O'Connell v. Board of President, Etc., of Public Schools

• Decision Date: 15 November 1892
• Citation: 112 Mo. 213,20 S.W. 484
• Parties: O'CONNELL v. BOARD OF PRESIDENT, ETC., OF ST. LOUIS PUBLIC SCHOOLS et al.
• Court: Missouri Supreme Court

20 S.W. 484

112 Mo. 213

O'CONNELL v. BOARD OF PRESIDENT, ETC., OF ST. LOUIS PUBLIC SCHOOLS et al.

Supreme Court of Missouri, Division No. 2.

November 15, 1892.

ELECTION OF SCHOOL DIRECTOR — EXAMINATION OF BALLOTS.

Const. art. 8, § 3, provides that all elections by the people shall be by ballot, and that the election officers shall be sworn not to disclose how any one voted, unless required to do so as witnesses in a judicial proceeding; but that in all cases of contested elections the ballots may be counted and examined, as may be prescribed by law. Section 9 provides that the trial and determining of contested elections of all public officers shall be by the courts of law, in the manner provided by the general assembly. Held, that an election as director of the school board of St. Louis under the act of 1887, (pages 272, 273,) providing that such election shall be held by all the qualified voters of the district, is an election of a public officer by the people, within the meaning of the constitution, and hence the ballot boxes used in such election cannot be opened and the ballots inspected except by an order of the court in a case of contested election, prosecuted under a statutory provision.

Proceeding by John W. O'Connell to obtain a writ of prohibition against the board of president and directors of the St. Louis public schools, William H. McClain, Walter J. Wait, Robert Rutledge, Henry Troll, John P. Collins, Henry Hickman, John J. Sheehan, and Thomas I. Burke, to restrain them from opening ballot boxes and inspecting ballots cast in an election for the office of director of defendant board. Prohibition granted.

Chester H. Krum, for relator. Chas. Nagel and Phillips, Stewart & Cunningham, for respondents.

GANTT, P. J.

This is an original proceeding, commenced in this court, to obtain a writ of prohibition against the board of president and directors of the St. Louis public schools and the individual defendants, constituting an election committee, appointed by said board, to hear a certain contest for the office of director in said board. The plaintiff alleges that he is a citizen of the city of St. Louis, resident within the eighth school district as established by said school board, and that he is duly qualified by law to become and serve as a director in said board; that the said board is a public corporation, created by the laws of this state, to manage, control, administer, and regulate the system of public schools within and for the city of St. Louis; that on the 3d of November, 1891, at said city, in said eighth district, by order and authority of said board, an election was held for the office of school director for said district, and at said election plaintiff was duly elected to said office; that he received his certificate of election, and thereupon became, and now is, the qualified and lawful incumbent of said office of director; that the said office of director is a local office, within the meaning of section 9, art. 8, of the constitution of the state. The petition further shows that, under rule 6 of the rules and regulations of said board, Thomas I. Burke, who was an opposing candidate for said office at said election, gave, or attempted to give, notice for a contest for said office, and that said board had appointed the other defendants an election committee to hear and report on the same; that said committee, against the protest of plaintiff, had assumed jurisdiction, and had heard testimony from time to time until September 13, 1892; "that on said last-mentioned date the said committee reported to said board that the further hearing of the said contested election case had been laid over until September 29, 1892, at which time the said committee proposed to open the ballot boxes which contain the ballots cast by the voters in said school district at the election at which plaintiff was elected as aforesaid; that no order of court has been obtained for the opening of said boxes by the said committee; that said report of said committee of its intention to open said ballot boxes was approved by said board; and that, unless restrained by the court, said defendants will proceed to open said ballot boxes, and make public the ballots contained therein." Upon this petition a citation to show cause was issued by one of the judges of this division, and the defendant Burke filed his separate answer, and all the other defendants except defendant Hickman filed a joint answer.

Defendant Burke, in his answer, denies all the allegations of the petition, asserts the power of the board to proceed as threatened, but does not assert that he was elected to said office. The other defendants deny that this is a local office, within the meaning of the constitution; deny that the proceeding in which they are engaged is an election contest, or a matter of contested election; and aver that they are proceeding to an examination into the conduct of said election held November 31, 1891. That by virtue of an act approved February 13, 1833, and an act approved March 30, 1887, the powers of said board are vested in the president and directors, who are given power...