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HomeMy WebLinkAbout1954-04-07 SpecialSPECIAL MEETING OF BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI `-- A special meeting of-the Board of Aldermen of the City of Riverside, Missouri was held at the City Hall on April 7, 1954, upon a roll call, aldermen Beach, Clark, Klemm, Panus, Scrivner, and Young were present, Mayor Filger called the meeting to order. Mayor Filger announced this special meeting was called to canvass the general election of the City of Riverside, Missouri, held April 6, 1954, and determine the results of said election. Thereupon Panus moved that Bill No. 144 being a bill canvassing the return of the ,judges of the General City Election held on April 6, 1954 for certain offices thereof and providing for their certificate of election, second by Scrivner, the roll was called and the votes were as follows: Beach-aye; Clark-aye; Klemm-aye; Panus-aye; Scrivner-aye; and Young-aye; and Bill No. 144 was read accordingly. Panus moved that rules be suspended and that Bill No. 144 be placed on its second reading, second by Scrivner, the roll was called and votes were as follows: Beach-aye; Clark-aye; Panus-aye; Klemm-aye; Scrivner-aye; Young-aye and Bill No. 144 was accordingly read.. Thereupon Panus moved that rules be suspended and that Bill No. 144 be placed on its third reading and upon passage of same become Ordinance No. 144, second by Scrivner, the roll was called and votes were as follows: Beach-aye; Clark-aye; Klemm-aye; Panus-aye; Scrivner-aye; and Young-aye. Bill No. 144 was read accordingly, approved by Mayor Filger and became Ordinance No. 144, A discussion was had regarding how the tie for alderman in the Third Ward between Norville Nelson and G. M. Prince would be determined. Legal advice ~r~tte bh C t Attorn DDo e wa r a.d & s i advi~e is M~riked E~hi~it A ~~o h~~ ~eco~e par~Cyof ~~ie~e m~nu~es of his ~pec al me~anu~ move ~ha~sthe Board ofrAldermen ca~"a voice vote in favor of one or the other of the candidates for alderman of the Third Ward, each of whom received an equal number of votes for such office in the General Election held April 6, 1954, namely Norville Nelson and G. M. Prince and that the one receiving the greater n umber of votes be declared the successful candidate for alderman of the Third Ward, second by Scrivner, the roll was called and votes were as follows: Beach-G. M. Prince, but protested against the method used in determing the successful candidate of th alderman of the Third Ward and thought Section 7Q~.070 and Section 111.760 of the Revised St~utes of Missouri should be used as the method of determing the successful candidate; Clark-Norville Nelson; Kalmm-asked to be excused from voting as he did not know either man, and that he believed the tie should be determined by a second election in the Third Ward; his request to be excused from voting was granted; Panus-Norville Nelson; Scrivner-Norville Nelson; and Young-Norville Nelson. Thereupon Young moved that Bill No. 145 being a bill declaring the results of determination of the matter of the tiefor the office of alderman of the Third Ward and providing for issuance of certificate of election for such office, second by Clark, the roll was called and votes were as follows: Beacn-nay; Clark-aye; Klemm-nay; Panus-aye; Scrivner-aye; Young-aye; and Bill No. 145 was read accordingly. Thereupon Young moved that rules be suspended and that Bill No, 145 be placed on its second reading, second by Scrivner, the roll was called and votes were as follows: Beacn-nay; Clark-aye; Klemm-nay; Panus-aye; Scrivner-aye; Young-aye and Bill No. 145 was read accordingly. Law Offices WARD A. DORSEY COPY 201 Community Building North. Kansas City, Missouri April 7, 1954 Mayor and Board of Aldermen City of Riverside Riverside, Missouri Gentlemen: This office has been r equested to give its opinion as to the legal solution to the following problem: On April 6, 195-~-, pursuant to law, a municipal election was held in the city of Riverside which resulted in a tie vote between two candidates for tie office of alderman. What procedure should be taken ~~ order to legally fill the office? Before attempting an answer, it is well to pass on the factual assertion twat a tie vote exists. This is necessary beca~nse, as we understand it, three votes cast were not counted and these votes would have resolved the election one ti~ay or the other. The three votes were declared invalid. and r ejected because the ballots were improperly marked. It is our o~ainion that the decision of the duly appointed and rualified election judges on the legality of the three bal7Llots is final -- except, of course, that they can be questioned in a proper election cont:.st action b nought before aproper court. Neither the Board of Aldermen nor the City Clerk ha_s the ~ower to overrule the action of the election judges in this retard. Thus, unless one of the candidates turr:.s to theprescribed judicial relief found in an election contest action, the decision of the election judges in cor_- clusive <nd a tie vote legally exists. The procedure for the proper conduction of elections in cities of the fourth class is prescribed in Section 111.010 et.seq. R.S.No.1949.2 After the totalli.n~; of the votes cast, the election 1 State ex inf.V.Nass, 172 S.W. 1180, 1181, Also see Sec. 111.630 R.s.r~o. 1949. 