Gumm v. Hubbard | Cases | Westlaw

This is an election contest between Caleb Gumm and Joel D. Hubbard, who were candidates for the office of county clerk of Morgan county at the election held on the 2d November, 1886. The official count gave Hubbard 1,103, and Gumm 1,096 votes, a majority of seven for Hubbard. After Gumm gave notice of contest, Hubbard gave a like notice, and the circuit court gave judgment for Hubbard, the contestee.

1. Gumm, the contestant, objected to the introduction of any evidence in support of a part of contestee's notice. The court did not pass upon the question of time, but took it under advisement until the close of the case, and the record does not show that any ruling was then made upon the objection. The objection, however, was not well taken. The part of the notice to which the objection was made states that at a designated precinct 12 persons, giving their names and the number of their ballots, voted for Gumm, and that the ballots were counted for him; “that each and all of said ballots had written upon them certain writing and written words other than the designations of the offices to be filled, and other than substituted names of persons voted for; wherefore said ballots were illegal and fraudulent, and should not have been counted.” The same part of the notice goes on to make a like charge as to votes at other designated precincts; omitting, however, the names of the voters, and numbers of the ballots. Section 5493, Rev. St., provides: “Said ballot shall not bear upon it any device whatever, nor shall there be any writing or printing thereon, except the names of the persons, and the designations of the office to be filled; leaving a margin on either side of the printed matter for substituted names. Each ballot may bear a plain written or printed caption thereon, expressing its political character, but on all such ballots the caption or head-lines shall not, in any manner, be designed to mislead the voter as to the name or names thereunder. Any ballot not conforming to the provisions of this chapter shall be considered fraudulent, and the same shall not be counted.” By section 5528, “the notice shall specify the grounds upon which the contestant intends to rely, and, if any objection be made to the qualifications of any voters, the names of such voters and the objections shall be stated therein.” Since this ground of contest does not go to the qualifications of the voters, it was not necessary to set out their names; it was sufficient to state the grounds of the contest. The objection to the sufficiency of the notice is that it does not appear from the facts stated that the ballots were fraudulent. It is not contended that the notice should set out the words which it is claimed render the ballots fraudulent, but it is insisted that there is not enough stated to show that the ballots were fraudulent. Section 5493 furnishes an absolute rule of evidence. It makes the ballot fraudulent, without regard to intent, when it has thereon any writing or printing other than that specified. It may have written or printed thereon the names of the persons voted for, words designating the offices to be filled, substituted names, and a caption expressing truly its political character; but it is fraudulent if it bears any other writing or printing. It is true the notice does not in express terms state that the “writing and *63 written words” were other than a caption or head-lines. But the notice conveys the idea that the ballots, besides being full and formal, had written thereon other and additional words. The notice might have been more specific, but it is to be remembered there are no formal pleadings in these cases. The notices, on the one side and the other, constitute the only pleadings. Section 5532, Rev. St., provides that “every court authorized to determine contested elections shall hear and determine the same in a summary manner, without any formal pleadings.” The contestant did not present this question until he had put in his own evidence, and then, not by way of a motion to strike out this part of the notice, but by way of an objection to the introduction of any evidence. In view of all of the foregoing considerations, we are of the opinion that there would have been no error in overruling the objection thus made by the contestant.

We, however, agree with the contestant that the proof offered by the contestee furnished no reason for excluding the ballots. It shows that prior to the election the county court made an order submitting to the electors the question whether the stock law should be put in force. Many persons wrote upon their ballots words expressing their vote for or against the law, and these are the words which the contestee insists rendered the ballots fraudulent. Had the order of the county court been a valid one, then it is conceded that the vote for or against the stock law might have been written upon the general ballot; and so we held in Applegate v. Eagan, 74 Mo. 259. But the contestee insists that the order of the county court was void, because it was made upon the petition of householders of five or six congressional townships, and not upon the petition of householders of five or more municipal townships. Let it be conceded that the act of March 31, 1885, (Acts 1885, p. 29,) when it speaks of five or more townships, means municipal, and not congressional, townships, and that the order of the county court was a void order, still it does not follow that these ballots were fraudulent. To say that they were fraudulent is to make section 5493 a snare to entrap the unsuspecting voter; that is not its purpose. The order for the vote was made by the court having power to make it, on a proper petition, and, so far as the balance of the ticket before the electors is concerned, it is wholly immaterial whether the order was void or valid. The voter was not, at the peril of losing his entire vote, called upon to investigate the validity of the order.

