Barnes v. Gottschalk

• Decision Date: 27 November 1876
• Citation: 3 Mo.App. 111
• Parties: ROBERT A. BARNES et al. v. LOUIS GOTTSCHALK, Judge, etc., et al.
• Court: Missouri Court of Appeals

3 Mo.App. 111

ROBERT A. BARNES et al.

v.LOUIS GOTTSCHALK, Judge, etc., et al.

St. Louis Court of Appeals, Missouri.

Nov. 27, 1876.

1. Until the inferior court has been asked in some form, and without avail, to refrain from proceeding with the trial of a cause, or to dismiss the same, a superior court will not entertain an application for a writ of prohibition.

2. An officer can be required to certify to such facts only as are within his official knowledge.

3. Section 21 of article 9 of the Constitution, providing for the filing of a certificate by the mayor of the city of St. Louis and the presiding justice of the County Court of the county of St. Louis, necessarily implies the duty of an examination as to the facts to be certified. A certificate made by the clerk of the County Court of the facts required by that section would be a nullity.

4. Until the result of an election has been certified by the proper officer there can arise no case of a contested election.

5. Where the question before the superior court is one of rightful or usurped jurisdiction about to be assumed by the inferior court, it cannot be determined by the allegations in the pleadings, but the proposed action of the court is the test.

6. Mandamus will lie to compel the proper officer to certify the result of an election, but not to accomplish the purposes of a contested election.

7. Mandamus will not be refused because there might, under some other remedy, be an incidental determination of the right asserted, but followed by a judgment incapable of enforcing such right.

Per BAKEWELL, J., dissenting. 1. The certificate of the clerk of the County Court of the facts required to be certified, by section 21, article 9, of the Constitution, was prima facie evidence of the result of the election, and rendered an examination of the ballots and poll-books, and a certificate by the mayor and presiding justice, unnecessary.

2. Mandamus will not lie to determine the result of a contested election, under cover of an application to compel an officer to certify the result of an election.

3. In a mandamus proceeding, where issues of fact are to be tried, the trial is by jury; the evidence is viva voce, and it must fully support the issues raised, and none other.

4. In a mandamus proceeding the jurisdiction of the court to command the execution of the particular act or duty made the subject-matter of the writ must be clear.

5. In a mandamus proceeding to compel certain officers to certify the result of an election, the court has no power to appoint other persons commissioners to examine the ballots and poll-books, and report thereon, and such officers are in no way bound by such report when made.

6. Parties making an application for a writ of prohibition cannot be affected by any action of the respondents in the proceeding sought to be prohibited, where such applicants were not parties to that proceeding.

7. Prohibition will lie to arrest proceedings where the court, though rightfully entertaining jurisdiction, has exceeded its legitimate powers.

PETITION for prohibition.

Writ refused.

Alex. J. P. Garesché, for relators, cited: Sparks v. City of St. Louis, 10 Mo. 120; The State ex rel. v. Auditor, 36 Mo. 73; Beck v. Jackson, 43 Mo. 119; The State ex rel. v. Rodman, 43 Mo. 261; The State ex rel. v. Draper, 48 Mo. 217; The State ex rel. v. Steers, 44 Mo. 225; Bowen v. Hixon, 45 Mo. 345; The People v. Vail, 20 Wend. 14; Hadley v. Mayor, 33 N. Y. 605; Morgan v. Quackenbush, 22 Barb. 79; The People v. Leaman, 5 Denio, 412; The State v. Deliessime, 1 McCord, 65; The State ex rel. v. Church, 15 Minn. 459; Hulsemann v. Rems, 41 Penn. 401; The State ex rel. v. Coffee, 59 Mo. 67; The State ex rel. v. McReynolds, 61 Mo. 212; The State ex rel. v. Henkins, 43 Mo. 261; The State v. Ensworth, 44 Mo. 349; The State ex rel. v. Harrison, 38 Mo. 543; Sweet v. Herbert, 51 Barb. 312; Taylor v. Taylor, 10 Minn. 115; 2 Pars. Eq. Cas. 562; Shorrett's Case, 517; Carpenter's Case, 540; The State v. Vail, 53 Mo. 97; The State v. Townsley, 56 Mo. 107; 3 Bla. Com., sec. 122, p. 84; Quimbo Appo v. The People, 20 N. Y. 531; Darby v. Cozens, 1 Durnf. & E. 555; Leaman v. Souttz, 3 Durnf. & E. 3; Board of Comrs. v. Spitter, Barn. & Ald. 240; Thomas v. Mead, 36 Mo. 232; Howard v. Pierce, 38 Mo. 301; The State ex rel. v. Clark County Comrs., 41 Mo. 49; Vilt v. Owens, 42 Mo. 515; High on Rem., secs. 771, 781; Blaisdell v. Pope, 19 Mo. 159.

