Barnes v. Gottschalk
| Decision Date | 08 January 1877 |
| Citation | 3 Mo.App. 222 |
| Parties | ROBERT A. BARNES et al. v. LOUIS GOTTSCHALK, Judge, etc., et al. |
| Court | Missouri Court of Appeals |
1. In a mandamus proceeding to compel an officer to certify the result of an election, the appointment of commissioners to count the ballots to enable the court to determine whether the writ should issue, though it might be superfluous or possibly erroneous, is not a transgression of the limits of power committed to the Circuit Court; and, the subject-matter of the inquiry in such proceeding being within the jurisdiction of the Circuit Court, appellate courts will not stop such proceedings by writ of prohibition.
2. Where the allegations in an application for prohibition, if true, show that the proceedings which it is sought to prohibit are absolutely void, they furnish an unanswerable argument against the issuance of the writ.
3. An application for a writ of prohibition must show, unequivocally, every fact requisite to justify its issuance; and courts will not presume a fact which petitioners can only state conjecturally, and which depends upon contingencies.
4. A court cannot direct canvassing officers what result to ascertain or declare, nor can it, by any processes of its own, ascertain for them a result by which they will be bound to make their return.
APPLICATION for a writ of prohibition.
Writ denied.
[The same attorneys appeared and the same authorities were cited in this case as in the case of Barnes et al. v. Gottschalk et al., ante, p. 109.]
This petition for a writ of prohibition is very nearly a reproduction of the one presented in this court by the same plaintiffs, against the same defendants, on November 20th last. The features wherein it differs from its predecessor are as follows: Allegations are here added, to the effect that (1) the petitioners have made application to the Circuit Court to be admitted as parties to the mandamus proceeding, but this was denied them; (2) the commissioners appointed by the Circuit Court to examine the ballots and returns of the scheme and charter election have made their report, showing certain results, but not declaring whether, in their opinion, the measures were carried or not; (3) the official term of defendant, Chauncey F. Shultz, as presiding justice of the County Court, having expired, Charles Speck was at the last general election elected to the same office, and has been substituted, in place of Schultz, as a defendant in the mandamus case; (4) “the defendant Louis Gottschalk, judge as aforesaid, from the bench, and officially in said cause, has declared and announced that, if the respondents Overstolz and Speck will accept as true the report of said commissioners so by him appointed, they, said Overstolz and Speck, are not, and will not be, required to examine and count the ballots, but that thereupon he, said Gottschalk, as judge as aforesaid, will order and direct the peremptory mandamus to issue against them, requiring them, the said Overstolz and Speck, to file duplicate certificates of such adoption and ratification of said Scheme and Charter,” etc.
The allegation that plaintiffs have unsuccessfully sought to be admitted as parties to the proceedings which we are now asked to arrest by prohibition completely satisfies the technical objection considered fatal to the former application. It shows that a necessary step was taken towards raising in the Circuit Court, before presenting them here, the jurisdictional questions made by the plaintiffs. That step failing, the way was fairly opened to a supervisory tribunal, without further effort made in the inferior court. But as to all other matters in the present petition, except those which we will here specially notice, they are but repetitions from the former application, and were sufficiently disposed of in the majority opinion delivered on that occasion.
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Stein v. Morrison
...which it is sought to prohibit are absolutely void. (Woodward et al. v. City of San Francisco, 95 Cal. 272, 30 P. 535; Barnes v. Gottschalk, 3 Mo.App. 222.) The power declare a statute unconstitutional is one of the highest intrusted to a judicial tribunal, and is only to be exercised with ......
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...which it is sought to prohibit are absolutely void. (Woodward et al. v. City of San Francisco, 95 Cal. 272, 30 P. 535; Barnes v. Gottschalk, 3 Mo.App. 222.) The power declare a statute unconstitutional is one of the highest intrusted to a judicial tribunal, and is only to be exercised with ......
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...ineffectual, or would be void and could not affect the rights of the party applying therefor, the writ should not be granted. Barnes v. Gottschalk, 3 Mo. App. 222; Fleming v. Guthrie, 32 W. Va. 1, 9 S. E. 23, 3 L. R. A. 53, 25 Am. St Rep. 792; 22 R, C. L. Assuming that the questions indicat......