Shields v. McGregor

Black, J. Mr. Shields, who is the plaintiff or eon-testor and the appellant here, and Mr. McGregor, were the candidates, and the only candidates, for judge óf the fifteenth judicial circuit, at the general election held on the second of November, 1886. The circuit is composed of the counties of Lawrence, Newton, Jasper, and McDonald. In the entire circuit the defendant receivéd, and there were counted for him, sixty-eight more votes than were cast or counted for the plaintiff. Mr. Shields contested the election, and this is an appeal from a judgment adverse to him. The main controversy in the case arises from the circulation and use at the election, in McDonald county, of printed tickets upon which the contestee’s name appeared, and which tickets, it is alleged, bore captions or headlines designed to, and which did, it is said, mislead the voters as to the names thereunder, and were, therefore, fraudulent, and should not have been counted. The facts, as they appear from the admissions of the parties, and the evidence reported by the commissioner, are as follows : “ The contestor was the regular and only — 542 — nominee of the democratic party for circuit judge. That party made its nominations in all of the counties for all of the offices voted for at the election, and the name of the contestor appeared upon all of the tickets which were authorized to be printed by the party organization. These tickets in McDonald and the other counties were simply headed ‘£ Democratic Ticket. ’ ’ The contestee is a republican in his political proclivities. It appears that the judicial executive committee of the republican party, at a meeting held on the seventh of September, 1886, resolved that it was not advisable to jp.fl.n a convention to nominate a circuit judge, but the committee, in the same resolution, endorsed the candidacy of the contestee, who had announced himself as an independent candidate, and authorized his name to be printed on t he party tickets, which was done in all of the counties. In McDonald county, the republican party and the greenback-labor party made their nominations for state’, congressional, and senatorial offices, but made no nominations for persons to be voted for for the various county offices. Candidates for the county offices were, in that county, put before the electors by a mass convention composed of persons previously identified with the different political parties. The persons thus nominated were known and called the “Independent County Ticket.” This mass convention, it seems, also endorsed the candidacy of the contestee. It is admitted that there were circulated and voted tickets which bore a caption in form and in type as follows: “DEMOCRATIC “ State, Congressional and Senatorial, “and “ INDEPENDENT "Judicial and County. Ticket.” Under this caption were printed first the names of the — 543 — democratic candidates for judge of the Supreme Court, railroad commissioner, superintendent of public schools, and state senator. Then followed the name of the con-testee as a candidate for circuit judge and the names of the candidates for the county offices, who had been put in nomination by the mass convention, and were known as the “Independent Ticket.” It also appears that tickets were circulated and voted having the following caption: “Greenback-Labor, State, Congressional and Senatorial, and Independent Judicial and County Ticket,” in form and type the same as the preceding one. The candidates upon this ticket were those nominated by that party for state, congressional, and senatorial offices, and then followed the name of the contestee, and the name of the persons composing the “Independent County Ticket.” The contestor states that the contestee received, and there were counted for him, three hundred of the first of these ballots, and sixty-seven of the second. The proof shows that a number of .each kind were voted and counted, and the allegation as to the number will be taken as true. These are the ballots alleged to be fraudulent, because designed to mislead the voters. It may be stated, as a part of the history of the election, • that the republican tickets had a like caption, save the word, “Republican,” was used as the first word of the caption. The candidates for circuit judge and county officers are the same as on the two tickets just described. These three tickets and the ticket headed, “Democratic Ticket,” were the only printed ballots used at the election. Section 5493, Revised Statutes, 1879, after stating that the ballot shall be a piece of white paper, on which shall be written or printed the names of the persons voted for, provides: “ Said ballot shall not bear upon it any device, whatever, nor shall there be any writing or printing thereon, except the names of persons, and the desig — 544 — nation of the offices to be filled, leaving a margin on either side of the printed matter for substituting names. Each ballot may bear a plain written or printed caption thereon, expressing its political character, but on all such ballots the caption or headlines 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.” . This statute was passed in view of the well-known fact that ballots are, in general, previously printed and circulated on election day, by committees, or persons, appointed by the respective political parties, or by those who advocate the election of certain persons. The evident purpose of the law is to prohibit the use of a caption calculated to induce the elector to conclude, from an inspection of the caption, or headlines only, that the persons thereunder named are of his political persuasion, when they, or any of them, are not. The‘caption is not limited to one word, nor to three words, as in former years. Headlines are not prohibited by the law, but are