State ex rel. McDonald v. Lollis, 30685.
| Citation | 33 S.W.2d 98 |
| Decision Date | 21 October 1930 |
| Docket Number | No. 30685.,30685. |
| Parties | THE STATE EX REL. WILLIAM P. McDONALD v. OSCAR F. LOLLIS, County Clerk. |
| Court | United States State Supreme Court of Missouri |
John D. McNeely, William Morton, Joseph H. Sherwood and Lucian J. Eastin for relator.
(1) The Act of 1929 (Laws 1929, p. 194), is unconstitutional. It is in violation of Article VI, Section 1 of the Constitution. The plain purport of this act is to give judges of circuit courts in vacation jurisdiction and authority to hear and determine contests in primary elections. This the Legislature cannot do. State ex rel. v. Woodson, 161 Mo. 444. This case has been followed and affirmed in: Parsons v. Harvey, 281 Mo. 424; State ex rel. v. Barrett, 290 Mo. 307; In re Lechter, 269 Mo. 150; Lusk v. Atkinson, 268 Mo. 116; State ex rel. v. Tucker, 266 Mo. 390; Johnson v. Railroad, 259 Mo. 544; State ex rel. v. Reynolds, 257 Mo. 31; State ex rel. v. Nast, 209 Mo. 721; State ex rel. v. Dearing, 184 Mo. 660. The Act gives judges in vacation power to hear and determine contests of primary elections, and to open, inspect and recount the ballots. It attempts to confer judicial powers upon a judge in vacation, and a judge in vacation is no more a court than is a canvassing board. State ex rel. v. McElhinney, 315 Mo. 731. (2) Mandamus is the proper remedy. State ex rel. Ray County v. Hackmann, 295 Mo. 417. The judgment being void, it may be attacked collaterally. Childs v. Shannon, 16 Mo. 335; Leahy v. Trust Co., 296 Mo. 595; Howey v. Howey (Mo.), 240 S.W. 457; Hope v. Blair, 105 Mo. 85; Adams v. Cowles, 95 Mo. 507; Brown v. Moody, 64 Mo. 547. (3) The motion requesting the peremptory writ notwithstanding the return, is the proper pleading upon the facts set up by respondent. State ex rel. v. Adams, 161 Mo. 362; State ex rel. v. Neville, 110 Mo. 348; State ex rel. v. Smith, 104 Mo. 666; State ex rel. v. Calhoun, 201 Mo. App. 374.
W.J. Boyd for respondent.
(1) The Act of 1929 (Laws 1929, p. 194) is constitutional. Relator, in claiming said Act to be in violation of Article 6, Section 1, of the Constitution, seems to have lost sight of the words in said section reading as follows: "Except as in this Constitution otherwise provided." By Article 8 of the Constitution as amended February 26, 1924 (Laws 1925, p. 410) the General Assembly of the State of Missouri was expressly authorized to, "by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto. Pursuant to such constitutional authority, the General Assembly enacted the law in question, providing for a recount of ballots in contests of primary elections and providing, as it had a constitutional right to do, that such contests should be instituted by the contestor filing his verified petition in the circuit court of the county where irregularities are alleged to have occurred and presenting such petition to such court, or a judge thereof in vacation. (2) The following are some of the instances in which a judge of a court in vacation is authorized to act and does act and perform judicial functions: (a) In condemnation proceedings (Laws 1921, pp. 198-200); (b) Habeas corpus (Sec. 1877, R.S. 1919); (c) In granting injunctions (Sec. 1947, R.S. 1919); (d) In granting writs of mandamus (Sec. 1982, R.S. 1919); (e) In granting writs of prohibition (Sec. 2058, R.S. 1919); (f) In matters relating to the State Department of Finance and administrations of the affairs of closed banks and trust companies (Laws 1929, pp. 210 to 215).
Mandamus to compel respondent, County Clerk of Buchanan County, to print the name of relator on the ballots to be submitted to the voters at the general election to be held in November, 1930, as a nominee for the office of Justice of the Peace of Washington Township, Buchanan County, Missouri. The alternative writ issued, to which respondent made return, and relator moved for judgment on the pleadings.
