Kalbfell v. Wood

• Decision Date: 26 February 1906
• Citation: 193 Mo. 675,92 S.W. 230
• Parties: KALBFELL et al. v. WOOD et al.
• Court: Missouri Supreme Court

92 S.W. 230

193 Mo. 675

KALBFELL et al. v. WOOD et al.

Supreme Court of Missouri.

February 26, 1906.

1. PROHIBITION—OFFICE OF WRIT.

The writ of prohibition is granted only to prevent usurpation of judicial power.

2. SAME—OFFICERS SUBJECT TO WRIT—NATURE OF DUTIES—ELECTION COMMISSIONERS.

Under Laws 1901, p. 156, § 15, providing that the judges, clerks, and challengers who serve at primary elections shall be selected by the election commissioners from lists submitted by the managing committee of the party holding the primary, the duty of selecting the judges, clerks, and challengers is an administrative, and not a judicial, one, and hence the election commissioners cannot be prevented by a writ of prohibition from performing that duty in a certain manner.

3. COURTS — REALITY OF CONTROVERSY—PROHIBITION — ELECTION COMMISSIONERS — OFFICERS OF PRIMARIES—SELECTION.

Where a writ of prohibition to prevent the board of election commissioners from selecting judges, clerks, and challengers for a primary election from a certain list was sought so late that the primary had been held before the provisional order in prohibition was returnable, and so that no new primary could be held in time for the election, only a moot question was involved, and the proceeding could not be maintained.

In Banc. Petition by Theodore D. Kalbfell and others against John M. Wood and others for writ of prohibition to prevent respondents from taking certain action as election commissioners. Proceeding dismissed.

Jno. A. Gilliam, Thos. T. Fauntleroy, and Nathan Frank, for plaintiffs. Chas. W. Bates and Wm. F. Woerner, for defendants.

PER CURIAM.

On the 9th day of September, 1902, the plaintiffs, asserting themselves to be members of the Republican city central committee of the city of St. Louis, presented their petition to one of the judges of this court in vacation for a writ of prohibition, to be directed to the members of the board of election commissioners of the city of St. Louis. The petition in substance stated that the plaintiffs were, on the 30th of August, 1902, and for two years prior thereto, together with other persons named in the petition, duly and legally constituted Republican city central committee of the city of St. Louis, which said committee is composed of 28 members, one member from each ward from said city, and that the city of St. Louis is a city and municipal corporation of over 300,000 inhabitants, and was such municipal corporation at all the time therein mentioned, and primary elections of political parties therein are governed by the act of the General Assembly of March 13, 1901, known as the "Primary Election Law." Laws 1901, p. 149. The petition then alleged that there was in the city of St. Louis a political party known as the "Republican Party," and that said political party had more than 40 per cent. of the qualified voters of said state, who are qualified to vote at elections held therein. It was then alleged that under the rules and customs of the Republican Party the Republican city central committee had existed for many years as the governing body of said political party in said city, to call and conduct primary elections in said city, and no other organization had any authority to call or conduct such primary elections in said city for such party, and that Louis P. Aloe, James McCaffery, and John M. Wood constituted the board of election commissioners for said city, duly appointed and qualified under the provisions of said act of March 13, 1901. It is then alleged that on the 13th of August, 1902, the said Republican city central committee, at a meeting of its members, legally called and held, ordered a primary election of the Republican Party of St. Louis under the provisions of such primary law to nominate, by direct vote, candidates for the various offices to be voted for at the general election to be held on November 4, 1902, and filed said call with the said board of election commissioners on August 16, 1902. It was then alleged that the said Republican city central committee, composed of the members named in said petition, filed with said board on the 30th of August, 1902, a list of the names of legal and qualified voters members of the Republican Party, from which the said election commissioners should select judges, clerks, and challengers of elections for said primary election, as authorized by the said act of the General Assembly approved March 13, 1901; that after said call had been made for said primary election, and the list of names from which to select judges, clerks, and challengers had been filed with the board of election commissioners, William H. Rudolph and 13 other members of said Republican city central committee, together with William H. Blake, William H. Hahn, and 6 others named therein, conspired to thwart the will and desire of said Republican Party in said city, and declared themselves members of the said city central committee, and on September 2, 1902, filed with said board of election commissioners another list of names, from which they demanded that the said board of election commissioners should select judges, clerks, and challengers of election for said primary election to be held on the 16th of September, 1902; that said board of election commissioners claimed that it had jurisdiction to determine as to which of said bodies, that of which plaintiffs composed the majority, or that of William H. Rudolph and the other associates with him composed a majority, of the Republican city central committee, and from which of said lists it would select judges, clerks, and challengers, and that, unless prevented by a writ of prohibition, the said board of election commissioners would appoint from the list of names of judges, clerks, and challengers submitted by William H. Rudolph and his associates on or about September 2, 1902, judges, clerks, and challengers to serve and act at the primary election to be held on said 16th day of September, 1902; that plaintiffs were remediless in the premises by or through ordinary processes or proceedings by law to prevent the said board of election commissioners from exceeding their jurisdiction in claiming the power and authority to pass upon the lists filed for judges, clerks, and challengers, and that in assuming to adjudicate between the plaintiffs and said Rudolph and his associates, as to which of said bodies constituted the Republican city central committee, the said election commissioners were encroaching upon the jurisdiction of the circuit court of the city of St. Louis and the Supreme Court of Missouri, and therefore the plaintiffs prayed a writ of prohibition directed against said election commissioners to prohibit them from assuming jurisdiction to determine whether plaintiffs or said Rudolph and his associates were members of the Republican city central committee, and to prohibit them from appointing any judges, clerks, or challengers for the primary election to be held by the Republican Party in the city of St. Louis from the lists filed by said Rudolph and his associates, and to prevent and prohibit them from appointing said judges and clerks from any lists save that filed by the plaintiffs on August 30, 1902.

