State v. Slover

• Citation: 126 Mo. 652,29 S.W. 718
• Parties: STATE ex rel. McCURDY v. SLOVER.
• Decision Date: 19 February 1895
• Court: Missouri Supreme Court

29 S.W. 718

126 Mo. 652

STATE ex rel. McCURDY v. SLOVER.

Supreme Court of Missouri, Division No. 1.

February 19, 1895.

PROHIBITION — ILLEGAL WRIT — ELECTIONS — RIGHT TO EXAMINE BALLOTS.

1. Though a court has jurisdiction of an action, prohibition will lie to forbid it to issue a writ not authorized by law.

2. Rev. St. § 4721, provides that any court before which any contested election is pending may issue a writ to the clerk of the county court of the county in which the election was held, commanding him to examine the ballots, and to certify the result to the court. The election law (Rev. St. § 4793) provides that the powers and duties therein given to the clerks of the county courts of the several counties shall be exercised, in reference to the city of Kansas City and any other cities having a registration of voters, by the recorder of voters of such city. Held, that a writ will lie to the recorder of voters of Kansas City commanding him to examine the votes in his office, and to certify the result.

Application, upon relation of James W McCurdy, against James H. Slover, judge, for a writ of prohibition to restrain defendant from issuing a writ directed to a recorder of voters, and cause an examination of ballots cast at a general election, while in his custody. Denied.

F. C. Farr, Garner & Walsh, and Flournoy & Flournoy, for relator. I N. Watson, for respondent.

BARCLAY, J.

This is an original proceeding to obtain a writ of prohibition against one of the judges of the circuit court of Jackson county. The plaintiff is Mr. McCurdy. It appears that he is defendant or contestee in a statutory proceeding, pending in that court, to contest an election held in November last, in Jackson county, for the office of collector of the revenue. Mr. De Bord is the plaintiff or contestant therein. Judge Slover, as the circuit judge before whom that proceeding is in progress, has issued a writ or order directed to the recorder of voters of Kansas City, commanding him to open and count the ballots cast at the last general election (November, 1894) for the office referred to. The order conforms to the provisions of section 4721, Rev. St. 1889, as to form, and no question is raised on that score. Nor is any question made as to that part of the writ or order which refers to the county clerk. As the office in question is a county office, the ballots cast outside the city (now in custody of the county clerk) were required by the order to be examined, as well as those cast inside the city, which were in possession of the recorder of voters. The sole point of the present controversy is whether or not the circuit court of Jackson county has jurisdiction to direct such a writ to the recorder of voters, and to cause an examination of ballots cast at a general election, while they are in the custody of that officer. The plaintiff in this court, Mr. McCurdy, asserts the negative of that proposition. Hence, he has brought the present application for a prohibition to test the validity of the order of the circuit judge. If the court had no lawful authority to make it, — that is to say, if the order was beyond the power of the court in the pending election contest, — the writ of prohibition would undoubtedly lie, notwithstanding the court might have general jurisdiction over election contests, and hence over the subject-matter of the proceeding; for it is settled law that prohibition may be used, upon a proper showing, to keep a court within the limits of its lawful authority in a given case, no less than to prevent cognizance of causes not committed by law to its jurisdiction. In the case in hand, no exception in regard to the mere form of procedure, either on the circuit or in this court, is taken. Both parties deal with the substance of the dispute, and so will we.