2 This is so even in spite of the statutory recitation that the law does not apply to cities of fourth class (Section 111.010) Ousley v. PoG~rell, 12 S 142102; State ex rel v. Vass-Brinck et al, 257 S W2208. Page 1 - Exhibit "A" Mayor and Board of Aldermen Pa^e 2 April 7, 195L{-. jud~~es forward the ballots to the city clerk3 who is required to safely preserve them for 12 months thereafter and to prevent such ballots f ron:b ein inspected by anyone (except, of course, such inspections as the proper court night order under proper circumstances). The clerl~, within five days after the election, examines and casts up the votes given toe ach candidate and rives to the car_d~date with the highest number of votes a. certificate of election . But we are here presented with the situation where there is no highest rlunber of votes. The law has conterrrr,lated this predicamer_t. Two Sections of our Missouri statutes refer to this problem. Section 79.070 strikes directly at the heart of our problem. It reads: No person sha)_1 be an alderman unless he be at least twenty-one years of age, a citizen of the United States, and an inhabitant and resident of the c:i.ty for ' one year next preceding his election, and a resident of the ward from w;~ich he is elected. Whenever there shall be a tie in the election of aldermen, the matter shall be determined by the board of al.derrren. Yet it will be roted.that metlmd by which "the matter shall be determined by the board of alderrnen~ is not mentioned. There is no direction given by our lawmakers. And there is darl~er in this, for our courts have previously attacked this s~atute, in its forr:: of several years ago, for a_v eryrelated reason. Previously this law also contained the words: ".. the matter shal 1 be determined by the board of alder- men; so also, in case the election cf ar_ alderman be contested." The court criticized the underscored words for the reason that no provision was made for proce~ure to be taken by the aldermen in case of a contested election , and held it nu"atory. d .r .1 r, W N 0 a If it is decided not to follow Section 79.070 in der~ermining the tie by means of a vote of the Board of Aldermen, then you should resort to the procedure set forth in Section 111.760 which is the other proviso. n relatin~~, to tie elections in £;enera.l. It reads as follows: If there shall be a tie of the ~aotes given for any two candidates, except in c ases otherwise provided by law, the clerk and Isis assistants ap pointed. pursuant to section 111.710 castin,: up the num'~er of votes, or a majority of them, shall issue their order to the sheriff of the county thare the same may occur, directing; iiim to issue his proclamation for holding an election ar:,reeably to the provisions of this chapter; and in allc ases of such special election, the clerk and assistants, or a rrk~jority of them, when they issue the order to the sheriff, shall, in such. order, state the day on w ich such election shall be held, givint_; reasonable time for the same to be promulgated. 3 Section 111.630, infra 5 Sec. 696La., R.S.I~o.1929 4 Section 111.710 6 State ex rel v. Gideon, l~.9 s w2745,746 T~lyor and Board of Aldermen Page 3 April 7, 195LI. Thus, proceeding; under Section 79.070 to deterrcine the tie vote, you should elect to use the method announced in Section 111,760. That is, notify the city niars7~al l directint him to issue his ~ oclanation for holding a special election for the office of alderman in the ward in euestion. T11e city clerk shoulo make this notification for the Board of P.ldermen, and such notification should_ provide the day the election shall be held (not less than ten: ays after the proclamation of the election b~~r the marshal. 1 shat 1 have been. published) . Ii' it is decided to folloi•~this course we w ill a dvise further as to the details o? the procedure. Therefore it is a tahether they d esire tore:solve vo ite of the Board of Ald errne by means of a special electio matter for the Board of Al deririen to decide the question of the tie by means of a n or whether they desire to deterrn ne it n under the provisions of Section 111.760. Respectfully submitted, s~ tiM1tard A. Dorsey Ward A. Dorsey WAD~ja Page 3 -Exhibit "A"