Hope v. Flentge

47 L.R.A. 806, 41 S.W. 1002, 140 Mo. 390, 1897 Mo. LEXIS 242

• Court: Supreme Court of Missouri
• Decided: June 29, 1897
• Status: Published

Opinions

Gantt, J.

This is a case of contested election under the laws of this State for the office of collector of the revenue of Cape Girardeau county, to which appellant, Elentge, received the certificate of election at the general election held November 3,1896, the official count by the county clerk showing that appellant and eontestee received 2,449 votes and the contestor and respondent 2,440 votes. The official ballot for said election in said county contained eight distinct tickets, grouped under the following.different headings or captions: “Democratic Ticket,” “Republican Ticket,” “People’s Ticket,” “Prohibition Ticket (nominated by electors),” “Socialist-Labor Ticket (nominated by electors),” “Palmer-Buckner National Democratic Ticket (nominated by electors),” “National Ticket (nominated by electors),” and “Independent Ticket (nominated by electors).”

Edward W. Elentge was the Republican candidate for collector and E. L. Hope was the nominee of both the Democratic party and the People’s party.

In the time allowed by statute the respondent Hope gave notice of contest, assigning two grounds: First, that twelve persons whose names were given and charged to have voted for Flentge, the contestee, were not legal voters. Second, that by mistake of the election officers, forty votes cast for contestor, Hope, at Steimel precinct were not counted for him.

And thereupon in due time the contestee Flentge served the contestor with notice of a counter contest. The grounds of which are:

First. That twenty-three persons named who voted for respondent were not legal voters.

Second. That at fourteen specified precincts a certain number of legal and valid ballots cast for appellant were unlawfully rejected and not. counted for him.

Third. That the judges of election unlawfully failed to count forty-one votes cast for him at Steimel’s precinct.

Fourth. That the ballots of Robt. Foster and others (twenty-sis in number) cast and counted for 'respondent at Neeley’s Landing precinct, were illegal and void, because the Democratic judge of election entered the booths and assisted the preparation of said ballots.

Fifth. That the ballots of W. F. Points and others (sixty in number) cast and counted for respondent at Burfordville precinct were illegal and void, because prepared by the judges of election without oath being first made by the electprs as to their inability to read or write, etc. .

Sixth. That the ballots of Ed. Turner and Wm. Welch, cast and counted for respondent at the court house precinct, were illegal and void, because prepared by the judges without an oath of disability on the part of the electors.

Seventh. That the ballots of Hy. Penturf and others (seventy in number), east and counted for respondent at Orump precinct, were illegal and void, because prepared by the judges of election without an oath of disability by the electors, and because the democratic judge of election entered the booths and assisted in the preparation of the ballots.

At various precincts in the countj^ the election officers refused to count and rejected those ballots which contained two groups unscratched, thus those in which the Democratic or Eepublican group and the Independent group were neither scratched. This action forms the basis of the second ground of contest in the counter contest of the appellant Flentge.

Copies of the official ballot and of the rejected ballots accompany this statement.

On the application of the contestor, Hope, there was a recount by the county clerk of the ballots cast at Steimel precinct, and on the application' of con-testee a recount of all the precincts. The county clerk made separate certificates under the two orders.

At the January term, 1897, a trial was had and a judgment rendered in favor of the contestor Hope, the court finding that he. had received a majority of twelve votes. A motion for new trial was made and overruled and an appeal taken to this court.

Upon the record in the cause appellant Flentge submits for review the following points:

First. The act of the court in overruling the motion for a recount of the votes at Friedheim and Appleton precincts.

Second. The ruling on the vote of Eobt. Buelte-mann.

Third. The ruling on the votes of A. N. Payne and E. W. Nelson.

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Fourth. The refusal of the court to count for him the forty-eight rejected ballots.

Fifth. The refusal of the court to receive evidence to prove that the judges entered the booths to assist in making ballots cast for contestor.

Sixth. The refusal of the court to permit proof of ballots cast for contestor having been marked by the election judges without requiring from the electors an oath of disability.

I. For a proper appreciation of the first assignment it will be necessary to recite the substantial facts in full. The certificate of the county .clerk made in obedience to the writ obtained by the contestee recited a recount of all the rejected ballots at the precincts named in the writ except the precincts Friedheim and Appleton. As to these he certified: Friedheim precinct, Apple Creek Township. “In this precinct I find no rejected ballots.” Appleton precinct, Apple Creek Township. uln this precinct I found one rejected ballot, No. 127, tuhich I also rejected because the same was not a proper ballot but was a ‘ Gash Book’ supplement.” The Cash Book is the title of a newspaper in said county.

