Bowers v. Smith | Cases | Westlaw

The election at which these parties stood for the office of sheriff resulted in favor of defendant, Mr. Smith, as shown by the original and by the final returns. The latter were made by the clerk of the county court upon a recount of the ballots, received from the various polling precincts in the county. The recount was had at plaintiff's instance, after this contest began, and was conducted as provided by the law on that subject. Rev. St. 1889, §§ 4721–4726. Both parties rely on the application to this controversy of the recent statute concerning elections, (sections 4756–4794, Rev. St. 1889,) commonly known as the “Australian Ballot Law,” as first enacted in this state. It is thus conceded to apply to Sedalia, as a city of over 5,000 population. The points of difference to be determined on this appeal relate to features of the election in that city held under that law. We need not pause to state the particulars of the rulings in the trial court, raising the material questions involved, but shall proceed at once to the merits of the dispute.

1. Plaintiff claims that the entire vote of Sedalia precinct should be ignored in the final count because the official ballot, prepared by the county clerk and used at that precinct, contained (among others) the names of the nominees of the Union Labor party, and that that party had not polled the requisite 3 per cent. of the entire vote at the last previous election, as required by section 4760, Rev. St. 1889. *762 Conceding (without investigating) the fact on which that claim rests, does it follow that the vote of the precinct should therefore be discarded? In interpreting the statute in question, it must be remembered that its adoption here brings it into subordination to the fundamental law of Missouri, and that prior decisions elsewhere, construing similar enactments, cannot properly be followed, if inconsistent with established principles of our existing law. By our constitution, general elections are to be held at certain fixed times, and the right of suffrage is secured to every citizen possessing the requisite qualifications. The new ballot law cannot impinge upon the right of voters to select their public servants at such elections, or be so interpreted as to limit the range of choice, for constitutional offices, to persons nominated in the modes prescribed by it. Nominations under it entitle the nominees to places upon the official ballots, printed at the public expense; but the Missouri voter is still at liberty to write on his ballot other names than those which may be printed there. The statute recognizes this right by requiring blanks for such writing, next the printed names. Rev. St. 1889, § 4773. In this respect our law differs materially from the English act of 1872, under which no actual poll of voters was held, unless more candidates were formally nominated than there were vacancies to be filled. Even if this difference did not exist between the English statute and ours, we should feel reluctant to follow some of the cases construing the former, (Mather v. Brown, 1876, 1 C. P. Div. 596; Moorhouse v. Linney, 1885, 15 Q. B. Div. 273,) in view of their apparently wide divergence from the principles recognized here in dealing with the subject of elections. But, without pursuing that line of remark further, it is enough now to declare that we do not regard those cases as furnishing precedents to govern this appeal. It must have been already noted that the questioned act of the county clerk consisted of admitting names to the official ballot, not of excluding any. There is a substantial difference in principle between admitting and excluding such names. Under the latest English act before us, the rulings of such officers, admitting nominees to the official ballot, are declared to be final; but rulings denying such admission are subject to review by other authority. An error in adding a name to the ticket is vastly different, in its practical consequences, from an error made in rejecting a nominee. In our statute it is provided that “whenever it shall appear by affidavit that an error or omission has occurred in the publication of the names or description of candidates nominated for office, or in the printing of the ballots, the circuit court of any county, or the judge thereof in vacation, or, if the circuit judge is then absent from the county, a judge of the county court, may, upon application by any elector, by order, require the clerk of the county court to correct such error, or to show cause why such error should not be corrected.” Rev. St. 1889, § 4778. In accordance with the spirit of the law prevailing in this country respecting popular elections, we think it should be held that where a candidate for public office causes no timely objection to be made, as required by the section quoted, he must be regarded as having waived any objection that may exist to the presence on the official ballot of names not properly entitled to be there. To adopt the construction urged by plaintiff would make every error of judgment by the county clerk in admitting candidates to places on the ballot a ground for disfranchising the voters of the locality where the ballots were used. Such result we do not think was contemplated by the statute, and (as remarked in a recent decision) it is proper to consider the effect and consequences of any proposed construction of a law, in ascertaining what was probably the intent and purpose of its framers. State v. Hope, (1889,) 100 Mo. 361, 13 S. W. Rep. 490. The ballot reform law was intended as an improvement of the machinery employed to express the popular will in the choice of public officers. It should be construed in a manner to promote, not destroy, the objects in view in its enactment. That it was intended to operate as now claimed by plaintiff we do not believe; for, if it did, it would, in many instances, defeat the expression of the people's choice, instead of facilitating it. We therefore hold that the printing of the names of the Union Labor nominees on the official ballot constitutes no ground to reject the returns of Sedalia precinct.