permitted ; when used, however, they must tell the truth. The law is stringent, fixes an absolute rule of evidence, and declares the prohibited ballots fraudulent, without regard to the fact whether they did in reality deceive the elector or not. But great care must be taken lest we step beyond the true intent of the law. It is clear also that we cannot, as a matter of law, declare the ballots here in question fraudulent on their face. It is necessary to first determine by evidence whether the political character' of the persons whose names are in the body of the ballots is, or is not, truly indicated by the caption. Turner v. Drake, 71 Mo. 287. The words, “political character,” as here used and as used in the statute apply as well to independent candidates as they do to those who are the nominees of regular party organizations. — 545 — 1. Now we may apply these general observations to the exact case in hand. The first words of the caption are “democratic state, congressional, and senatorial.”. That the candidates appearing upon the ballots for these' offices were all democrats is conceded, and thus far there' can be no objection to the ballots. We then have “ an independent judicial and county ticket.” These words-truly and accurately express the political character of the remainder of the candidates on the ballots. Nor can it be fairly said there is anything misleading in the form of the headlines, for the words, “democratic” and “independent,” are both in bold type and each makes a separate line. We think the headlines to these ballots clearly and truthfully indicate the political character of every name below them. To hold otherwise is to say that the elector had the right to read the word, “ democratic,” and then shut his eyes as to the residue of the caption, and that, toó, when the law does not limit it to one or any number of words.' The independent candidates, including the contestee, held their attitude before the public. That was as well known and defined as was that of the candidates of the other political organization. When it is remembered that this independent movement was composed in part of persons affiliating with the democratic party, we think there is no foundation for the complaint made by the contestor. What has been said applies with equal force to the ballot headed “’greenback-labor,” etc. 2. The commissioner properly excluded the expert evidence offered to show that the captions were designed to mislead. The issue of fact was, whether these persons, whose names appeared as candidates for circuit judge and county officers, were independent candidates-. If they were, then the caption truly expressed their political standing before the electors. Nor can the fact that the previous custom in McDonald — 546 — county was for each, party to print its tickets with, the party name, only, as a caption, change the conclusion before expressed. These tickets seem to have been prepared by persons affiliating with all parties, to meet the changed state of affairs, by reason of the independent movement, as to the county and circuit judge candidates, and if it be true, as we hold, that the headlines were not designed to mislead, then the former customs, under different circumstances, can have no bearing upon the case. 3. It appears that the county clerk of McDonald county refused to open and produce the ballots to be counted, unless he had an express order so to do from the court or judge. Upon the incoming of the commissioner’s report, the contestor asked for the proper orders, and a new commission, all of which was refused. The form of the ballots, and many other facts, having been admitted, and the evidence as to the political standing of the various candidates being before the judge, he declined to order a counting of the ballots, unless it should appear that they were illegal, and, being of the opinion that the ballots complained of were not fraudulent, ruled as first stated, and we see no error in this. The counting of the ballots, under such circumstances, would have been wholly •useless. 4. In the fourth subdivision of the petition, it is stated that contestee received only one hundred and ten legal votes in McDonald county, notwithstanding which there were counted for'him seven hundred and eighty-foiir votes. This allegation is accompanied with no statement of facts or particular charges. The law provides that the petition should set forth “the point on which he (the contestor) will contest the same (the election), and the facts which he will prove in support of such points, and shall pray for leave to produce his proof.” In view of this statute, we can — 547 — only regard this general statement as having reference to the preceding specifications, and to relate alone to the votes alleged to be fraudulent, because of the headlines upon the tickets. There could, then, be no use of a further reference, because of anything stated in the fourth subdivision of the petition. 5. The supplemental petition states that the contestee received thirty-eight fraudulent ballots, in Newton county; that they were fraudulent because his name appeared on that number of ballots headed "national state ticket.” Pull admissions were not made as to this charge, nor were the proofs taken because of a refusal of the clerk - of that county to produce the ballots, until specially directed so to do by the court or judge. But, conceding these ballots, thirty-eight in number, to have been fraudulent, for the reason assigned, the result of the election would not be changed, and this cause ought not to be remanded for further proof on that charge. We see no reason for interfering with the judgment in this case, and it is, therefore, affirmed. Sherwood, J., did not participate in the consideration of this case; the other judges concur.