Mansur v. Morris

• Court: Missouri Supreme Court
• Writing for the Court: ELLISON
• Citation: Mansur v. Morris, 196 S.W.2d 287, 355 Mo. 424 (Mo. 1946)
• Decision Date: 09 September 1946
• Docket Number: 40076
• Parties: George F. Mansur, Relator, v. Richard M. Morris, County Clerk of Boone County, Missouri, and W. M. Dinwiddie, Judge of the Circuit Court of Boone County, Missouri

196 S.W.2d 287

355 Mo. 424

George F. Mansur, Relator, v. Richard M. Morris, County Clerk of Boone County, Missouri, and W. M. Dinwiddie, Judge of the Circuit Court of Boone County, Missouri

No. 40076

Supreme Court of Missouri

September 9, 1946

Original Proceeding in Prohibition.

Writ quashed.

Sears Jayne for relator.

Edwin C. Orr and Sapp & Miller for respondents.

Ellison J. Hyde, Gantt, Leedy and Tipton, JJ. concur; Douglas, J., not sitting; Clark C.J. , dissents.

OPINION

ELLISON

This is an original proceeding in prohibition filed in this court by the relator, George F. Mansur, on July 22, 1946, and directed to the respondents Hon. W. M. Dinwiddie, judge of the circuit court of Boone county, and Hon. Richard M. Morris, county clerk of that county. Its objective is to prevent the removal of relator's name as a candidate for the Democratic nomination for magistrate, from the official ballot to be used in the primary election on August 6, 1946. The county clerk put relator's name on the sample ballot along with that of another candidate, Temple H. Morgett. Morgett brought prohibition against the clerk in the Boone county circuit court to keep Mansur's name off the official ballot. That court issued a writ absolute so requiring. Hence the clerk is between two fires, and the respondent circuit judge is joined as a party respondent hereto.

It has been the practice of this court in such cases to make the proceedings rather informal and summary; and to waive the requirements of our rules 1.23-1.25 insofar as adherence thereto would defeat the purposes of the proceeding. They are in a sense sui generis. When suits of this character are brought only a few days before the election, as they usually are, we can only adopt that course or else refuse to entertain them at all, since time is vital because the case would become moot if the election were held before it was decided. State ex rel. Conran v. Duncan, 333 Mo. 673, 679(2), 63 S.W.2d 135, 137(2).

For that reason we held two informal hearings in this case, one on the question whether prohibition, mandamus or certiorari was the proper remedy; and the other on the merits after the present course of proceeding was adopted. The files of the Boone county circuit court were brought up by agreement, and a decision was rendered on July 26, quashing our provisional rule and permitting the decision of the Boone county circuit court to stand, our opinion to follow later. That, of course, resulted in the striking of relator's name from the ballot.

Prohibition is only a discretionary writ, not an appeal; but sometimes it is an exigent remedy. We will consider legal questions raised below on the merits to determine whether the tribunal exceeded its jurisdiction. State ex rel. Stone v. Thomas, 349 Mo. 22, 159 S.W.2d 600. But we cannot weigh the evidence below on its merits. Yet we must know what the pleadings and evidence (in outline) were in order to understand what the issues are. Our sources of information in this case are relator's petition and reply here; his motion to dismiss, motion to strike and third party answer below; the county clerk's return here and below; the circuit judge's return here; and the rule absolute issued below.

The office of magistrate is a new county office created by Sec's 1 and 18, Art. V, and Sec. 4, Schedule, Const. 1945, which abolishes the office of justice of the peace. Sec. 18 provides there shall be one magistrate in counties of more than 30,000 and not more than 70,000 inhabitants. Boone county is in that bracket, its population being 34,991 under the last decennial census. The basic question in the case is whether the relator is qualified to hold the office. Sec. 25, Art. V, Const. 1945 provides (italics ours): "Judges of . . . magistrate courts shall be qualified voters of this state, and residents of the county. . . . Magistrates (shall be) at least twenty two years of age. Every . . . magistrate shall be licensed to practice law in this state . . . except that persons who are now justices of the peace, or who have heretofore been justices of the peace in this state for at least four years, shall be eligible to the office of magistrate without being so licensed."

