State v. Hough

• Decision Date: 26 February 1906
• Citation: 193 Mo. 615,91 S.W. 905
• Parties: STATE ex rel. WELLS v. HOUGH, Judge, et al.
• Court: Missouri Supreme Court

91 S.W. 905

193 Mo. 615

STATE ex rel. WELLS v. HOUGH, Judge, et al.

Supreme Court of Missouri.

February 26, 1906.

1. ELECTIONS — CONTEST — NOTICE — SUFFICIENCY.

Const. art. 6, § 38, and Rev. St. 1899, § 4681, require all writs and process to run in the name of the state and all writs to be attested by the clerk of the court from which they are issued. Const. art. 8, § 9, declares that the trial of contested elections shall be by the courts of law, and authorizes the general assembly to designate the court or judge by whom the contest shall be tried and to regulate the manner of trial and incidental matters. Rev. St. 1899, § 7029, in relation to election contests, gives jurisdiction to the circuit courts, and provides for a notice to be given by the contestant to the contestee, which shall specify the grounds upon which the contestant relies. Held, that a proceeding to contest an election is not a case or suit which requires the filing of a petition in court and the suing out of a writ of summons running in the name of the state, and a notice in conformity with section 7029 is due process.

2. SAME.

Under Rev. St. 1899, § 7029, requiring the contestant in an election contest to serve a notice thereof on the contestee 15 days before the term of court at which the election shall be contested, a notice was not insufficient because it was not first filed with the clerk and then served on the contestee, and because it did not specify that it had been filed, nor the day on which it would be filed; but, having been filed with the clerk 2 days after it was served on the contestee, and more than 20 days before the commencement of trial, it was sufficient.

3. SAME—RECITALS OF NOTICE.

A notice was not insufficient because it stated that the contestant "shall contest."

4. PROHIBITION—ELECTION CONTEST.

Const. art. 8, § 9, and Rev. St. 1899, § 7029, having given the circuit court power to hear and determine election contests, the Supreme Court will not prohibit a circuit court from proceeding with an election contest because in the opinion of the Supreme Court the notice of contest may appear defective or insufficient, where the defects are such that they may be remedied by an amendment of the notice rendering it more specific.

5. SAME.

On a petition for prohibition to restrain a circuit court from making an order for the opening of ballot boxes in an election contest, the Supreme Court will not decide whether sufficient preliminary proof and showing has been made to justify the court in ordering the boxes to be opened, where the order does not seem to be in excess of the jurisdictional powers of the circuit court.

In Banc. Petition by the state, on the relation of Rolla Wells, for a writ of prohibition to restrain Judge Warwick Hough, of the circuit court of the city of St. Louis, from proceeding in an election contest brought by John A. Talty against relator for the office of mayor of the city of St. Louis, to prohibit the election commissioners from opening the ballot boxes, and to prohibit said Talty from further prosecuting his contest. Writ denied.

James Hagerman, J. W. Jamison, and Lee W. Hagerman, for relator. Selden P. Spencer, Wm. Dee Becker, John S. Leahy, Edward D'Arcy, and Walter J. G. Neun, for respondents.

GANTT, J.

This is an original proceeding in this court to obtain a writ of prohibition in behalf of the plaintiff, Rolla Wells, prohibiting the Honorable Warwick Hough, as judge of the circuit court of the city of St. Louis, and the said circuit court, from entertaining further jurisdiction, and from making other or further orders in the election contest brought by defendant Talty against the plaintiff Wells for the office of mayor for the city of St. Louis, and to prohibit the defendant election commissioners from opening the ballot boxes under the order of said court made in said election contest, and to prohibit the defendant Talty from further prosecuting his said contest.

