Bradley v. Cox

BLAIR, J. This is an election contest. The office involved is that of Judge of the Springfield Court of Appeals. Contestee has been declared elected and has been commissioned. In the primaries held August 1, 1916, contestant and contestee were regularly nominated by the Democratic and Republican parties, respectively. There are forty-four counties in the Springfield Court of Appeals District. The only questions raised in this proceeding grow out of happenings in Maries County. In the forty-three counties, other than Maries, contestant received 86928 votes and contestee received 87271 votes. In Maries County contestee received 721 votes, making his total 87992. One vote cast in Maries County is conceded to contestant, making his uncontested total 86929. One thousand three hundred and eleven other votes for Judge of the Springfield Court of Appeals were cast in Maries County, and the principal question is whether these votes should be counted for contestant. Contestant’s name, as the name of the regularly nominated Democratic candidate for the office in question, was duly certified by the Secretary of State to the county clerk of Maries County. Two newspapers, the Maries County Gazette and the Belle Times, were designated as the papers to publish the lists of nominations for the various offices to be filled at the 1916 general election The list as published in the latter was correct. In the former — 446 — the published list contained the name of Arch A. Johnson, instead of that of contestant, as the Democratic nominee for the Springfield Court of Appeals. A third paper, the Home Advertiser, a paper of general circulation in Maries County, published at Vienna, the county seat, published the correct list of all nominations. The Gazette printed the official ballots for the county and in these printed the name of Arch A. Johnson, instead of that of contestant, as the Democratic candidate for the Springfield Court of Appeals. The error was not discovered until several days after the election. These ballots were the ones used in Maries County and were otherwise correct. They were, on election day, handed out to the voters as the Democratic ballots for that election and were used by the voters who voted the Democratic ticket in that election. In his notice of contest, contestant asked that a commissioner be appointed, Hon. H. E. Alexander of Cape Girardeau was appointed and took the testimony of many witnesses. The net result of this was evidence that practically all the 1311 voters who cast the ballots in question intended to vote and believed they were voting for the Democratic nominee for Judge of the Springfield Court of Appeals. Our commissioner so finds from the evidence. He concluded that the 1311 ballots should be counted for contestant. Among other things, the parties hereto stipulated the following: “Tenth. That the name of Arch A. Johnson was printed on the Democratic ticket in Maries County as if he were the Democratic nominee for Judge of the Springfield Court of Appeals, and that all of the Democratic tickets used at the various precincts, and at all the precincts in Maries County, at the general election on November 7, 1916, contained the name of Arch A. Johnson printed thereon as if he were such nominee .... “Thirteenth. That there were 1311 ballots cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Johnson’s name thereon as if he were the — 447 — Democratic nominee for Judge of the Springfield Court of Appeals. “Fifteenth. That there were 111 ballots cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson as if he were the Democratic nominee for Judge of the Springfield Court of Appeals by legally qualified voters, whose evidence has not been taken, and who have not been stipulated upon.” Contestee’s answer contains the following: “Contestee admits and avers that by some mistake or inadvertence, unknown to contestee, the name of Arch A. Johnson as a candidate for Judge of the Springfield Court of Appeals was printed on the Democratic ballots that were provided for the use of voters in said Maries County and that said ballots were used by said voters and that there were cast for said office in said Maries County at said election for contestant one vote, for contestee seven hundred and twenty-one votes, and for Arch A. Johnson thirteen hundred eleven votes.” On the argument it was further stipulated that the persons easting the 1311 votes counted for Arch A. Johnson, voted the regular Democratic ticket. Under section 5855, Revised Statutes 1909, all nominations for elective offices, with certain exceptions with which we are not concerned in this case, must be made by primary election held under article 4, chapter 43, Revised Statutes 1909. Section 5877 provides that the party primary nominees for offices shall be the- candidates of that party for such offices and their names as such candidates shall be placed on the official ballot at the following election. Section 5878 requires the Secretary of State to certify and publish the primary results as to state and district offices, and to certify to the chairman- of each party’s state committee so much of the certificate as relates to the nominees of the party of whose committee such chairman is the head. Section 5879 requires the Secretary of State to certify to the county clerk of each county the nominees for each state and district office for which the voters of the county are entitled to vote. — 448 — By section 5889 it is provided that all ballots cast in elections for public officers in this State must be printed at public expense. Section 5890 makes it the duty of the county clerk of each county to provide printed ballots for every election for public officers in which the electors of his county are entitled to participate, and requires, such clerk “to cause to be printed in the appropriate ballot the name of every candidate whose name has been certified to or filed with him in the manner provided for in this article.” It further provides that “ballots other than those printed by-the respective clerks of the county courts according to the provisions of this article shall not be cast or counted in any election. ” By section 5891 it is provided that “every ballot printed undejr the provisions of this article shall be headed by the name of the political party by whom the candidates whose names appear on the ballots were nominated and each of said ballots shall contain only the names of the candidates nominated by said party. Underneath the name of each candidate shall be left a blank space large enough to contain a written name.’ ’ By section 5895 it is required that all the ballots and lists of nominations for office shall be printed and published, respectively, “under the direction and with the consent and approval of the county court of the county in which any such election is to be held.” Section 5896 provides that when “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” certain courts or judges “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.” Under section 5899 each voter is entitled to receive from the judges of election one ballot “of each political party voted for at said election,” and it is made the “duty of such judges of election to deliver such ballots to the elector,” the judges first writing their initials upon-the back of the ballots. Section 5900 provides that the voter, upon receiving the ballot, shall immediately retire- to one of the booths in the polling place and that — 449 — “he shall prepare his ballot by selecting the ballot he desires to vote. He shall erase or strike ont the name of any candidate he does not wish to vote for and write the name of his choice underneath.” Section 5851 requires the county clerk, prior to the election, to publish ‘ ‘the nominations, to office certified to him by the Secretary of State and also those filed in his office.” The lists so published are required by section 5852 to be arranged in the order and form in which they will be printed upon the ballot. Contestant was the regular nominee of his party. The law required his name to be printed upon the party ballot as the party nominee and candidate. Instead, through mistake, the name of Arch A. Johnson was printed thereon as such nominee and candidate. The party ballots bearing Johnson’s name so printed were delivered by the judges to the voters, and, it ,is stipulated, 1311 such ballots were cast in Maries County at the general election on November 7, 1916, bearing the name of Arch A. Johnson thereon and cast with said Jolvnson’s name thereon as if he were the Democratic nominee for Judge of the Springfield Court of Appeals. It is further stipulated these ballots were cast by persons who voted the regular Democratic ticket. The answer avers that 1311 of these ballots with Arch A. Johnson’s name printed thereon as candidate for Judge of the Springfield Court of Appeals were cast by the voters of Maries County, and avers that Johnson received 1311 such votes. The stipulation and this averment mean that 1311 voters who selected the Democratic ballot as the one they desired to vote cast such ballots with the name of Arch A. Johnson printed thereon in the space set aside for the name of the Democratic nominee for the Springfield Court of Appeals, and that these ballots, when cast, bore in that space the printed name of Arch A. Johnson, and that no other name was printed or written in such space. The averment that Johnson “received” 1311 votes, coupled with the stipulations, makes-this clear beyond doubt. It is obvious the ballots canndt be counted for Johnson. The law requires the names of party nominees, — 450 — only, to be printed on the ballots. If tbe names of others are printed thereon, the ballots, nevertheless, cannot be counted for such others. Even had Johnson been the nominee of some other party or of a group of electors, these ballots, could not have been counted for him. [Atkeson v. Lay, 115 Mo. 538.] The only method whereby the voters can, on a party ticket, vote for any person other than the nominee of such party, is by erasing the name of the nominee; i. e., the regularly nominated candidate, and writing “the name of his choice underneath.” [Sec. 5900, R. S. 1909.] Nor is there any provision of law permitting the voter to write in the name of a nominee which has been inadvertently omitted or misprinted. The blank space is provided for the name of the voter’s “choice” when that “choice” is some person other than the nominee. This is the specific meaning of the statute. Neither can the voter himself provide a correctly printed ballot. He must receive from the judges and must use in voting the ballot prepared by the county clerk. The statute prohibits the casting or counting of any other. In such circumstances and under these statutory provisions, the voters of Maries County went to the polls. Each of the more than two thousand voters of that county was handed, among others, the official ballot prepared, by the clerk, headed “Democratic Ticket,’ ’ and required by the law to contain the names of every Democratic nominee, including that of contestant. One thousand three hundred and eleven of those voters desiring to vote the Democratic ticket returned the official Democratic ballot to the judges of election without erasing the printed name appearing on the ballot as that of the Democratic candidate for the Springfield Court of Appeals, and without writing in the name of any other person as their choice for that office. Without attempting to change it, these voters cast the printed official ballot, properly headed as the ballot of the Democratic party. They selected it as the particular party ballot they desired to vote. They knew the law required that ballot, as given them by the judges, to contain the names of every one of the numerous Democratic nominees for of — 451 — fice, including that of the nominee for the Court of Appeals. Knowing this, each delivered the ballot to the judges in the form in which it was officially printed and in which he received it from the election officials, so far, at least, as concerns the office in question. The State had taken out of the hands of these voters the preparation of. these ballots. It had prohibited them from using any ballots except those it furnished. It furnished them ballots which lawfully could contain no names other than those of the regular nominees. By so delivering them these ballots it, in effect, said to them “this printed ballot, headed