Straughan v. Meyers

187 S.W. 1159, 268 Mo. 580, 1916 Mo. LEXIS 99

• Court: Supreme Court of Missouri
• Decided: July 18, 1916
• Status: Published

Opinion

REVELLE, J.

— This is a contested election case. At the last general election in Ste. Genevieve County, held on November 3, 1914, the contestant and contestee were opposing candidates for the office of presiding judge of the county court of said county. Both parties are elegible under the law to hold the office.

The notice and counter notice of contest, in addition to the necessary averments as to the nomination of candidates and the holding and results of the election as declared by the election officials, contain numerous averments charging specific objections to many of the votes cast, based on the alleged non-residence, non-age, and other disqualifications of the voters, as well as numerous irregularities of many of the ballots.

In addition to the foregoing grounds of contest, the contestant attacks the constitutionality of the Act of the General Assembly, approved March 14, 1913, relating to the manner in which voters who are absent from their place of residence may cast their vote. [Laws 1913, p. 323.]

Applications to the circuit court were made by both parties for writs directed to the clerk „of the county court, commanding him to open, count, compare with the lists of voters, and examine the ballots in his office which were cast at the election in contest, and to certify the result of such count back to said court. This was done, and according to the count made by the county clerk, as shown by his report, the contestant received a total of 1121 votes, and the contestee received a total of 1130 votes, a majority of nine votes in favor of contestee.

■ A certificate of election was accordingly issued to contestee, and he was duly commissioned as presiding judge of that court.

Such other facts as are material and essential to a determination of the questions presented will be noted in the opinion.

In this action the legislative act (Laws 1913, p. 323) relating to absent voters and prescribing the manner in which they may vote, is challenged as being obnoxious to the Constitution, and the facts are such that a determination of this question is essential to a decision. The title to the act is:

“AN ACT to enable railroad employees, traveling salesmen and other persons, required by their duties or occupation to be absent from their voting precincts on the day of any general election, to cast their votes wherever within the State they may be and providing for the counting of such votes and prescribing penalties for violations thereof.”

The body of the act provides that employees of railroad companies, traveling salesmen, college students, and all other persons who are qualified electors of this State, and who, by reason of their business, occupation or duties, are, on the day of the general election, unavoidably absent from the county in which they reside, may cast their ballots in any voting precinct of the State where they may present themselves on the day of the election. The act then proceeds to name the conditions and regulations under which the absent voter may avail himself of the privilege, and enjoins upon him certain duties, among which are: that he present himself during voting hours and make and subscribe, before one of the election judges, an affidavit relative to his residence and qualifications as an elector; the reasons of his absence from his county; and that he has not voted and will not vote elsewhere. This being done the act provides that he is then entitled to a ballot of a certain and specifically defined kind, to-wit, a blank ballot with the names of all the judges written on the back thereof. This ballot he is then authorized to mark, fold and hand to the judge in like manner as a resident voter. The act further provides that such ballot shall not be deposited in the ballot bos nor entered upon .the poll books, but shall together with the affidavit, be sealed in an envelope, which shall be signed by one of the judges and be filed with tbe clerk of tbe county where the ballot was cast, and be by him transmitted to the clerk of the county where the voter resides. Ample provisions are then made for recording and counting such votes in the county of the voter’s residence, as well as for the preservation of the ballots and penalties for violation of the act.

The court nisi held the act invalid upon the ground that it contravenes the 12th subdivision of section 53, article 4, of the State Constitution, which is as follows:

“The General Assembly shall not pass any local or special law for the opening and conducting of elections, or fixing or changing the places of voting.”

This conclusion was a sequence of the construction which the court placed upon the act, that, by its terms and title, it was applicable only to the city and county of St. Louis, and was, therefore, local and special. The conclusion is unassailable if the construction placed upon the act be correct, but in this we disagree with the learned trial judge.

The title, instead of limiting the effect of the act to those two subdivisions and persons residing therein, in no uncertain terms, and, as clearly as language can express, makes it applicable to all counties, and all absent electors, wherever they may reside or be on the date of election, provided both places are in this State. In fact, the title so unmistakably expresses the applicability of the act to the whole State that it would be more- or less defective as a title to an act applicable only to the city or county of St. Louis.