2. After this contest had been commenced each party, at different dates, procured a writ under the act of March 27, 1883, (Acts 1883, p. 91,) commanding the clerk of the county court to open and recount the ballots. Both of these recounts gave Hubbard a majority of 12. This increase is due to the fact that in the recounts one vote for “J. D. Huba,” one for “J. D. Hubba,” one for “Huber,” one for “J. D. Hub,” and one for “D. Huber” were counted for contestee. Effect should be given to the will of the electors, and it is now generally agreed that the circumstances surrounding the election may be given in evidence, on an election contest, to explain ambiguities in the ballots. McCrary, Elec. § 396; Cooley, Const. Lim. 611; 6 Amer. & Eng. Cyclop. Law, 431. There were but two candidates for this office, and their names are so unlike that there is no danger of confusion as between them. The election, as to these candidates, was local, confined to the county where they resided, and the voting population seems to have been largely German. Under the evidence, the court might well have found that these ballots were for the contestee, and there would have been no error in counting them for him. Whether the court did or did not count them for him does not appear from this record.

3. Each party to this contest insists that the other received a large number of votes which should be excluded, because the persons casting them were not citizens of the United States, and had not declared their intentions to become citizens not less than one nor more than five years before the election in question. In looking at these questions of fact, it is to be remembered that this election was held by duly-appointed officers, who received and counted the votes to which objection is now made. The presumption is that the votes were legal, and it devolves upon the party who asserts their invalidity to show that they are illegal. It is not sufficient proof of the invalidity of a vote to show that the person who cast it is of foreign birth, nor is it sufficient to show that he made declaration of his intention to become a citizen of the United States at a date more than five years before the date of the election in question. The presumption of innocence is not overcome by such proof, without more. Again the minor children of aliens, though born out of the United States, if dwelling within the United States at the time of the naturalization of the parents, become citizens by virtue of the naturalization of the parents. Carey v. Andriano, 92 Mo. 71, 4 S. W. Rep. 263. The record discloses a case where a widow and her son, both of foreign birth, came to the United States, and, while the son was yet a minor, the mother married a citizen of the United States. Section 1994, Rev. St. U. S., declares that “any woman who is now, or may hereafter be, married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.” The marriage of the mother with a citizen made her a citizen, and her minor son became a citizen by operation of section 2172, Rev. St. U. S.; U. S. v. Kellar, 11 Biss. 314, 13 Fed. Rep. 82. Applying these rules to the evidence, and the admissions made by the parties on the one side and the other, it appears that Hubbard received 28 votes cast by persons who were not qualified voters by reason of alienage, *64 and Gumm received 9 such illegal votes. Hubbard received at least one and Gumm seven other votes which must be excluded, because the persons casting them were disqualified, either by reason of minority, or because not residents of the state one year, and of the county for 60 days preceding the election, or because they did not vote in the township where they resided. In the foregoing estimate of illegal votes cast for Gumm is included one vote of one of the judges of the election who did not cast it until long after the polls had been closed. The polls, when closed, are closed to the judges as well as to other persons.

4. The result of the foregoing consideration is that Gumm has a majority of one. But there are a dozen or more other votes to which objections are made on the ground of minority, want of citizenship, want of sufficient residence in the state or county, and the evidence is such that the court might well have found for either party. It is not the province of this court to determine disputed or doubtful questions of fact in these contested election cases, any more than in other actions at law. Turner v. Drake, 71 Mo. 286. There are no specific findings, but simply a general finding for contestee. No instructions were asked or given on the trial, and we have said enough to show that the judgment is in accord with correct principles of law, and it is therefore affirmed. All concur.