Glover & Shepley, for relators, cited: Clark v. McKenzie, 7 Bush, 523; The People v. Vancleve, 1 Mich. 362;Taylor v. Taylor, 10 Minn. 107; 20 Wend. 12; 4 Seld. 70; Calaveras County v. Brockway, 30 Cal. 326; The State v. Judge, 13 Ala. 805; The State v. Elwood, 12 Wis. 551; The State v. Saxton, 11 Wis. 27; The State v. Avery, 14 Wis. 122.

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

The petitioners allege that they are qualified voters, owners of real and personal estate, and tax-payers in the city and county of St. Louis, and, therefore, directly interested in the litigation of a certain cause now pending in the St. Louis Circuit Court, before Hon. Louis Gottschalk, a judge thereof, wherein the State of Missouri, at the relation of Thomas J. Henley and others of the defendants herein, is plaintiff, and Henry Overstolz, mayor of the city of St. Louis, and Chauncy F. Schultz, presiding justice of the St. Louis County Court, are defendants; that said cause is in the nature of a petition for mandamus to compel those officers to certify in duplicate, as provided by section 21, article 9, of the State Constitution, a copy of the Scheme and Charter alleged to have been adopted at an election held for that purpose in pursuance of section 20 of the same article. Petitioners set out at length the contents of the relators' petition for mandamus, and the proceedings in the Circuit Court thereupon. It thus appears that an alternative writ of mandamus was directed to the mayor and presiding justice; upon which they made their return, admitting that a certain Scheme and Charter had been framed and submitted to the people of St. Louis County, in the form prescribed by the Constitution, but declaring, in effect, that “whether said Scheme and Charter was duly ratified by a majority of all the qualified voters of the city and county voting at the said election” the respondents had not, nor were they by law required to have, any other or further knowledge than was derived from a certificate and abstract of the votes cast at said election, made by the clerk of the county of St. Louis, under his hand and official seal; that from this certificate it appeared that the Scheme and Charter were not ratified by the qualified voters, as alleged, but were, on the contrary, defeated and rejected; that, being so advised through said certificate and abstract, the respondents had refused to certify in duplicate a copy of the Scheme and Charter, as it would have been their duty to do if the same had been adopted. It further appears that an answer to this return was filed by the relators, in which they deny that the Scheme and Charter were defeated at the election, and aver that the contrary is true. They charge numerous errors and irregularities in the holding of the election, and deny the truth of the clerk's certificate. They conclude with a prayer that the mayor and presiding justice be required to “take such steps, by counting the ballots cast at said election or otherwise, as may be necessary to give them full, true, and certain information in regard to the result of said election.”

This answer was followed by a reply from the respondents. Referring separately to each charge of error or irregularity at the election precincts, they aver that they have no knowledge or information thereof sufficient to form a belief; nor have they any such knowledge or information as to whether the clerk's certificate is true or untrue in any of its averments.

Upon the pleadings thus framed, the court made an order declaring the issues, and appointing five commissioners to try them. The order proceeds as follows:

“That said commissioners proceed to examine and count said ballots in said election precincts, and report:

First. The number of ballots duly numbered according to law, and of these how many were cast for or against the Scheme and Charter in each of said election precincts.

Second. The number of ballots not numbered according to law, and of these how many of them were cast for or against the Scheme and Charter in each of said precincts.

Third. Any other fact relative to the true result of the election, which may appear from the inspection, examination, and count of the ballots.

And it is further ordered that said commissioners may, in case of doubt or difference of opinion, report any fact to this court and pray for further instructions.”

At this point the petitioners appear before us, and, averring that the proceedings of the Circuit Court are in assumption of a jurisdiction and of powers not vested in it by law, ask that we issue a writ of prohibition to stop them.

The first obstacle in the way of this application may be considered a purely technical one; but a long and unwavering course of judicial decisions has, in the present aspect of the record, made it insurmountable. It nowhere appears that the Circuit Court was asked, in any form, to refrain from proceeding, or to dismiss the case, for want of jurisdiction. The rule is inflexible that, until this is done without avail in the inferior court, an application for prohibition will never be entertained by a court of supervisory authority. Edmundson v. Walker, Carth. 166; Bouton v. Hursler, 1 Barn. K. B. 71; Ex parte McMeechen, 12 Ark. 70; Ex parte City of Little Rock, 26 Ark. 52. This consideration is, of itself, sufficiently imperative to deny the writ. But, because of the great public importance of the matters involved in the mandamus proceeding, and of the influence on future steps therein which may proceed from the views of this court,...