The word "now" as used in this last sentence ordinarily would mean when the Constitution took effect [28 Words & Phrases (Perm. Ed.), p. 898], which was on March 30, 1945. But the enforcing statute, Senate Bill No. 207, sec. 3; Mo., R.S.A. sec. 2811.103 fixes the date as February 27, 1945, the day of the election at which the new Constitution was adopted by the electors of the State. At any rate, these undisputed facts were before the trial court. Relator was and is qualified for the office of magistrate as to age, residence and suffrage. But he is not a lawyer and had not theretofore been a justice of the peace for four years. His eligibility depended on whether he was a justice of the peace "now", as the Constitution put it, that is on February 27 or March 30, 1945, whichever it be. He was at least a de facto justice of the peace by reason of the following further evidence, from which the circuit court found he was not eligible for the office of magistrate.

Under Sec. 2522 [references to statutes are to R.S. 1939 and Mo. R.S.A.] Columbia township in Boone county is entitled to three justices of the peace. At the general election in 1942 that number of justices were elected for a term of four years each, expiring in 1946, under Sec's 2522 and 2525, they being: the aforesaid Temple H. Morgett, relator in the prohibition proceeding below, who had theretofore been a justice of the peace for four years; David V. Bear; and M. F. Thurston, Jr. Thereafter, Morgett and Bear were inducted into the Armed Forces of the United States without resigning their said offices, and Thurston resigned on January 2, 1943. George S. Starrett was appointed by the county court as his successor until the next general election, in 1944, under Sec. 2527. At the primary and general elections in August and November, respectively, 1944, Starrett ran to succeed himself, and Mansur, the relator here, also ran. Both were nominated and elected as non-competing candidates for justices of the peace, apparently on the assumption that there were two vacancies to be filled. Both were commissioned and have served since.

This was long after the decision of State ex inf. McKittrick v. Wilson, 350 Mo. 486, 166 S.W.2d 499, 143 A.L.R. 1465, rendered on December 7, 1942, and hereinafter construed. It is respondents' contention that under that decision Morgett and Bear had not abandoned their offices for the term ending in 1946, by entering and serving in the Armed Forces of the United States, and that their absence on such service did not render their offices vacant. In consequence, they assert there was only one vacancy in the three offices of justice of the peace to be filled at the 1944 election, that being the office formerly held by Thurston, who resigned, and which Starrett had been appointed to fill until that election. And since Starrett received the greater number of votes in both the primary and general elections that year they maintain he alone was validly elected; and that relator's election was void, since both the other offices of justice of the peace were already filled.

It appears that the question of the qualifications of the instant relator (Mansur) for the office of magistrate had been mooted early this year. For the petition of Morgett in the circuit court (the allegations of which that court found to be true), charged that in the Columbia Daily Tribune of April 30, 1946, Mansur announced he would withdraw if the Attorney General of Missouri ruled he was ineligible for the office of magistrate. Morgett's petition further alleged that the question was submitted to the Attorney General in May, 1946, upon a statement of facts to which Mansur agreed; and that on or about July 6, 1946, the Attorney General's Department gave a written opinion to the prosecuting attorney of Boone county that he was ineligible. A copy of that opinion has been filed in this cause. It shows the questions passed upon were whether Mansur was a de jure or a de facto justice of the peace; and if the latter, whether he was eligible as a candidate for magistrate under the constitutional provision and statute earlier set out herein.

The petition of relator Morgett below further alleged that after the Attorney General had ruled Mansur was ineligible, he (Morgett) notified the county clerk that Mansur's name had been erroneously printed on the sample ballots for the primary election as a candidate for magistrate, and requested the clerk to correct the error by removing Mansur's name from the official ballots for the primary election under Sec. 11558, which requires the county clerk to "correct any errors or omissions" in the sample ballots. On July 17 the county clerk refused, and Morgett thereupon brought prohibition in the Boone county circuit court on July 18, resulting in the issuance of the rule absolute, aforesaid.

Relator's third party answer and return in the circuit court denied the above allegations in Morgett's petition and affirmatively alleged that at the time of his election in 1944 only one justice of the peace was serving in Columbia township with a population of 21,457, or more; that there was great need of another justice of the peace; that he believes additional justices would have been appointed by the county court under Sec. 2524 if he had not served as such; that he was elected before the decision of the Wilson case, supra [in that, he is mistaken]; that justices Morgett and Bear actually abandoned their respective offices, and left no one qualified to act for them, and no court rooms or dockets; that both...