State ex rel. Frank v. Becker

Decision Date06 September 1928
Docket Number29171
Citation9 S.W.2d 153,320 Mo. 1087
PartiesIn Re Nathan Frank
CourtMissouri Supreme Court

Writ denied.

Victor Packman, of St. Louis, and Ira Lohman, of Jefferson City, for relator.

Stratton Shartel and Smith Atwood, both of Jefferson City, for respondent.

All concur, except Walker, J., absent.

OPINION

PER CURIAM

This is an original proceeding in mandamus. The writ will have to be denied. It is not our practice to prepare formal opinions in cases in which alternative or provisional writs are denied in the first instance, but owing to the public interest involved we deem it proper to state briefly the reasons for our action in this instance.

Petitioner seeks our writ of mandamus to compel Charles U. Becker Secretary of State of the State of Missouri, to publish a certified statement of the result of the last primary election as to candidates for the office of United States Senator, disregarding in his final tabulation the returns from the counties of Jackson, Buchanan and Pemiscot relating to candidates for the Republican nomination for United States Senator, which are alleged to be so arbitrary and false as to be a nullity, and to mail to the chairman of the Republican State Central Committee a certificate in accordance therewith, and "to certify to the county clerk of each county in the State of Missouri, the petitioner, Nathan Frank, as the nominee for United States Senator on the Republican ticket." Petitioner also prays "that in the meantime the said Secretary of State be enjoined from publishing a certified statement showing the name of any other candidate as having received the greatest number of votes cast at said primary election, and that he be further enjoined from mailing to the chairman of the Republican State Central Committee a certificate showing the name of any nominee other than petitioner, and that he be further enjoined from certifying to the county clerk of each county in the State of Missouri, the name of any other person than petitioner as the nominee of United States Senator on the Republican ticket to be voted on at the November, 1928, election, and for such further orders and relief in the premises as to the court may seem meet and proper." The Secretary of State has entered his voluntary appearance, waived notice, issuance and service of the alternative writ and consented that the petition may be taken as and for the writ.

Election contests in this State are purely statutory. [State ex rel. v. Hough, 193 Mo. 615, l. c. 643.] Petitioner avers that no statutory method has been provided for contesting a primary election, and that, therefore, he may resort to a proceeding in mandamus originally filed in this court and by this strictly legal remedy compel the Secretary of State to certify his own name as the Republican nominee for United States Senator instead of the name of another, whose name petitioner says will be so certified from the face of the returns made to the Secretary of State unless we grant the writ of mandamus herein prayed. The duties of the Secretary of State in connection with returns certified to him in state primary elections are thus indicated in Revised Statutes 1919:

"Sec. 4846. As soon as the state canvass of a primary shall be certified to him, the Secretary of State shall cause to be published a certified statement of the result of such primary as to candidates for state officers, and representatives in Congress, and any other candidate whose district extends beyond the limits of a single county, and shall mail to the chairman of the state central committee of each party so much of such certificate as relates to his party.

"Sec. 4847. Not less than twenty days before any November election, the Secretary of State shall certify to the county clerk of each county within which any of the electors may vote for the candidates for such offices, the name and description of each person nominated for any such office as specified in the nomination papers."

Under the foregoing statutes the duty of the Secretary of State is plain. He must publish the result of the primary election as it appears from the state canvass certified to him, and not otherwise. It thus appears that we are asked to command him to proceed in a manner contrary to the plain terms of the above statute, and do what under the law he has no power to do, namely, reject or go behind the results of the canvass of the returns of the precinct judges and clerks certified to him by the county clerks of the various counties in the State. In such case mandamus does not lie. [18 R. C. L. 268.]

Does the allegation that some of the returns so certified to the Secretary of State are false and fraudulent change the situation and make this remedy available? While petitioner's pleading is to the effect that the results certified by the county clerks of the three counties named insofar as they relate to the nomination of the Republican candidate for United States Senator, are false in fact, fraudulent and a nullity and hence should be disregarded, yet he does not further plead that such facts are apparent on the...

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7 cases
  • State ex rel. Arena v. Barrett
    • United States
    • Missouri Supreme Court
    • 1 Marzo 1943
    ... ... 200, 96 S.W.2d 329; State ex rel. Miller v ... O'Malley, 342 Mo. 641, 117 S.W.2d 319; Mo. Const., ... Art. II, Secs. 9, 28; State ex rel. Frank v. Becker, ... 320 Mo. 1087, 9 S.W.2d 153; Mo. Const., Art. II, Sec. 30; Mo ... Const., Art. IV, Sec. 46. (5) The General Assembly had no ... ...
  • Long v. Consolidated School Dist. No. 7, Kingsville, Johnson County
    • United States
    • Missouri Supreme Court
    • 3 Octubre 1932
    ... ... 1, 293 S.W. 780; Byers ... v. Weeks, 105 Mo.App. 72, 79 S.W. 485; State ex rel ... v. Cartwright, 122 Mo.App. 257, 99 S.W. 48; Sawyer ... v ... 187; State ex rel. v. Hackman, ... 274 Mo. 565; In re Nathan Frank, 320 Mo. 1090; ... State ex rel. v. Dillon, 87 Mo. 487; State ex ... ...
  • State ex rel. Chilcutt v. Thatch
    • United States
    • Missouri Supreme Court
    • 17 Mayo 1949
    ... ... circuit judge is dissolved and the provisional rule in ... prohibition is made absolute ...          Frank ... B. Williams, J. Howard Hannah and William A ... Wear for relator ...          (1) A ... court of equity has no jurisdiction in ... an act contrary to and imposed upon him by statute. State ... ex rel. Frank v. Becker, 9 S.W.2d 153, 320 Mo. 1087; ... Secs. 2476-2478, R.S. 1939; Secs. 11488, 11614, 11615, 11616, ... R.S. 1939. (5) The right to contest an election ... ...
  • Felker v. City of Sikeston
    • United States
    • Missouri Court of Appeals
    • 25 Abril 1960
    ...for that purpose. In the meantime, we have no right to supply by judicial fiat this legislative void. State ex rel. Frank v. Becker, 320 Mo. 1087, 1092, 9 S.W.2d 153, 155; Kehr v. City of Columbia, 136 Mo.App. 322, 330, 116 S.W. 428, 430; Taaffe v. Ryan, 25 Mo.App. 563, 567. It may not be a......
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