In substance, the petition alleges that the plaintiff was elected mayor of the city of St. Louis at the municipal election held in said city on Tuesday the 4th of April, 1905; that he was the nominee and candidate of the Democratic party, and that defendant Talty was the nominee and candidate of the Republican party for the said office of mayor; that plaintiff is a citizen of the United States and of the state of Missouri, and is a duly qualified and registered voter in the city of St. Louis in said state and possessed of all of the qualifications prescribed and required by law and the charter of said city, and to entitle him to be elected to the office of mayor of said city, and that the defendant, the Honorable Warwick Hough, is and was at all times mentioned herein judge of the circuit court of said city of St. Louis, and the defendants Andrew C. Maroney, Thomas K. Skinker, and Benjamin Schnurmacher are election commissioners and comprise the board of election commissioners for said city; that the defendant Andrew C. Maroney, Thomas K. Skinker, and Benjamin Schnurmacher, as said election commissioners of said city, canvassed the returns made to them by the judges and clerks of the various voting precincts and wards of said city at said election, and on the 11th day of April, 1905, that being the date on which said canvass was finished, said board of election commissioners found and announced that, upon the returns made to a convass by them, plaintiff had received more votes for the office of mayor of the said city than that cast for the defendant John A. Talty, and found that plaintiff had been elected to, and was entitled to hold, said office for a term of four years, and in accordance with said finding caused to be issued to plaintiff a certificate of his said election, and issued to him a commission of office for a term of four years; that plaintiff thereupon took and subscribed the oath of office required by law as mayor for said city, and on the ____ day of April, 1905, entered into the possession of, and has ever since and is now discharging and performing the duties of, said office.

Plaintiff states that the said defendant Talty has attempted, by and through the procedure hereinafter mentioned, to contest plaintiff's said election, and caused to be delivered to plaintiff by a deputy sheriff of the said city of St. Louis, on the 27th day of April, 1905, an alleged notice of contest. This notice is set in haec verba in the body of the petition. Without repeating it at length, it is sufficient for the purpose of this opinion to say that the contestant Talty notified the plaintiff Wells that, inasmuch as they had been opposing candidates for the office of mayor of the city of St. Louis, at the election held on the 4th day of April, 1905, and the plaintiff having been duly declared elected by the board of election commissioners to said office on the face of the returns made to them by the judges and clerks of said election at the official count by said board of election commissioners on the 11th day of April, 1905, and, having received a certificate of election, the contestant Talty "shall at the first term of the circuit court of the city of St. Louis, to be held 15 days after said official counting of said vote and the service of this notice, to wit, at the term of the circuit court of said city to be begun and held at the courthouse therein on Monday the 5th day of June, 1905, contest your election to said office." The notice further alleged "that the contestant Talty, at the time of said election and at all times hereinafter mentioned, possessed and still possesses all the qualifications necessary to entitle him to hold the office of mayor in and for the city of St. Louis, and was then, and at all times hereinafter mentioned, had been and is now eligible to hold the same, and shall contest plaintiff's election to said office, upon the following grounds." The notice then in separate paragraphs proceeds to charge that a certain number of ballots were in various voting precincts in the city counted by the said election commissioners respectively for the contestant or contestee, but alleged that none of the ballots counted for the contestee Wells were numbered in the order in which they were received, nor was the number recorded by the election officers on the list of voters opposite the name of the voter who presented such ballot, nor were the names or initials of any of the judges of election written on said ballots so counted for the contestee; and that in none of said precincts was the name or street or number of residence of any voter whose ballot was counted for contestee entered upon either of the pollbooks by the clerks of said election under its proper heading or at all, nor was the number of any such voter whose ballot was counted for contestee placed opposite his name in the pollbook in the column headed "number," and charging that in each of said wards a larger number of ballots were cast for the contestant Talty for said office. It is further alleged, in paragraph 7, that in certain precincts of the Fourth, Sixth, Sixteenth, and Twenty-First Wards, Democratic judges and clerks of election were allowed to officiate, and did officiate, as judges and clerks of election in said several precincts, who did not reside in the respective precincts in which they officiated, and were not qualified to vote in said precincts. It is then charged that in certain precincts for the Fourth Ward 100 legal voters were duly registered according to law and entitled to vote in several precincts at said election, appeared at their respective voting places, and offered and undertook to cast their votes in favor of contestant for the office aforesaid, all of which said votes the judges of election, acting at said several voting places, refused to receive or accept. And further that the judges and clerks of election acting at the several voting precincts within said city did not correctly count the legal ballots cast at...