It is urged, however, that the terms of section 1 do so limit and restrict it. It is true this section is not drawn with the nicety and precision which characterizes the work of a linguist, but its intent and meaning is not difficult of understanding when read with other parts. The worst-that can be said of it is, that certain of its terms are ambiguous, and in that case we are at liberty to go to the title as .a clue or guide to the intention of the Legislature. The title is clear, unambiguous and expressive, and, when invoked as an aid in the construction, removes all doubt as to the meaning. We have frequently said that doubtful words of a statute may be enlarged or restricted in their meaning to conform to the true intent of the law makers, when manifested by the aid of sound principles of interpretation. [State ex rel. Aull v. Field, 112 Mo. 554; Glaser v. Rothschild, 221 Mo. l. c. 211; Bingham v. Birmingham, 103 Mo. 345.] In dealing with subjects of this character we have also other well-established rules which cannot be ignored. We are reluctant to declare statutes unconstitutional, and we resolve all doubt in favor of their validity. We indulge the presumption that the Legislature did not intend to violate the organic law of the State, and we place the burden upon him who asserts the contrary to convince us. Acts of the Legislature and the provisions of the Constitution must be read together, and so harmonized as to give effect to both, when this can be consistently done.

We are of the opinion that the Legislature clearly intended this law to be of general application, and that it is not special or local, and, therefore, not offensive to section 53, article 4, of the State Constitution.

It is next urged by respondent that the act violates that part of section 2, article 8, of the State Constitution, which reads as follows:

“Every male citizen . . . possessing the following qualifications shall be entitled to vote at all elections by the people. . . . He shall have resided in the county, city or town where he shall offer to vote at least sixty days immediately preceding the election. ’ ’

It is clear that this section does not undertake to prescribe the manner in which a choice shall be expressed, or a vote cast, or the ballots prepared, deposited or counted; but merely the qualifications of the voters. It is true, - under this provision, a person can vote only in the place of his residence, but this constitutes no inhibition against any particular method the Legislature may provide to enable bim to so vote. The word “vote” means suffrage, voice or choice of a person for or against a measure or the election of any person to office. It is not synonymous with “ballot,” which is merely the means or instrument by which the person votes, or rather expresses his choice or exercises his right of suffrage. [Clary y. Hurst, 138 S. W. 566; State ex rel. v. Blaisdell, 119 N. W. 360; State v. Custer, 66 Atl. 306; Gillespie v. Palmer, 20 Wis. 544; Davis v. Brown, 34 S. E. 839.]

Had this measure provided that such absent voter could vote, that is, could exercise a right of choice for or against matters relating to the place where he did not reside, for instance, candidates of a county or district other than that of his residence, there would be no doubt of its invalidity; but it does not so undertake. The act specifically provides that the ballot shall not be deposited in the ballot box, nor entered upon the poll books, but that same shall, under certain safeguards and regulations, be transmitted to the clerk of the county where the voter resides, and be there counted. The act of legally voting, as the term is understood in law, embodies the right to have the vote counted. This act does not undertake to authorize a person to vote in a place other than that of his residence, but merely provides a system or method through which he may vote in the place of his residence.’

It is not class legislation, because it applies alike to all persons who, by reason of their business duties, are unavoidably absent from their county. It is our opinion that this classification is not objectionable, and that the act does not violate the constitutional provisions heretofore pointed out.

It is next said that the act offends against that part of section 3, article 8, of the State Constitution, which provides that all ballots shall be numbered in the order in which they shall be received, and the number recorded by the election officers on the list of the voters opposite the- name of the voter who presents the ballot. ,

The only provision in this act bearing upon this phase is the following: “The county court . . , or board of election commissioners . . . shall open said envelope or envelopes and record said ballot upon the poll sheet of the proper precinct or ward in their possession in' the same manner as clerks of election record votes.” There is nothing whatever in the act providing that the ballots of the absent voters shall not be numbered; nor is there anything in the act which would make the numbering thereof for the purposes contemplated by the Constitution inconsistent with its provisions. The most that could be said is that this part of the Constitution requiring ballots to be numbered is as much a part of this act as if it were employed therein; and there being nothing in the act inconsistent therewith, it cannot, for this reason, be said to be in conflict with the Constitution. In fact, the provision of the act heretofore quoted can reasonably and logically be so construed as to indicate an intention on the part of the Legislature that these ballots should be numbered by the county court or the board of election commissioners. These officers are election officers within the meaning of this provision of the Constitution, and there is nothing therein contained which prevents the numbering of these ballots by such officers. This constitutional section does not undertake to point out what particular election officers shall perform this duty. It must also be borne in mind that the purpose of this section is to provide a means of contesting elections and so preserving evidence that it may be used for this purpose. The provisions of this act, when construed, as above, accomplishes the very object intended by the section.