On the eighth of January, 1897, contestee filed his motion for an order requiring the clerk to open and recount all the ballots in said precincts of Appleton and Friedheim. The cause assigned was that the election officers had failed to mark the rejected ballots so that they could be identified but had strung them on the wire with the ballots they had counted. The poll books showed there were more votes cast at said precincts than the sum of the votes for contestant and contestee. This motion was overruled and contestee duly saved his exceptions.

Conceding, as the appellant does, that there was no way of identifying what ballots if any were rejected by the election officers, and the county clerk having’ already made two examinations and two certificates of the facts as to the condition of the contents of the ballot box, we are at a loss to see what beneficial result could have accrued to either side by another recount. We do not understand that his return to the effect that ‘'the rejected ballots are not so marked as to be identified,” is questioned, and even if it were, the law stamps it as prima facie true. Contestee having adopted this return as true, it must have seemed to the circuit court, as it certainly does to us, that another examination would necessarily disclose the same facts. The mere fact that there was a difference between the votes cast for contestor and contestee and the whole number of ballots returned to the county clerk, would not indicate to the county clerk the particular ballots not counted by the judges nor whether those not counted were for contestor or contestee.

In Sone v. Williams, 130 Mo. 530, it was ruled that while the circuit court might order a second recount, it was not a matter of course, and when upon the first count the fullest opportunity had been given for examination of the ballots and a second recount was sought upon mere belief and surmise only, it was properly denied. In this case the appellant had had the benefit of two counts and no good purpose could have been subserved by still another recount in the face of the admission that when made there would be no means of identification of the ballots rejected. This assignment can not be sustained.

II. The challenges of E. W. Nelson and A. N. Payne were based upon the want of legal residence in the county. These parties testified to a residence of more than twelve months in the State and more than sixty days in the county and that they had their home in the county. It was a question of fact in which the intention of the parties largely entered and the circuit court found they were residents within the meaning of the law and that finding we will not disturb. Lankford v. Gebhart, 130 Mo. 621; Hall v. Schoenecke, 128 Mo. 661.

III. The exclusion of the forty-eight ballots for contestee on which there were two groups, the Republican and the Independent, not scratched, presents the decisive question in this cause. Section 4781, Revised Statutes 1889, was.repealed by the act of April 4,1891, and a new section bearing the same number adopted in its stead. The new section reads: “On receipt of his ballot the elector shall forthwith, and without leaving the polling place, retire alone to one of the places, booths or compartments provided, to prepare his ballot. He shall prepare his ballot by crossing out the groups he does not wish to vote, and then make all changes on one group by striking out the name or names of candidates he does not wish to vote for, and write the name or names of his choice underneath, so that the remaining part shall express his vote upon the questions submitted,” etc. Acts 1891, p. 133.

This new section, 4781, was again amended by an act of the General Assembly, approved April 18, 1893, so as to read as follows: “On receipt of his ballot the elector shall forthwith, and without leaving the polling place, retire alone- to one of the places, booths or compartments provided, to prepare his ballet. He shall prepare his ballot by crossing out the groups he does not wish to vote, by drawing a line or lines lengthwise through a part or all of the column of names in the rejected groups — a partial erasure of a group by lines lengthwise of the column, or in any other manner than by the erasure of a name to substitute another, to be taken as a rejection of the whole- group — and then nmake all changes on one grotip by striking out the name or names of candidates he does not wish to vote for, and write the name or names of his choice underneath, so that the remaining part shall éxpress his vote upon the question submitted. After preparing his ballot, the elector shall fold the same so that the face of the ballot will be concealed and the initials of the judges may be seen. He shall then vote forthwith and before leaving the polling place,” etc. Acts 1893, p. 156.

This law of 1893 was in force when the general election of 1896 was held and by it the validity of ballots east at that election must be determined. This section imperatively requires the voter to .cross out every group but one and on that one he must do his voting, and make his scratches, if he desires to make any. Its provisions are stringent, plain and mandatory. Nothing but an official ballot so prepared was a lawful ballot under the act of 1893. The learned counsel for contestee relies upon section 4678 of Revised Statutes 1889 to uphold the validity of these rejected ballots. This section was first adopted March 23, 1863, and has been retained in all the general revisions down to and including that of 1889. When that section was adopted we had not adopted the Australian ballot system. There was but one group upon any ballot. It had reference to the system of balloting then in vogue, and to those cases only in which the elector by oversight or mistake inserted two names for the same office on his ticket. That section is not applicable to the amended law which provided for grouping the various candidates upon one ballot and requiring all his voting to be done under one caption and in one group.

