41 Mo. App. 99 | Mo. Ct. App. | 1890
Lead Opinion
At the last October term of the Ray circuit court the defendant, Mackin, was tried and found guilty of selling intoxicating liquors in said Ray
I. Of all the questions presented in this record, and discussed at the hearing, we shall here notice but one, since our view thereon effectually disposes of this case. In the effort to prove the adoption of the provisions of the “local-option” law, by which the sale of intoxicating liquors should be prohibited in Ray county, among other matters introduced by the state’s attorney, was the following, spread upon the record of the county court of Ray county, to- wit:
“Thursday, August 11, 1887.
“Court met pursuant to adjournment; present, Judges Thos. McGinnis, S. A. Wollard and Adrian Gordon, John C. Morris, sheriff, and W. E. Ringo, clerk.
“Now, at this day, comes William E. Ringo, clerk of the county court, and takes to his assistance Judges Thos. McGinnis, S. A. Wollard and Adrian Gordon, and in the presence of said judges casts up the votes polled at the various voting precincts in said county, at the special election held Tuesday, August 9, 1887, under the provisions of the ‘local-option’ law, and finds from said poll books that seventeen hundred and seventy votes were cast ‘ for the sale of intoxicating liquors’ and nineteen hundred and seventy-seven votes were cast ‘ against the sale of intoxicating liquors,’ as shown from the certified returns made by the judges and clerks of the following election precincts in said county: ” * * *
The foregoing purports to show a canvass of the returns from the various election precincts, and the
The law for ascertaining and determining the result of general elections for county officers is found in sections 5505, 5506 and 5507. Section 5505 directs the judges of election at each precinct to transmit to the county clerk one of the poll books kept at such precinct, and, thereupon, section 5506 provides as follows: “The clerk of each county court shall, within five days after the close of each election, take to his assistance two justices of the peace of his county, or two judges of the county court and examine and cast up the votes given to each candidate, and give to those having the highest number of votes certificates of election.”
But it appears, from the evidence in this cause, that the board of canvassers, provided by law for ascertaining and determining the result of this election in Ray county, was not selected or organized, but another and different body. The law requires the board to be composed of the county clerk and two judges of the county court, or two justices of the peace. Here it was composed of the clerk and three judges — four persons instead of three as fixed by the statute. It follows, therefore, that the result of this election has never been legally determined, since the returns have not been canvassed, nor the votes cast up, and result declared, as required by law. It will not answer this objection to say, that the two judges, or justices, are mere witnesses to the counting by the clerk, and, therefore, that having three instead of two witnesses, to the duty there performed by the clerk, will not invalidate the canvass. The two judges are not mere spectators, but are two of three members of a committee, board or body, with power and duties coextensive with the clerk, in the matter of determining the result of the election. The section before quoted provides, that the clerk “shall take to his assistance two justices of the peace,” or judges, not that he shall call in such officers as witnesses merely to the performance. These judges or
True it is, that these canvassing boards are officers whose duties are merely ministerial (65 Mo. 480; McCrary on Elections, sec. 229), still the composition of such board is provided by law, and neither the county clerk nor the courts have any power or authority to organize it differently. Trueheart v. Addicks, 2 Texas, 217. It was the duty of County Clerk Ringo, on receipt of the poll books from the various precincts, to call to his assistance two judges of the county court, or two justices of the peace of Ray county, and with them cast up the votes given, and certify the result thus obtained to the county court. Said clerk has not, as yet, performed that duty. The board of canvassers has not been selected as the law requires (and, therefore, not selected at all), and hence the result of said election is not legally ascertained.
It follows, therefore, that the defendant was illegally convicted, and the judgment of the circuit court is reversed. All concur.
Rehearing
ON MOTION FOR REHEARING.
The motion for rehearing which has been filed in this cause and the argument in support thereof discloses a total misconception of the opinion rendered. Much argument is submitted to sustain the