The sufficiency of the pleadings is not challenged and the facts are undisputed. A short statement of the pertinent facts will suffice.
Relator was one of twenty-two candidates on the Democratic ticket at the August, 1930, primary who sought the nomination for Justice of the Peace of Washington Township, Buchanan County, Missouri. Of the twenty-two candidates, but four could be nominated, and by law the nominations went to the four candidates receiving respectively the highest number of votes.
The returns of the primary election, made and canvassed as provided by law, showed that relator was one of the four candidates receiving the highest number of votes, and he received from the proper authorities a certificate of nomination.
Respondent in his return concedes the facts to be as above stated, but alleges, in substance, that J.B. (Jess) Brown, one of the candidates for said office, contested relator's nomination; that said contest was had in accordance with the provisions of Laws of Missouri 1929, pages 194, 196, and resulted in a judgment of the Circuit Court of Buchanan County adjudging that said J.B. (Jess) Brown received at said primary election two votes more than the number received by relator, and ordering respondent as county clerk to correct the records of said election to conform to said judgment; that in obedience to said mandate, respondent, as clerk of said county, did correct the records of the election as commanded by said judgment, and the record as corrected showed that said Brown received two votes more than respondent received, thus making said Brown one of the four candidates receiving the highest number of votes. The return alleges that by reason of said judgment, respondent lawfully certified the name of J.B. (Jess) Brown as one of the four nominees for said office, and for the same reason refused and still refuses to certify the name of relator as one of said nominees.
From the statement of facts, it is apparent that the determination of this case depends upon the validity of the contest proceedings.
The first point made by relator is that the statute under which the alleged contest was had is unconstitutional.
In determining relator's contention, it must be kept in mind that the State Constitution is not a grant of power to the Legislature, but is a limitation thereon. The legislative power, subject to the limitations contained in the Constitution, is vested in the General Assembly of the State. [Const., Art. 4, Sec. 1; Harris v. Compton Bond & Mortgage Co., 244 Mo. 664, 149 S.W. 603.] The Legislature may pass any law upon any subject not forbidden by the State or Federal Constitution. [State ex rel. v. Public Service Commission, 270 Mo. 547, 194 S.W. 287.]
There is no limitation in the Constitution which prohibits the Legislature from passing valid laws providing for the contest of primary or nominating elections, and for the opening, examination and recount of the ballots cast thereat. In 1929, the Legislature passed an act providing for the contest of primary elections and a recount of the ballots in the manner provided in said act. [Laws 1929, pp. 194 to 196.] There being no constitutional inhibition against the Legislature providing for the contest of primary elections, it had full authority to enact a law authorizing such contest, if the provisions of the law, as enacted, do not overstep constitutional limitations.
Section 2 of the 1929 Act, among other things, provides:
It will be noted that the act in question invests the judges of circuit courts in vacation, with jurisdiction and authority to hear and determine contests of primary elections. Section 1 of Article 6 of the Constitution provides that the judicial power of the State, as to matters of law and equity, except as otherwise provided in the Constitution, shall be vested in the courts named in said section. A judge of a court in vacation is not a court. It, therefore, logically follows that if the hearing and determination of the contest of a primary election in the manner provided in said act, is the exercise of judicial power, a law which attempts to confer such power on a judge in vacation would be in violation of Section 1 of Article 6 of the Constitution which lodges such power in the courts.
We entertain no doubt but what the hearing and determination of the contest of a primary election in the manner provided in the act in question, is the exercise of judicial power. Said act authorizes circuit courts or the judges thereof in vacation to order a recount of the ballots, order the production of all ballots, poll books, registration books, etc., pass upon the form of the ballot, determine the legality of the ballots and determine the qualifications of the voters whose ballots are in question. The act also provides that the ballot of no person found to be disqualified to vote at said primary election shall be counted.
Section 4 of the act, among other things, provides: ...
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