 1911, duly presented to the county court of Jasper county his petition and affidavit and application for a license to keep a dramshop in said city, and otherwise complied with all the legal requirements. These facts the county court found on examination to be true and so recited of record, but denied the petition of the applicant for a license on the sole ground that the provisions of the Local Option Law were in force in said city of Carthage. The applicant then filed his petition in the circuit court of Jasper county setting up said facts and asking the court to issue an alternative writ of mandamus commanding the judges of the county court to issue him a license or show cause.
It appears from the records of the city council of the city of Carthage that the petition for the local option election was presented to the city council signed by the requisite number of legal voters of the city, asking the said city council to submit to the voters of the city of Carthage the proposition whether or not
The adoption of the Local Option Law is prima facie established by the production of a certified copy of the result of the election as spread upon the records of the city ordering the election and proof that the requisite subsequent publication of the result was made — all of which was shown in this case. [State v. Searcy, 39 Mo. App. 393; State v. Searcy, 111 Mo. 236, 20 S. W. 186.]
What is known as the Local Option Law provides, among other things, as follows: "The election in this article provided for, and the result thereof, may be contested in the same manner as is now provided by law for the contest of the elections of county officers in this state by any qualified voter of the municipal body or of the county in which said local option election shall be held by an action to contest as herein provided, and which shall be brought against the municipal body or the county holding said election.” [Sec. 7242, R. S. 1909.]
The Local Option Law, as originally passed (art. 3, chap. 22, R. S. 1899), failed to provide who should be the contestant and who the contestee in the case of. a contest of a local option election. The validity of the statute as it then stood came before the Kansas City Court of Appeals in the case of Kehr v. The City
After the publication of the opinion in that case the Legislature of 1909 proceeded to supply the omission as to the contestant and contestee by providing that in any such election any qualified voter of the municipal body or of the county in which the local option election shall be held might contest by an action under said section and that the suit should be brought against the municipal body or the county holding such election.
In the absence of any statutory proceeding, the only remedy in the nature of a contest to determine the right to an office known to the common law is quo warranto, or in modern times, an information in the nature of quo warranto, whereby upon proper application made the court will inquire into the authority by which any person assumes to exercise the functions of a public office, and will oust him in case no
Mandamus is an extraordinary remedy and is not applicable when there is another specific remedy. [State ex rel. v. Fletcher, 39 Mo. 388; Mansfield v. Fuller, 50 Mo. 338; State ex rel. v. Macon County Court, 68 Mo. 29; State ex rel. v. Boonville Bridge Co., 206 Mo. 74, 103 S. W. 1062; State ex rel. v. Turner et al., 210 Mo. 77, 107 S. W. 1064.]
Where a specific remedy for contesting elections has been provided by statute, that mode alone can be resorted to. The mode of contesting prescribed by statute is the exclusive remedy, so that an action at law will not lie under the ordinary jurisdiction of the courts to have the election declared void. The limited remedy of contest by mandamus is superseded whenever the statute provides for a contest of local option elections. Furthermore, the validity of a local option election is not open to impeachment or attack in collateral proceedings, — such as an application for a license to sell intoxicating liquors, as was made in this case, — for the reason that a direct remedy has been provided by law; and the making of an attack by mandamus is a collateral impeachment of the elec
But it is the adverse contention of the appellant that although the statute authorizes a contest of a local option election, such remedy is not exclusive, and that mandamus is also available as a remedy. To sustain this, our attention is called to the following statement in 23 Cyc. 101: “The local option statutes commonly provide a method of contesting the declared result of an election held thereunder, and make specific provisions as to the courts or boards which shall have jurisdiction of such proceedings, the parties who may institute and defend such a contest, and the grounds
Appellant also claims that his view of the law is supported by the following authorities: Common
The appellant further claims that the provision for a contest contained in the Local Option Law, having been allowed to remain on the statute books inoperative for several years, the remedy by mandamus in certain classes of local option election cases acquired something like prescriptive rights. The reason why the contest provision remained inoperative is explained by the simple fact that it made no provision for a contestant and contestee and consequently could not be in operation. We know of no rule of construction by which an act of the Legislature, wholly void, can be made a key for its interpretation when subsequently validated by an amendment.
Another rule sought to be applied to this case is that the Legislature did not intend to make the contest of a local option election the exclusive remedy or it would have inserted such a provision in the amended act. In construing any statute it is proper and often useful to consider the state of the law as existing at the time of its enactment as casting light on the in
From the authorities herein cited, the Legislature at the time of amending the Local Option Law must have known that the law as declared by text-writers as well as by the courts of many jurisdictions construing statutes like the one the Legislature then had under consideration had generally been held to be that the enactment of a valid provision in a local option statute as to contest was exclusive of a proceeding by mandamus ; and if they had intended to make the remedy by mandamus a cumulative one with the remedy by contest, they would have so declared by the amendment.
Many of the states whose statutes contain provisions for contesting local option elections limit the scope of such contest. The contesting of elections belongs to the political branch of the government, and hence an action to contest an election is a special statutory proceeding, and the powers conferred on the courts in such cases must be exercised within the limits and by the methods prescribed by the statute. [Ogburn v. Elmore (Ga.), 51 S. W. 641; 15 Cyc. 393.] The powers conferred by the statute of our state are put on broad ground and without any limit, except the provision that such elections “may be contested in the same manner as is now provided by law for the contest of the elections of county officers in this state.” [Sec. 7242, R. S. 1909.]
“The term ‘contested election’ has no technical or legally defined meaning. An election may be said to be ‘contested’ whenever an objection is formally urged against it which, if found to be true in fact, would invalidate it. This must be true both as to objections founded upon some constitutional provision as well as upon mere statutory enactment. The primary meaning of the verb ‘to contest’ as given by Webster,
Jurisdiction is thus conferred by the Legislature upon the courts of this state to determine contested elections and the results thereof and under the terms of the Missouri statute it reaches back to the very initial steps of the election and includes every subsequent step by which the result was finally reached and declared. There is- no limitation or restriction as to the scope of the investigation in such statutory contest and it goes ex vi termini to the whole election proceediug.
It is important to every community in which a local option election is held that there should be some speedy remedy by which in one action there can be determined the result of the election and thereby bind all interested parties. Such elections, on account of the magnitude of the interests involved, are necessarily attended with more or less excitement in the community, and it becomes important that the result should be finally put to rest in order that those engaged in the duty of enforcing the criminal laws, as well as those who desire to engage in the-liquor traffic, should
It follows from these conclusions that the remedy by mandamus in this case was superseded by the provisions of the law in regard to contested elections and that the court had no jurisdiction by mandamus to contest the local option election; but as the judgment was for the right party, it should be affirmed.