But it is urged that granting that it is the evident purpose of the law that the voter should cross out every group save the one on which he does his voting, his neglect to do so will not render his ballot so unlawful that it must be rejected; that-this provision is merely* directory and not mandatory. Many cases are to be found in which the courts have drawn a distinction between mandatory and directory statutes and provisions of statutes. Without stopping now to cite the various decisions, we think it can be safely asserted that where the provision of a statute is the very essence of the thing which it requires to be done it is imperative or mandatory.

Little assistance can be derived from the generalization of authors or courts on the subject. When the legislature has made such particular, stringent provisions as to the duty of the voter as in this section, 4178, as amended in 1893, we hold the statute is mandatory or meaningless. Three times in six years the legislative mind was directed to the subject of the preparation of the voter’s ballot. With a design and purpose of securing to the voter his independence and freedom in the exercise of his political rights, protect him from fraud and intimidation, the legislature adopted and from time to time has amended this Australian ballot law. The language is imperative. It says “He shall cross out the groups he does not wish to vote.” Directs how he shall do it. To hold such language merely directory would frustrate the essential principle of the law. Contemporaneous construction has been that the judges reject ail ballots on which two groups remain unscratched, and such in our opinion is the evident meaning of the law. The force of this contention, however, is sought to be broken by the fact that the independent group contained only one name. We. hold that “a group” in this section consists as well of one name under a distinct caption, as it would if there had been a name for each office on the ballot, and if we would reject the latter, .so we must the former. By leaving two of the “groups” unscratched or unerased, in any manner whatever, these voters in the contemplation of law voted two tickets as much so as if they had each deposited two distinct ballots under the system previous to the adoption of the Australian ballot. The erasures on the Bepublican ticket may be evidence that they intended to vote that ticket, but the total absence of any mark or scratch whatever upon the Independent ticket as unerringly indicates an intention to vote that ticket also, and no voter is allowed to vote two tickets, and when he does there is no way to determine what his intention is, and both must be rejected. There is. no occasion whatever for bemoaning the supposed wrong inflicted upon “the freeman” by .so doing. The “freeman” who has sense enough to scratch six “groups” or “columns” of candidates out of eight ought to be presumed to have enough to scratch the seventh when that “group” or “column,” as in this case, gives warping of its presence by its caption in heavily leaded type, and if he has not he ought to seek the assistance of the judges to teach him how to scratch.

Another reason why these ballots should'be rejected is that the failure to cross out all the groups but one is the act of the several voters themselves. The ballot was in the form prescribed; it was furnished by the judges and their initials were upon it. No act of the officers contributed to the violation of the statute, but the voter through inattention, ignorance, or purposely, failed to mark out one of the groups, and can complain of no one if he thereby lost his vote. He is in no position to ask protection from the ignorance or fraud of the officers. If he was illiterate the law provides that the judges should instruct him in preparing his ballot.

We hold that the forty-eight ballots, upon which the Independent and Bepublican groups remained tin-crossed or erased, -were properly rejected by the circuit court. As already said, the statute is peremptory and the entire ballot is rendered illegal and void when the plain, positive requirements of the law are disregarded by the voter, as it was in case of these forty-eight ballots, and its illegality is not confined to the office of sheriff as contended for by contestee.

IY. The circuit court refused to hear evidence that at Burfordsville and Grump precincts the judges of election assisted in making out ballots without requiring a preliminary oath as required by section 4784, Acts of 1891, page 135, as amended April 18, 1893. Laws of Mo. 1893, page 164. That section provides: “Any elector who declares under oath to the judges of election having charge of the ballots that he can not read or write, or that by reason of physical disability he is- unable to mark his ballot, may declare his choice of candidates to the judges having charge of the ballots, who, in the presence of the elector, shall prepare the ballot for voting in the manner herein-before provided.’ ’

