State ex rel. Bates v. Remmers

• Decision Date: 18 July 1930
• Docket Number: No. 30630.,30630.
• Citation: 30 S.W.2d 609
• Parties: THE STATE EX REL. WILLIAM MAFFITT BATES v. OLIVER T. REMMERS ET AL., Composing Board of Election Commissioners of City of St. Louis.
• Court: Missouri Supreme Court

30 S.W.2d 609

THE STATE EX REL. WILLIAM MAFFITT BATES v. OLIVER T. REMMERS ET AL., Composing Board of Election Commissioners of City of St. Louis.

No. 30630.

Supreme Court of Missouri. Court en Banc.

July 18, 1930.

Prohibition.

WRIT MADE ABSOLUTE.

Henry Kortjohn, Jr., for relator.

(1) This court has on numerous occasions directed its writ of prohibition against the Boards of Election Commissioners when they attempted to exceed their authority and power. State ex rel. Goldman v. Hiller, 278 S.W. 708; State ex rel. Hollman v. McElhinney, 286 S.W. 951. It is the nature of the act, and not the character of the board or tribunal proceeded against, which determines the propriety of the writ. State ex rel. Brewen-Clark Syrup Co. v. Workmen's Compensation Commission, 8 S.W. (2d) 899. (2) The statutes involved for construction in this cause are Secs. 4830, 4828, R.S. 1919. (3) A party nominee before the election has a legal status which will be protected. State ex rel. Guion v. Miles, 210 Mo. 174. (4) The above statutes were construed by this court in determining where candidates for circuit judge must file their declarations to have their names printed on primary election ballots. State ex rel. Garesche v. Roach, 258 Mo. 551. (5) The court will take judicial notice of the fact that Article IV, Section 11, of the Constitution of Missouri, sets out the various senatorial districts and that said section sets out that the Thirty-second Senatorial District is entirely within the city of St. Louis, as well as the Twenty-ninth, Thirtieth, Thirty-first, Thirty-third and Thirty-fourth districts.

Julius T. Muench and Oliver Senti for respondents.

(1) Sec. 4830, R.S. 1919, in so far as it governs the place of filing by a candidate for State Senator in a district wholly within the city of St. Louis, has never been construed. (2) A majority or plurality of votes for an ineligible candidate, while conferring upon him no right to the office, is effectual, so far as to defeat his opponent. Sheridan v. St. Louis, 183 Mo. 25. A candidate, therefore, should be permitted to challenge the right of the board to place the name of his opponent upon the ballot.

PER CURIAM:

This is an original proceeding in prohibition whereby relator seeks to prohibit the Board of Election Commissioners of the City of St. Louis from printing upon the official ballot, to be used by the voters at the August, 1930, primary election, the name of Sylvester A. Nangle as a candidate upon the Republican ticket for nomination as State Senator in the Thirty-second Senatorial District. Respondents waived the issuance and service of our provisional rule and filed their return to the petition as and for such writ. Relator has filed his motion for judgment on said return. The parties have submitted the case upon briefs without oral argument. By leave Sylvester A. Nangle, designating himself as "amicus curiae," has also filed a brief.

The facts gathered from the pleadings need only be briefly outlined. The Thirty-second Senatorial District lies wholly within the limits of the city of St. Louis. A State Senator to represent said district is to be elected at the coming general election. A primary election to select the nominees of the Republican party and other parties for said office is to be held in said district on August 5, 1930. Both relator and Mr. Nangle reside in said district, are members of the Republican party and possess all the qualifications required of State Senators. Both paid the required fee to the treasurer of the State Committee of the Republican Party.

On or before June 6, 1930, relator filed in the office of the Board of Election Commissioners of the City of St. Louis his declaration of candidacy for the Republican nomination for said office and accompanied said declaration by the statutory receipt. Mr. Nangle filed no declaration of candidacy for said nomination with said board, but filed a declaration of candidacy in the office of the Secretary of State at Jefferson City, Missouri, and said Secretary of State has certified his name to the Board of Election Commissioners of the City of St. Louis as a candidate for such nomination upon the Republican ticket.

Relator caused to be filed with the Board of Election Commissioners a petition setting out the foregoing and other facts and notified Mr. Nangle thereof. He and his counsel appeared before the board and it heard evidence and argument and decided that, notwithstanding relator's protest, it would print upon the official ballot the name of Mr. Nangle as a candidate for the Republican nomination for State Senator in the Thirty-second Senatorial District. Respondents admit that the printing of Mr. Nangle's name upon the ballot will cause additional public expense and that, if his name cannot lawfully be placed upon said ballot, the placing of his name thereon will create confusion and will cause irreparable damage to relator.

Relator asserts, respondents seemingly admit, amicus curiae does not dispute, and we fully agree, that prohibition is the appropriate remedy if the Board of Election Commissioners is exceeding its authority in printing upon the official ballot a name which is not entitled to be printed thereon. That remedy has been frequently so employed. [State ex rel. Goldman v. Hiller (Mo. Sup.), 278 S.W. 708; State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 915.] The use of the writ of prohibition is not confined to courts alleged to be exceeding their jurisdiction. It is frequently used to prevent boards, commissions and other public bodies exercising quasi-judicial powers, from the doing of unauthorized acts or acts in excess of the authority vested in them. [32 Cyc. 601.]

Section 4830, Revised Statutes 1919, reads as follows: "No person shall file more than one written declaration indicating the party designation under which his name is to be printed on the official ballot, and all declaration papers shall be filed as follows: 1. For state officers, representatives in congress, courts of appeals and circuit judges, and those members of the senate and assembly whose districts comprise more than one county, in the office of the secretary of state. 2. For officers to be voted for wholly within one county or in the city of St. Louis, in the office of the county clerk of such county or the office of the election commissioners of the city of St. Louis." (Italics ours.)

The Thirty-second Senatorial District does not comprise more than one county. It lies wholly within the city of St. Louis and is one of six such districts into which the territory comprising the city of St. Louis is divided. [Laws 1901, p. 273; Note to Art. IV, Sec. 11, Missouri Constitution; State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40; State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017.]

It appears too clear for argument that the place...