2. It is next asserted that the election is invalid because the vote in that precinct was received at two polling places, by two sets of judges and clerks, instead of at one poll. It appears that the county court had designated Sedalia city as one precinct for election purposes, but that the votes thereof were taken at two polls in the court–house, by two sets of officers. At one poll the voters whose surnames began with letters “A” to “K” voted; at the other, those with the letters “L” to “Z.” The windows by which the polling booths were reached were about 75 feet apart, both fronting on an outer portico of the court building. It is supposed that this irregularity, if it was such, “renders the vote of the precinct invalid and illegal.” Whether it was an irregularity at all is somewhat questionable, but, assuming it was, we imagine its effect is not so serious as plaintiff apprehends. Undoubtedly, some irregularities in the conduct of elections are of so grave a nature as to invalidate the whole return of the precinct at which they occur; as, for example, the omission of registration, (Zeiler v. Chapman, 1874, 54 Mo. 502,) or of statutory notice, (McPike v. Pen, 1872, 51 Mo. 63.) In determining which are of that kind, the courts aim merely to give full effect to the intent of the law–makers in that regard, aided by established rules of interpretation. If the law itself declares the specified irregularity to be fatal, the courts will follow that command, irrespective of their views as to the importance of the requirement. Ledbetter v. Hall, (1876,) 62 Mo. 422. In the absence of such declaration, the judiciary *763 endeavor, as best they may, to discern whether the deviation from the prescribed forms of law had or had not such a vital bearing on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is deemed fatal; otherwise it is not. It has been sometimes said, in this connection, that certain provisions of election laws are mandatory, and others directory. These terms may, perhaps, be convenient to distinguish one class of irregularities from the other. But, strictly speaking, all provisions of such laws are mandatory, in the sense that they impose the duty of obedience on those who come within their terms. But it does not, therefore, follow that every slight departure therefrom should taint the whole election. Courts justly consider the main purpose of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end; and, in order not to defeat the general design, are frequently led to ignore such innocent irregularities of election officers as are free of fraud, and have not interfered with a full and fair expression of the voters' choice. Gumm v. Hubbard, 97 Mo. 311, 11 S. W. Rep. 61; Davis v. State, (1889,) 75 Tex. 420, 12 S. W. Rep. 957; Soper v. Board, (1891,) 46 Minn. 274, 48 N. W. Rep. 1112; Wheelock's Case, (1876,) 82 Pa. St. 297; 6 Amer. & Eng. Enc. Law, p. 325, and cases cited; Fowler v. State, (1887,) 68 Tex. 30, 3 S. W. Rep. 255. In the case before us it is not asserted that the supposed irregularity (of having two polling places in the precinct instead of one) had any bearing upon the result of the election, to the prejudice of plaintiff, and we are unable to conjecture how it could, in any wise, have redounded to his disadvantage. We think it furnishes no sufficient reason for excluding the vote of that precinct, in the circumstances shown. The foregoing rulings make it unnecessary to discuss other points suggested by the facts or by counsel. No other objection to the finding of the circuit court appears to demand comment. The judgment is affirmed. All the judges of this division concur.

Rehearing denied.