Whitener v. Turnbeau

602 S.W.2d 890, 1980 Mo. App. LEXIS 2770
CourtMissouri Court of Appeals
DecidedJuly 22, 1980
DocketNo. 41070
StatusPublished
Cited by10 cases

This text of 602 S.W.2d 890 (Whitener v. Turnbeau) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitener v. Turnbeau, 602 S.W.2d 890, 1980 Mo. App. LEXIS 2770 (Mo. Ct. App. 1980).

Opinion

SNYDER, Judge.

This is an election contest case. Contestants-respondents challenged the results of a Marquand-Zion R-VI School District election in which a school tax proposition initially lost by one vote, but upon recount, passed by one vote. After the recount resulted in passage of the tax, intervenor-ap-pellant filed an answer in which he challenged the qualifications of four persons who voted absentee in the election. Respondents’ petition contesting the election was filed before the recount was taken. Respondents supported passage of the tax. After the result of the recount was announced, they filed a motion to dismiss for failure to state a claim upon which relief may be granted, directed both to their own petition and the allegations of the interve-nor’s answer. The motion was granted by the trial court on the ground that voters’ qualifications may not be collaterally attacked in an election contest as the interve-nor attempted to do in his answer. The intervenor appealed.

Appellant charges the trial court erred in: (1) granting respondents’ motion to dismiss; (2) failing to find that the absentee vote of Larry Masters was invalid because he was not properly registered; (3) refusing to compel Larry Masters to disclose how he voted in the election, as he was an illegal voter; and (4) ordering all costs to be taxed against appellant, when a substantial portion of the costs were attributable to a recount of the ballots before his intervention.

The determinative issue is whether under Missouri law voters’ qualifications may be challenged judicially in an election contest. This is a case of first impression under the Comprehensive Election Act of 1977. This court finds voters’ qualifications may not be so challenged and affirms the trial court’s judgment dismissing the petition and intervenor-appellant’s answer. The cause is remanded, however, with instructions to the trial court to assess the costs which accrued prior to appellant’s intervention against respondents, and the costs which accrued after intervention against appellant.

The election was held on August 8, 1978. The original count taken in the election was 397 “yes” and 199 “no” votes, which failed to meet the two-thirds requirement for passage of the levy. Contestants Larry Whitener and Cherilyn Stephens filed a petition to contest the election on September 8, 1978. A recount of the votes was taken on October 19, 1978 and an additional “yes” vote found, thus providing the necessary majority for passage of the tax. The recount was requested on behalf of the Mar-quand-Zion R-YI School District in a letter [892]*892received by the clerk of the Circuit Court of Madison County from Robert J. Blackwell. The request was expressly made pursuant to § 115.601, RSMo 19781 which grants a right to a vote recount when an election margin is less than one percent.

Respondents filed an amended petition on October 25, 1978 contesting the election, and at the same time filed a motion to dismiss their own petition because the recount resulted in passage of the tax, the result which they supported. Appellant Dewey Barks intervened by leave of court and, also on October 25, 1978, filed an answer in which he alleged that four absentee voters were not qualified to vote. Two days later the respondents filed a separate motion to dismiss for failure to state a claim upon which relief may be granted directed to their own petition and appellant’s answer. This appeal involves only one absentee voter, Larry Masters, who, according to appellant, was not properly registered at the time of the election.

The trial court granted respondents’ motion to dismiss after hearing the evidence from respondents in support of their motion and from appellant in support of his offer of proof of irregularities other than the qualifications of voters. The decision of the trial court must be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Appellant’s first point on appeal is that the court erred in dismissing the cause of action on the ground that an action to declare Larry Masters’ vote invalid constituted a collateral attack on Masters’ qualifications to vote. He claims he is given the right to contest the election under § 115.-553.2, which states, “The result of any election on any question may be contested by one or more registered voters from the area in which the election was held. . . .” He concedes that the Court of Appeals, Western District, ruled this point against his position in Kramer v. Dodson, 543 S.W.2d 792 (Mo.App.1976). In Kramer the court held that the election statutes then in effect provided a comprehensive system for removing from the rolls those not qualified to vote. The court also noted the general rule that “ ‘names of voters entered upon a registration book cannot be stricken therefrom in a collateral proceeding.’ [Citing 25 Am.Jur.2d Elections, § 110, p. 796].” Kramer, supra, 795. Finally, the Kramer court held that the statute then in effect, § 124.010, RSMo Supp. 1975, did not specify the qualifications of a voter properly registered at the time of the election as a ground for an election contest.

Appellant contends this court should not follow the rule laid down in Kramer v. Dodson, supra, because: (1) it is unfair to require a citizen to rely on canvassing by election judges and not to allow him to challenge a vote judicially; (2) the case was decided prior to the Comprehensive Election Act of 1977 and thus according to statutes which have been repealed; (3) the 1977 laws do not preclude a judicial attack on voter qualifications; and (4) this court has reviewed questions of voter qualifications in Barks v. Turnbeau, 573 S.W.2d 677 (Mo.App.1978). He argues that refusing to allow an attack in this case would injure him and the public without due process of law.

Turning to appellant’s first argument, it is clear that he is not forced to rely on the election judges to determine the qualifications of absentee voters, but may make his own investigation into compliance with residency requirements. Section 115.289 provides that as applications for an absentee ballots are received, the election authority must post in a conspicuous place, at the entrance to the office of the election authority, a list of the applicants’ names, voting addresses, and mailing addresses. Any person is allowed to copy the list. Section 115.303 provides that any absentee vote may be challenged by a registered voter. If appellant had been sufficiently interested in the qualifications of the absentee voters, he [893]*893could have made his own investigation of the absentee voters’ compliance with residency requirements.

Appellant’s second argument, that Kramer v. Dodson, supra, is distinguishable because it interpreted statutes now repealed, is equally without merit. It is true that the statutes are different. The applicable statute in Kramer, § 124.010, RSMo Supp.

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Bluebook (online)
602 S.W.2d 890, 1980 Mo. App. LEXIS 2770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitener-v-turnbeau-moctapp-1980.