Having disposed of the constitutional objections we come now to the question of construction from another angle. Are the requirements that the voter make and subscribe to the affidavit, and that the ballot have the names of all' the judges on the back thereof, mandatory -or merely directory, and does failure of compliance in these respects vitiate the ballot? In construing statutory provisions the object and purpose which induce their enactment and the mischief they are intended to prevent must be given effect (Spitler v. Young, 63 Mo. 42), as must also the results and consequences' of a proposed interpretation. [Glaser v. Rothschild, 221 Mo. l. c. 210.]

Counsel for appellant urge that the doctrine announced in Bowers v. Smith, 111 Mo. 45; Hehl v. Guion, 155 Mo. 76; and Gass v. Evans, 244 Mo. 329, that the omission of the initials' of the judges from the ballot, under the general election laws, does not invalidate the ballot, should be applied to these requirements. We again approve the conclusion reached in those cases, as well as the reasons which induced it; but do they apply here? As with statutes, so with decisions, their underlying reasons must not be overlooked. The conclusion in those cases is based chiefly upon the propositions: (1) That when the legal voter has performed his own duty, and ;his ballot has been received and finally deposited in the box, and his name entered in the poll books, this being done in his. presence, he is justified in doing nothing more, and that his rights should not be defeated through the remissness and dereliction of the election officers. (2) That the object in. requiring the initials on the ballot “was. not to guard against the counting of an illegal ballot, but......to guard against fraud while the election was in progress.” In the leading one of these cases (Hehl v. Guion, supra) the court announces that this requirement is addressed to the election judges, and says to them: Examine the ballot to see' if it is properly endorsed, and if not, do not deposit it; do not mislead the voter, but give him another ballot that is properly marked, and. while he is present, and let him cast it. This, officer, is your duty, and the opportunity for its performance is readily at hand. If you do not accept the opportunity and do not do your duty when the voter has done his, your conduct shall not defeat his -rights.

It must also be remembered that, under the general election laws, the regular election officers are residents of the immediate community in which those entitled to vote also reside, and have more or less knowledge of the qualifications of the voters, as have' also the local challengers and others having the right to be present and participate.

Let us now consider the requirements and character of the act under review. In the first place, it was enacted to provide the means and machinery through which a certain class of citizens might enjoy a privilege which, under the general laws, could not be exercised. Its beneficiaries are of one class and specially favored, and they vote under conditions altogether different to others. The act itself declares (Sec. 1) that they can avail themselves thereof only upon the conditions and under the regulations spécified. As early as Smith v. Haworth, 53 Mo. l. c. 89, this court said:

“It is a very salutary rule, long sanctioned by reason, experience and authority, that special laws, that give origin to new and unexpected departures from general rules, should be closely scrutinized, and the powers therein conferred strictly construed.”

When we turn to the act we find that a stranger to the election officers and residents is authorized to present himself for the purpose of securing something which under the general laws only a resident is entitled to, and something which is carefully guarded by the law, namely: a ballot of a certain form. The act provides that before he is so entitled he, himself, shall perform certain duties. It prescribes that he, not the election officers, shall make and subscribe to an affidavit, in which he recites the conditions which entitle him to a ballot. When he has performed this duty he is then, and not before, entitled to receive a ballot of a specified kind, to-wit, one bearing the names of all the election judges. With this ballot the election judges from whom he receives same have nothing whatever to do in the way of finally accepting or rejecting same. They perform merely the ministerial duty of preserving and forwarding same to the authorized election officers. When this ballot is received at the place of the voter’s residence and by the election officers who are authorized to act thereon, they have no opportunity to give him another or different ballot, as has the election officer under the general election laws. In fact, the election officers from whom he receives his ballot are but his agents for the purpose of enabling him to get his ballot to the proper election officers. For the purpose of his ballot the authorized election officers are the members of the county court or board of election commissioners at the place of • his residence, and when his ballot reaches them they have neither power nor opportunity to do anything towards meeting the requirements created by the act and enjoined upon him and his agents. This being a special privilege conferred upon such person, and being available only under certain conditions, it seems to us that until these conditions are complied with the privilege cannot be exercised and that the voter has not performed his full duty until they have been met. Special privileges usually enjoin additional duties, and so it is with this act.

Again, when the ballot of the absent voter is received and counted, it is not done by the local resident election officers, who generally know the qualifications of the voters, but by officers whose opportunity to so know is not equally available. For these reasons it is not strange that the Legislature would purposely provide regulations and safeguards different to those under the general election laws and where the conditions are different.

