State ex rel. Beach v. Lobsinger

• Decision Date: 22 April 1879
• Citation: 7 Mo.App. 106
• Parties: STATE OF MISSOURI, EX REL. L. B. BEACH, Appellant, v. ANTONE LOBSINGER, Respondent.
• Court: Missouri Court of Appeals

7 Mo.App. 106

STATE OF MISSOURI, EX REL. L. B. BEACH, Appellant,

v.ANTONE LOBSINGER, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 22, 1879.

1. Jurisdiction to try a contested-election case for justice of the peace in the city of St. Louis was not vested in the Municipal Assembly, the mayor, and the comptroller by the adoption of the Scheme and Charter.

2. In the absence of any general law on the subject, the Circuit Court has exclusive jurisdiction, and will go into the question in a proceeding in the nature of a quo warranto, and will, in the absence of any express prohibition, if necessary, examine the ballots to determine the right to the office.

3. Under the existing Constitution, the Legislature having prescribed no rule, there can be no inspection of ballots after the vote is counted.

4. The act of 1877 (Sess. Acts 1877, p. 246) provides no restrictions and safeguards against the mischief contemplated by the constitutional provision.

APPEAL from St. Louis Circuit Court.

Affirmed.

MCGINNIS & SEARLE, for appellant: The Circuit Court was the proper tribunal.-- Groome v. Guinn, 43 Md. 572. Quo warranto was the proper proceeding.-- McCrary on Elec. 264; Walker's Am. Law, 656; 3 Bla. Comm. 263. The State ex rel. v. Fourley, 56 Mo. 113; The State ex rel. v. Kemp, 46 Mo. 528; Hunter v. Chandler, 45 Mo. 452; The State ex rel. v. Lingo, 26 Mo. 496; The State ex rel. v. Stewart, 32 Mo. 379; The State ex rel. v. Lawrence, 38 Mo. 535. In such a proceeding the ballots may be examined.-- The State ex rel. v. Sutton, 3 Mo. App. 388; Taylor v. Taylor, 10 Minn. 107; The People v. Jones, 20 Cal. 50; Calaveras County v. Brockway, 30 Cal 325; The State v. Johnson, 17 Ark. 407; The People v. Seaman, 5 Am. Dec. 409; Attorney-General v. Barstow, 4 Wis. 567; 17 Ill. 167.

HITCHCOCK, LUBKE & PLAYER, for the respondent: Under sect. 3 of art. 8 of the Constitution, the ballots cannot be counted except under such regulations as may be prescribed, and as no act under this provision has been passed, there is a casus omissus.-- Stamps v. Bridwell, 57 Mo. 22; Ex parte Donaldson, 44 Mo. 149. The right to count and compare the ballots is to be given only in “contested election” cases, not in cases of “ quo warranto.”-- The State ex rel. v. Fourley, 56 Mo. 113; The State ex rel. v. Vail, 53 Mo. 97, 117, 118. In the Municipal Assembly, the mayor and the comptroller was vested the jurisdiction to try this case.--Rev. Stats., sect. 5494; Wag. Stats. 573, sect. 50. There being a tribunal wherein the contest of this election may be tried, namely, the Municipal Assembly of the City of St. Louis, that mode of trial is exclusive, and the relator here has on that ground also no right to go behind the respondent's commission.--High on Rem., sect. 617; The State v. Marlow, 15 Ohio St. 114; The State v. Taylor, 15 Ohio St. 137; The State v. Buskirk, 43 Mo.--.

BAKEWELL, J., delivered the opinion of the court.

This is an information in the nature of a quo warranto. The relator contests the election of the respondent to the office of justice of the peace for the district composed of the Twenty-fourth and Twenty-fifth Wards of the City of St. Louis. It appears that at the election on November 5, 1878, James Meeghan and the respondent were opposing candidates for that office. The allegation is, that a large number of fraudulent votes were cast and counted for Lobsinger, in consequence of which he was returned, received a certificate of election and his commission, and entered upon the discharge of the duties of the office. The return admits the election, pleads the returns, denies that any fraudulent votes were cast for the respondent, and avers that he was duly elected; and pleads in bar that Meeghan should have contested the election by a proceeding in the nature of an election contest, and that the Circuit Court has no jurisdiction of the cause. The relator replies by a general denial.

The relator moved the court to appoint a commissioner to open and inspect the ballot-boxes, and for an order on the register to permit inspection of the ballots. The motion was overruled. On hearing of the cause, the relator offered to put in evidence the ballot-boxes, and to prove that certain ballots contained in them, and cast for the respondent, were fraudulent. Papers purporting to be copies of these fraudulent ballots were exhibited. The court sustained the objection of the respondent to the introduction of the ballots, on the ground that it had no power to direct the boxes to be opened and the ballots to be examined. The relator took a nonsuit, with leave, which the court refused to set aside, and the cause is brought here by appeal.

The General Statutes provide (Wag. Stats. 573, sect. 50) that “if any election of any * * * justice of the peace * * * or other county officer be contested, such contest shall be heard and determined by the County Court of the county in which the election is held, unless the decision of such contest be otherwise provided by law.” The adoption of the Scheme and Charter at the election of August 22, 1876, did away with the County Court of the then county of St. Louis, and abolished the machinery of county government over the territory within which this election was held. An act of the General Assembly, approved May 2, 1877, entitled “An act to define and conform the laws of the State to section 23, article 9, of the Constitution,” declares that “all acts and parts of acts which provide for the performance of any duty or trust by any County Court in this State shall also include the Municipal Assembly and the mayor and comptroller of the City of St. Louis.”

It is contended by the respondent that the effect of this enactment was to vest the jurisdiction to try a contested election for justice of the peace in the Municpal Assembly, the mayor, and the comptroller. But the act can have no such effect, because the Constitution in force at the time of its passage provides (Const. 1875, art. 8, sect. 9) that “the trial and determination of contested elections of all public officers, whether State, municipal, judicial, or local, except governor and lieutenant-governor, shall be by the courts of law, or by one or more of the judges thereof. The General Assembly shall 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 the incidents thereof.” As no general law on the subject has been passed by the Legislature, the Circuit Court has exclusive original jurisdiction (Wag. Stats. 430, sect. 2; The State ex rel. v. Lingo, 26 Mo. 496); and, in the absence of any statute regulating the matter, they will go into the question in a proceeding in the nature of quo warranto. The State ex rel v. Sutton, 3 Mo. App. 388; The State ex rel. v. Fourley, 56 Mo. 107; The State ex rel. v. Kempf, 46 Mo. 528; The State ex rel. v. Stewart, 32 Mo. 379; The State ex rel. v. Lawrence, 38 Mo. 535; Hunter v. Chandler, 45 Mo. 452.

Where no other means for such investigation are provided, in the absence of any constitutional or legislative prohibition, the qualifications of electors and the legality of the ballot may be examined in a proceeding by quo warranto, in the name of the State, to determine the right to an elective office. The State ex rel. v. Fourley, supra; ...