Straughan v. Meyers | Cases | Westlaw

In this action the legislative act (Laws 1913, p. 325) relating to absent voters, and prescribng 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:

The body of the act provides that employés 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 box nor entered upon the pollbooks, but shall, together with the affidavit, be sealed in an envelope, which is signed by one of the judges and be filed with the clerk of the 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.

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 fatally defective as a title to an act applicable only to the city or county of St. Louis.

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 him 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 v. Hurst, 104 Tex. 423, 138 S. W. 566; State v. Blaisdell, 18 N. D. 31, 119 N. W. 360; State v. Custer, 28 R. I. 222, 66 Atl. 306–308; Gillespie v. Palmer, 20 Wis. 544; Davis v. Brown, 46 W. Va. 716, 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 pollbooks, 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.

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 *1163 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 preserve 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.

Counsel for appellant urge that the doctrine announced in Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, 16 L. R. A. 754, 33 Am. Rep. 491, Hehl v. Guion, 155 Mo. 76, 55 S. W. 1024, and Gass v. Evans, 244 Mo. 329, 149 S. W. 628, 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 pollbooks, 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 of these cases (Hehl v. Guion) the court announces that this requirement is addressed to the election judges, and says to them:

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 (section 1) that they can avail themselves thereof only upon the conditions and under the regulations specified. As early as Smith v. Haworth, 53 Mo. loc. cit. 89, this court said:

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 *1164 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 beneficient 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 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 16 absent voters without regard to their regularity or irregularity, basing his action upon the alleged invalidity of the act. Of the 16 thus rejected, 13 were deducted from the total vote of the contestee, and 3 from the total vote of contestant. Of the 13 deducted from contestee, the record discloses that eight were cast at Commerce, Scott county, Mo., 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 indorsed thereon. Some time 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. F. 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 thereon 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 11, instead of 13, 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 nonresidence or nonage. The court further found that nine votes should be deducted from the total vote of contestant, because the persons casting same were likewise disqualified as electors on account of nonresidence and nonage. 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 *1165 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 13 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, 1,111 votes; contestee, 1,109 votes. Making the calculations according to the views herein expressed, the result is: 1,112 votes for contestant, 1,111 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, Mo., should be, and the same is, affirmed.