It has been urged against this act that it is vicious and dangerous, because capable of being made an instrument of fraud, and, therefore, a means of defeating the public will. In the absence of proper safeguards we can conceive of such consequences, but when the provisions of the act are strictly complied with we think they afford a fairly sufficient shield against this. These safeguards should, however, not be destroyed by construction, but should be carefully preserved, in order to give life, force and beneficent effect to the act. The affidavit of the voter and the names of the judges where the ballot is procured are essential to guard against fraud and to properly identify the ballot and voter, as well as to warrant the county court or election board in acting thereon. Unlike the requirement of the general election law that the ballot contain the initials, the object of these requirements is. to guard against the procuring and counting of illegal ballots, rather than against fraud while the election is actually in progress. It is our opinion that before a voter can avail himself of this special privilege it is incumbent upon him to see that these provisions are complied with, and that failing to so do his ballot should not be counted. These provisions relating to the duties of the authorized election officers after the receipt of a properly prepared ballot should be construed as were the provisions of the general election laws in the cases heretofore cited.

In the instant case the trial court rejected the ballots of sixteen absent voters without regard to their regularity or irregularity, basing his action upon the alleged invalidity of the act. Of the sixteen thus rejected, thirteen were deducted from the total vote of the contestee, and three from the total vote of contestant. Of the thirteen deducted from contestee the record discloses that eight were cast at Commerce, Scott County, Missouri, and that no affidavit was made or subscribed to at that time, and that the ballots did not have the names of all the judges endorsed thereon. Sometime after the date of the election, and before the ballots had been forwarded, one of the persons who had acted as an election judge at that precinct, went to the county where these parties were employed and there undertook to take their affidavit. This was after the day of the election and at a time when his functions as a judge had terminated.

Another of the votes deducted from contestee’s total was that of E. P. Owen, who did not subscribe to the affidavit, and with whose ballot no affidavit was transmitted; also the vote of one L. W. Donze, with whose ballot appears an affidavit, but which discloses that it was made in a county different to the one in which the ballot was cast; also the vote of J. J. Shafer, whose ballot did not have indorsed there.on the names of all the judges, and with whose ballot was a purported affidavit to which said Shafer had not subscribed.

The votes of the absent voters M. H. Harmon and A. E. Lottes, whose ballots are in regular and proper form, and with which were transmitted sufficient affidavits, were also deducted.

From the total vote of contestant the court deducted three votes of absent voters. Of these one was cast at Commerce under the same conditions and with the same irregularity as the eight heretofore mentioned as having been deducted from the total of contestee; also the vote of C. B. Rickard, whose ballot did not have indorsed thereon the names of all the judges; also the vote of Lon Graves, whose ballot and affidavit are in regular form and free of irregularity.

In our ■ opinion the court should have deducted from contestee’s total vote eleven, 'instead of thirteen, votes; and from contestant’s total two, instead of three, these being the votes of absent voters whose ballots wholly failed to conform to the requirements, which we hold to be mandatory.

In addition to the above-mentioned changes in the official returns the court found that the election judges wrongfully rejected and refused to count for contestant two votes which had been cast for him, and which should have been counted; also that they received and counted for Contestee eight votes which were irregular and not entitled to be counted, because the persons casting same were disqualified as electors, either because of non-residence or non-age. The court further found that nine votes should he deducted from-the total vote of contestant, because the persons casting same were likewise disqualified as electors on account of non-residence and non-age.

Besides the persons whose votes the court found to be illegal on account of disqualification, both the contestant and contestee challenge in their pleadings the votes of numerous other electors, but these grounds were rejected because of failure of proof.

The record in this case is necessarily somewhat lengthy, and it would serve no useful purpose, and would unduly lengthen the opinion, to enter into a discussion of the court’s findings relative to the qualifications or disqualifications of the various challenged voters. It is sufficient to say that we have carefully gone through the entire record and are entirely satisfied with the findings and conclusion of the trial court on these questions. The trial court reduced its findings to writing, and we have had the benefit thereof, and it is due this learned judge to say that his findings in these respects are, in our opinion entirely correct and disclose such fairness that same cannot be challenged. In fact, we find but little complaint from either party relative thereto.

By deducting the thirteen votes of absent voters from contestee’s total, and three of such votes from contestant’s total; and by adding to and subtracting from the remaining vote the number which the court found should be deducted from each party on account of disqualifications of certain persons who voted, the result as found by the trial court was as follows: Contestant, 1111 votes; Contestee, 1109 votes. Making the calculations according to the views herein expressed, the result is: 1112 votes for contestant; 1111 votes for contestee; leaving contestant a majority of one vote.

From this it follows that the judgment of the lower court that the contestant was legally elected at said election to the office of presiding judge of the county court of Ste.’ Genevieve County, Missouri, should he, and the same is, affirmed.

Blair, Walker and Graves, JJ., concur; Bond, J., concurs in result; Faris, J., dissents; Woodson, C. J., absent.