Gantt v. Brown

• Decision Date: 26 June 1912
• Citation: 149 S.W. 644
• Parties: GANTT v. BROWN.
• Court: Missouri Supreme Court

149 S.W. 644

GANTT v. BROWN.

Supreme Court of Missouri.

June 26, 1912.

1. COURTS (§ 206) — ELECTION CONTESTS— JURISDICTION OF SUPREME COURT.

Under Const. 1875, art. 8, § 9, which provides that all contested election cases, except Governor or Lieutenant Governor must be determined by the courts of law or by one or more of the judges thereof, leaving to the General Assembly the right to designate the particular court which should determine the case, and Rev. St. 1909, § 5951, enacted in pursuance thereto, which provides for the determination of contested elections for Judge of the Supreme Court by the Supreme Court, the court has jurisdiction of such cases in spite of Const. 1875, art. 6, § 2, which provides that the Supreme Court, excepting cases otherwise directed by the Constitution, shall have appellate jurisdiction, etc., and art. 6, § 3, which provides that the Supreme Court shall have a general superintending control over inferior courts and power to issue writs of habeas corpus, mandamus, etc., and hear and determine the same, as the clause "otherwise directed by the Constitution" permits such an exception.

2. CONSTITUTIONAL LAW (§ 20)—CONSTRUCTION—CONSTRUCTION BY LEGISLATURE AND GOVERNOR.

A construction placed by the Legislature and the Governor of a state on a constitutional provision by enactment of a statute relating to its subject-matter, while not binding on the courts, is off great persuasive force.

3. ELECTIONS (§ 282)—ABATEMENT AND REVIVAL—DEATH OF PARTY—ELECTION CONTEST.

Under Rev. St. 1909, § 5925, which provides that, in a pending election contest, the person holding the certificate of election may be appointed to qualify and take the office at 'the time specified by law and exercise the duties thereof until the contest shall be decided, and in case of an adverse decision that the tribunal deciding shall make an order for the delivery to the successful party of all books, records, etc., and which is the only statute providing for a judgment in such case, the right to a contest will not survive, and the death of a contestant will abate the action. [PR In Banc. Election contest by James B. Gantt against John C. Brown. Motion by contestee to abate. Granted.

See, also, 232 Md. 390, 134 S. W. 571; 238 Mo. 560, 142 S. W. 422; 149 S. W. 628.

William C. Marshall and W. M. Williams, for contestant. Spencer & Donnell and Jones, Jones, Hocker & Davis, for contestee e

GRAVES, S.

Contestant and contestee were opposing candidates for the office of Judge of the Supreme Court of Missouri at the general election held in November, 1910. The proceeding was brought in this court under the statute which so authorizes such action. The petition and the answer need not be set out either in full or in substance for the questions now left in the case. Suffice it to say that issues of fraud and illegal voting were made by the pleadings. In the answer and otherwise by motion the jurisdiction of this court is challenged by contestee, and was so challenged from the beginning. Throughout the question has been urged and is now pressed.

By proper order a commissioner was appointed to take testimony and report to this court. Also by proper order a recount of the votes in the city of St. Louis was ordered, and the result of such recount together, with the result of a comparison of the ballots with the pollbooks, has been certified to this court by the election commissioners of the city of St. Louis, and the county clerk of St. Louis county. The evidence was taken and certified to this court by our commissioner, who also reported thereon his findings of fact for our information as he was by our order directed to do. In this state of the case the contestant died, and his death suggested to the court. Contestee then and before the argument of the case filed his motion to abate the case, which motion we took with the case. In the view we have of the law, there are but two questions we need discuss, and these refer in no wise to the merits of the controversy. The questions are: (1) Have we jurisdiction? (2) If so, does the suit abate? Of these in their order.

I. Has this court jurisdiction of the cause? If not, nothing further need be said. We are of opinion that we have jurisdiction. This conclusion we reach from our present constitutional provisions, when interpreted in the light of their birth, growth, and development. By the original Constitution of 1820, the judges of this court were appointed by the Governor. Vide section 13, art. 5, of said Constitution. In this state of the case there was no election and hence no provision for a contest. Later, however, in 1850, the scheme was changed, and by section 1, art. 7, of the amendments of the said Constitution, such officers were made elective. By the same section it was provided: "And in case of a tie, or a contested election, between the candidates, the same shall be determined in the manner to be prescribed by law." The italics are ours. Pursuant to this constitutional provision, we had section 77 of chapter 59, 1 R. S.4855, p. 709, which reads thus: "All contested elections for Judge of the Supreme Court, Superintendent of Common Schools, Secretary of State, Auditor of Public Accounts, State Treasurer, Attorney General, or Register of Lands, shall be decided by vote of the Senate." This remained the scheme and the law until the adoption of the Constitution of 1875. Section 9 of article 8 of that Constitution reads: "The trial and determination of contested elections of all public officers, whether state, judicial, municipal 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 matters incident thereto; but no such law, assigning jurisdiction or regulating its exercises, "shall apply to any contest arising out of any election held before said law shall take effect." Note the difference. The amendment to the Constitution hi 1850 left it to the General Assembly to designate the body or forum before which the contest should be determined, and the General Assembly fixed the State Senate as the forum. In 1875, however, the constitutional provision took away a part of the legislative discretion, and said all contested election cases except Governor and Lieutenant Governor must be determined "by the courts of law, or by one or more of the judges thereof." This Constitution, however, left to the General Assembly the right to designate the particular court of law which should determine the particular case, or rather class of cases. We have here specific constitutional power generally conferred upon all courts of law in this state to determine contested election cases. The term "courts of law" as used in this section includes the Supreme Court. To my mind there is in this section the general grant of power to this and other courts of law to try such cases, and, if in the mind of the General Assembly it was thought best to assign any class of election contest cases to this court, the power to hear and determine would have constitutional sanction. In 1877, two years later, and at a time when the constitutional provision, supra, was yet fresh in the minds of the people, the General Assembly amended the old law as to the forum where such contests should be heard, and made such statute to read: "All contested elections for Judges of the Supreme Court, Superintendent of Public Schools, Secretary of State, State Auditor, State Treasurer, Attorney General or Register of Lands, shall be heard and determined by the Supreme Court or any three judges thereof, in vacation: Provided, that no judge of said court who is a contestant or contestee in such election shall be permitted to hear and determine the same." Vide Laws of 1877, p. 248. The law as thus amended in substance remains with us to-day. Section 5951, R. S. 1909.

When the General Assembly thus assigned this class of cases to this court by legislative act, it amounted to a legislative construction of the meaning of section 9, art. 8, of the Constitution of 1875. When the Governor signed such bill, thus making it a law, it amounted to an executive construction of the same constitutional provision. This legislative and executive construction is (as evinced by their acts) that constitutional power was given this court to try such a case as we now have before us, by the provision of the Constitution, supra. In other words, the Legislature construed the Constitution to mean that this court had the power to determine the case, if that body saw fit to burden the court with such cases. Legislative constructions are not binding upon the courts, but they are at least persuasive, and especially so when they occur so soon after the adoption of the instrument. At such time the discussion of the several constitutional provisions were fresh in mind. The reasons for changing the forum from the Senate to the courts were fresh in mind. The construction made at such time is more valuable as an aid to the courts. We are disposed to take the view that the legislative construction then given is the proper one.

Sections 2 and 3 of article 6 of the same Constitution read:

"Sec, 2. The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, under the restrictions and limitations in this Constitution provided.

"Sec. 3. The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same."

It is argued by contestee that under these sections our jurisdiction is purely appellate, except in "habeas corpus, mandamus, quo warranto,...