It will be observed that the notice of counter contest nowhere charges that the electors named therein fraudulently accepted assistance without having previously taken the required oath nor that as a matter of fact they could read or write or were not so disabled they could not mark their ballots. We are asked to hold that the failure of the judges to require such a preliminary oath shall disfranchise the ignorant voter whose illiteracy compels him to call upon them for assistance. Though too ignorant to mark out his own ballot, he is required to instruct the judges in their duties by insisting they must first administer the oath to him. While this statute requires the judges to assist any elector who .declares under oath that he can not read or write, it does not say they shall not assist others that they know of their own knowledge can not read or write. Such cases must often occur, and while the judges should require the oath if they are doubtful of the elector’s inability, still it would be a harsh construction to rule that they were guilty of conduct which should disfranchise the voter if they failed to require such oath when they well know he could neither read nor write. When it is remembered that our election judges are required to be chosen from the opposing political parties and our precincts are small, the opportunities for fraud in a voter thus assuming ignorance are so very slight that we can not believe the legislature could have intended to attach such a penalty for the simple act of aiding a voter to cast his ballot without requiring him to declare under oath what they already knew beforehand. Suppose an elector with both arms cut off, or afflicted with palsy, or blindness, presents himself, and asks to have his ballot prepared by the judges, are we to say that the judges must go through the empty form of administering the oath as to his physical disability'? I think most clearly not. But in any event the mere failure of the officer to perform some prescribed duty, in the absence of any fraud or imposition practiced upon the voters, will not deprive him of his ballot unless the language of the statute allows no other alternative. We think the court correctly held the evidence inadmissible under the allegations of the notice in the counter contest.

V. Again it is urged that the court erred in not permitting the contestee to show that in the case of certain electors the Democratic judges went into the booths and assisted certain electors therein named. Section 4784, a part of which has already been copied, contains this proviso: “Provided, however, that the provisions of this section shall not be construed to allow any judge or judges of any election to enter a booth for the purpose of assisting any elector in preparing his ballot. Such .judges, after reading to the elector the contents of the ballot, shall, without leaving their respective positions, prepare such ballot as the elector may dictate.” Acts 1893, p. 164.

Here again was a positive violation of the law. The judges had no right in the booths, and yet there is no allegation that this misconduct was in furtherance of a design to unduly influence these electors, or that they were in‘fact imposed upon, or any advantage taken of them by the judges. The judges rendered themselves amenable for a violation of the law, but the question here is, shall this unlawful action of the judge disfranchise the illiterate voter for whose protection the statute made provision? Must he suffer because those designated by the law to instruct him violate the law? To so hold would establish a precedent which unscrupulous partisan officials might seize upon to nullify a perfectly fair and honest election. It is a sound distinction of the law which disfranchises a-voter for his own failure to obey the plain and positive rules adopted to secure an honest expression of the will of the people, and that which refuses to punish him for the neglect or misconduct of an officer, over whose conduct he has no control, as to some provision which the legislature has not deemed of sufficient importance to declare a noncompliance therewith shall avoid the election or render a ballot illegal and void. This objection can not, for these reasons, be sustained.

VI. There was a misnomer of Eobert Buelteman in contestor’s notice. The notice gave his name as Henry Buelteman. The circuit court unquestionably had the power to have permitted an amendment of the given name and have heard the testimony as to his non-residence. As the exclusion of this voter does not determine the contest it is not necessary to discuss the point further. The right to amend in election contests was fully considered and affirmed by this court in Nash v. Craig, 134 Mo. 347.

By the official count respondent received two thousand, four hundred and forty votes (2,440) and appellant two thousand, four hundred and forty-nine (2,449) votes. It was admitted that by the official count of Steimel precinct respondent received one hundred and four (104) votes and appellant three hundred and eight (308) votes. According to the recount of Steimel precinct, respondent or contestor received one hundred and thirty-nine votes (139), and appellant three hundred and twenty-five .(325) votes, a gain of thirty-five votes for contestor, and of seventeen votes for contestee. The court made a finding that eight ballots counted for contestee were cast by illegal voters, among whom was Robert Buelteman. No exceptions were taken to this finding save as to Robert Buelteman, so that the total vote of contestee must be reduced by eight on this account. It was shown that two illegal votes were cast for contestor by McO-uire and Wilson, and these must be deducted from his total. The following tabular statement shows the result.

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If to this we add the result ascertained by the recount for appellant and consider the whole of that return in evidence, we would have added to the above totals the following:

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As ifc does not change the result we have not considered whether the whole certificate is a part of the record or not. As appellant challenges and objects to it, we leave it out of consideration.

The result is, respondent was elected collector of the revenue by a majority of fifteen votes.

The judgment is affirmed.

Sherwood, Burgess and Brace, JJ., concur. Barclay, C. J., and Macearlane and Robinson, JJ., dissent.