Upon the presentation of this petition to Hon. Waltour M. Robinson, one of the judges of this court, on the 9th day of September, 1902, a rule was granted by the said judge, directed to the said election commissioners to appear before him at chambers in Jefferson City, Mo., on September 12, 1902, to show cause why the provisional writ of prohibition should not issue against them returnable to the Supreme Court of the state of Missouri in banc on the 14th day of October, 1902, and show cause why a final judgment in prohibition should not be entered prohibiting said election commissioners from in any manner recognizing said Rudolph and his associates as members of the Republican city central committee of St. Louis, and prohibiting them from appointing said judges, clerks, and challengers from any lists of names save that filed by the plaintiffs with them on August 30, 1902. The provisional order was served on the election commissioners on September 9, 1902. To that order the election commissioners on the 12th of September, 1902, made a return in which, after alleging the filing of the two lists by the plaintiff and his associates on the one hand, and Rudolph and his associates on the other hand, the said board of election commissioners stated that up to that time there had been no occasion for the said board to select the names of judges, clerks, and challengers for said primary election, and that said board had not yet undertaken to determine what names they would select for judges, clerks, and challengers for said primary election; that said board had not sufficient knowledge or information up to that time upon which to form a judgment as to whether the plaintiffs and their associates or the said Rudolph and his associates constituted the governing and controlling committee of the Republican Party of the city of St. Louis, and that said matters were questions of facts to be determined by said board when it should undertake to select judges, clerks, and challengers in said primary election; that in due time said election commissioners would take up said matter and make due inquiry, and would honestly and faithfully decide said questions upon the evidence before them, and respectfully suggested that neither the Supreme Court or any judge thereof had jurisdiction to issue the writ of prohibition prayed for by the plaintiffs and thereupon on the said 12th day of September, 1902, Hon. Waltour M. Robinson, one of the judges of the Supreme Court of Missouri, in vacation made an order over his hand and official signature, wherein he commanded the said election commissioners of the city of St. Louis to appear before the Supreme Court of Missouri in banc on Tuesday, the 14th day of October, 1902, to show cause why a final...