The constitution of Missouri declares that all elections by the people shall be by ballot. Const. 1875, art. 8, § 3. It contains other commands, intended to secure protection to the voter in regard to the secrecy of his ballot. But it adds "that in all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be prescribed by law." It also confers jurisdiction to try and determine all contested elections of public officers, except governor and lieutenant governor, upon the judiciary, and declares that the general assembly shall designate the court or judge by whom the several classes of contests shall be tried, and shall regulate the manner of trial, etc. Const. 1875, art. 8, § 9. The organic law also directs the general assembly to provide for the registration of all voters in cities and counties having a population of more than 100,000 inhabitants. Const. 1875, art. 8, § 5. By an act approved March 27, 1883, any court before which any contested election may be pending is authorized to issue a writ for the opening and counting of ballots, under certain safeguards, mentioned in a later section (3) of the same statute. But the language of that law requires the writ to go "to the clerk of the county court of the county in which the contested election was held." Laws 1883, p. 91, § 1. The act of March 27, 1883, has been embodied in the revision of 1889 (sections 4721-4726), as part of chapter 60, on "Elections." The position of the plaintiff in the case at bar is that this law confers the only authority for such an examination of the ballots as is impending in the circuit court in the contest of De Bord against McCurdy, and that it applies only to county clerks, and cannot be made to apply to the recorder of voters of Kansas City without violence to its express terms. If the section above quoted stood alone, the contention of the plaintiff would have very serious weight. But it does not now stand alone. The section belongs to a somewhat elaborate scheme of legislation touching elections, and it is hence necessary to see whether other parts of that legislation, on the same topic, indicate a legislative purpose to enlarge the literal scope of the language on which plaintiff, McCurdy, relies. If the position of the latter is correct, no examination of ballots cast in Kansas City can be had, in contested elections, under the existing law. It is our duty to determine whether that is the true meaning and effect of the law of Missouri.

At the same session of the general assembly which produced the act of March 27, 1883, "An act to provide for the registration of all voters in cities having a population of more than 100,000 inhabitants," etc., approved March 31, 1883, was passed. Laws, 1883, p. 38. It provides for the appointment of a recorder of voters in cities of the size mentioned, and, among other things, names him as the custodian of the ballot boxes and ballots, and declares that "the recorder of voters shall not allow the same to be inspected or handled unless in case of contested elections, or unless the same shall become necessary to be used in evidence, and then only on an order of a proper court." Laws 1883, p. 45, § 20. The act of March 31, 1883, was ingrafted, with some amendments, upon the charter of cities of the first class in the revision of 1889 (sections 987 to 1014). It will not be needful now to inquire whether the form of revision then followed, in respect of this topic, was entirely correct; for if not the law of 1883 remained, while if that mode of revision was sound our judgment in the case in hand would not be different. The section (20) last mentioned, as it appears amended in the Revised Statutes of 1889, declares that the recorder of voters shall safely keep the ballots, etc., for 12 months, not inspecting their contents, or allowing any one else to do so, "except upon a lawful order of a court in case of a contested election." Rev. St. 1889, § 1006. Section 24 of the act of March 31, 1883, contained the following language, which was re-enacted in 1889, with a change of the word "act" into "article" (section 1010), viz.: "All elections in such city shall be conducted in all respects as provided in this act, and subject to all the provisions of the Revised Statutes, entitled `Of Elections,' so far as the same do not conflict with this act." Another section of the act of March 31, 1883, has some bearing on the present discussion. In the revision of 1889 it does not appear, but other language appears instead, — language which at the time was no doubt supposed to be equivalent in effect to the first draft. Changed conditions, however, make the difference of text noteworthy. So we place the two sections side by side, viz.:

                  Act 1883, § 26:            Rev. St. 1889, § 1012
                 "The recorder of voters          "In cities not within
                shall perform all duties         counties, the recorder of
                now required of clerks of        voters shall perform all
                county courts by general         duties now required of
                law, and shall have the          clerks of county courts by
                same power and authority         general law, and shall have
                of such clerks for the purposes  the same power and authority
                herein stated."                  of such clerks for
                                                 the purposes herein stated."
                

In 1889 the so-called "Australian Ballot Law" was first enacted in this state. It was passed as a separate statute. Laws 1889, p. 105. But it was printed in the revision of that year as article 3 of the chapter on "Elections." In that statute we find the following section, referring to recorders of voters, and indicating in some measure the legislative view of their proper place in the election system, viz.: "Sec. 4793. The powers and duties herein given to and imposed upon the clerks of the county courts of the several counties shall be exercised in reference to the city of St. Louis and to Kansas City, and to any...