with the name of the Democrat party, contains the- names, under proper headings, of the Democratic nominees. You must use this ballot if you desire to vote the Democratic ticket. You can use no other. If, for some office, you wish to vote for some person other than a nominee, you must erase the name of the nominee, printed on the ballot, and write in such other person’s name.” In effect, therefore,' the act of delivering of such ballot also meant that if the voter desired to vote for all Democratic nominees, all that was necessary for him to do was to re-deliver the Democratic ticket to the receiving judges. In such circumstances and under such statutory provisions we are of opinion that a party ballot, voted and cast as printed, must be held conclusively to show the the voter’s intent to vote for the nominee of that party and that it must be counted, with respect to each office, for the party nominee therefor regardless of what name appears in the particular space devoted to that office. In this ease the agreed facts and statutes are sufficient without any consideration of the oral evidence offered.- There are no precedents. No similar case has heretofore engaged the attention of any court so far as industry of counsel or our own investigation has disclosed. This court is, however, committed, as are all courts, to the principle that the disfranchisement of voters is not favored. We will not give to any law such a construction “as would permit the disfranchisement of large bodies of voters because of an error of a single official” in any — 452 — case in which the law in question “is fairly susceptible of any other.” [Bowers v. Smith, 111 Mo. l. c. 55.] In this case the law is not only fairly susceptible of the construction we have given it, but no other construction seems reasonable in view of all the provisions of the statutes. Something is said concerning the result and effect of the holding that the 1311 votes in question shall be counted-for contestant. Perhaps there is no impropriety in pointing out the effect of a contrary holding. ' The first result of such a holding would be to disfranchise the voters of one party in an entire county. The second result would be the establishment of a precedent whereby error might disfranchise the entire State and behind which, possibly, fraud might intrench itself and intentionally defeat thé will of the voters of the State. Under such a ruling it is within possibilities that error or fraud in printing the ballots in Missouri might result in changing the result even in .a national election. That the Legislature intended to leave open the way for such wholesale defeat of the popular will is not a conclusion we are willing to announce unless there -is no other reasonable construction to be given the statutes. It is suggested the Constitution provides all elections shall be by ballot and that this precludes counting the votes for contestant. This constitutional provision is intended principally to secure secrecy. [Ex Parte Arnold, 128 Mo. 260.] It does not prohibit the Legislature from providing methods of voting* in which names of regular nominees need not appear at all upon the ticket. The real requisites are that the ballot shall preserve secrecy and show the voter’s choice. [In re Mathiason Mfg. Co., 122 Mo. App. l. c. 444.] Any manner of voting which shows the voter’s choice and preserves secrecy is “voting by ballot.” Within the constitutional provision voting jnachines meet a constitutional requirement such as ours. [Lynch v. Malley, 215 Ill. l. c. 580; U. S. Standard Voting Machine Co. v. Hobson, 132 Iowa, 38; City of Detroit v. Election Inspectors, 139 Mich. 548, and cases cited; Elwell v. Comstock, 99 Minn. 261.] In this — 453 — State the ticket required to be printed is headed by the party name and required to contain the printed names of nominees with spaces left for writing in names of persons other than nominees. The view that under our statutes the delivery of such -an official ticket to the judges of election is a vote for the regular nominees of the party whose name heads the ticket does not, it is apparent, cause the statutes to offend against the 'constitutional provision. The vote was by ballot. The construction of the effect of the ballot as cast is that which concerns us in this case. The statutory provision that ballots other than those the county clerk prepares and causes to be printed shall not be cast or counted means, simply, that no ballot shall be cast or counted except those officially prepared. It does not mean if any error occurs in printing such ballot the ballot shall be thrown out. It is also urged that the statute provides a method for correcting errors in printed ballots and that this is preclusive. This question is not involved in this case. Our construction of the ballot cast is such that, as cast, it must be counted for contestant; that as cast it shows an intent to vote for the nominee, i. e. contestant. In such circumstances, whether the ballot might, under the statute, have been corrected at the instance of contestant or any elector of Maries County is not an inquiry necessary to be made. If the official ballot means what we hold it means, then no correction was necessary to require these 1311 ballots to be counted for contestant and to prevent the disfranchisement of the 1311 voters of Maries County who east those ballots. The cases cited on this point decide nothing out of harmony with this conclusion. It results that the 1311 ballots in question must be added to the 86929 conceded to have been correctly counted for contestant. This makes his total vote 88240, giving him a majority of 248 and entitling him to the office. It is ordered, therefore, that contestee be ousted from the office of Judge of the Springfield Court of Appeals and that John H. Bradley,, contestant herein, be installed in said office as judge of said court for the full term for — 454 — which he was a candidate at the general election in November, 1916. Williams, J., concurs; Graves, J., concurs in a separate opinion in which Faris, J., concurs; Bond, J., dissents in separate opinion in which Walker, J., concurs. Woodson, J., dissents in separate opinion. Oral Evidence of Voter's Intention.