Preisler v. Doherty, 43596

• Citation: 265 S.W.2d 404,364 Mo. 596
• Decision Date: 08 March 1954
• Docket Number: No. 43596,43596
• Parties: PREISLER v. DOHERTY et al.
• Court: United States State Supreme Court of Missouri

Page 404

265 S.W.2d 404

364 Mo. 596

PREISLER v. DOHERTY et al.

No. 43596.

Supreme Court of Missouri, En Banc.

March 8, 1954.

Paul W. Preisler, St. Louis, appellant (Pro se).

Thompson, Mitchell, Thompson & Douglas, James M. Douglas, St. Louis, for respondents, Members of the Board of Election Commissioners of the City of St. Louis.

Samuel H. Liberman, City Counselor, Charles J. Dolan, Associate City Counselor, St. Louis, for respondent, The City of St. Louis. CONKLING, Chief Justice.

Paul W. Preisler, plaintiff-appellant, and hereinafter called plaintiff, filed this declaratory judgment action in the circuit court of the city of St. Louis on July 28, 1952. The original defendants were Paul C. Calcaterra, Leo J. Hennessey, Sigmund M. Bass and Clifford G. Haley, as the then members of the Board of Election Commissioners of the City of St. Louis, which is hereinafter called 'the Board,' Walter H. Toberman, Secretary of State, J. E. Taylor, the then Attorney General of Missouri, and the City of St. Louis, a municipal corporation. The first four above named defendants were thereafter, on March 12, 1953, duly succeeded in their respective offices as members of said Board of Election Commissioners by Michael J. Doherty, Daniel J. Nack, Isaac C. Orr and William E. Buder. Defendant, J. E. Taylor, as Attorney General was succeeded on January 12, 1953, by John M. Dalton, as Attorney General of Missouri. On motion of plaintiff this court ordered Michael J. Doherty, Daniel J. Nack, Isaac C. Orr, William E. Buder, and John M. Dalton substituted as defendants in the place of their above named predecessors in office.

Plaintiff, a resident, taxpayer, and registered voter of the City of St. Louis, filed his action in two counts. Counts I and II contain many identical allegations, but pray different relief. Plaintiff alleged that subsequent to the 1950 census, and pursuant to Section 7 of Article III of the V.A.M.S. 1945 Constitution of Missouri, the senatorial districts of the State were reapportioned, and that seven of such senatorial districts were apportioned to the City of St. Louis; that purporting to act under Section 8 of Article III, the then Board of Election Commissioners of the city of St. Louis divided that city into seven senatorial districts and certified such new districts to the Secretary of State on February 2, 1952; that the division of the city into said seven districts violated Section 8 of Article III in that the seven new districts are not contiguous and as compact and nearly equal in population as may be, but are irregular, grotesque, without reason, arbitrary and capricious. Plaintiff further alleges that on April 22, 1952, he made a timely 'offer for filing, at the Board of Election Commissioners * * * of his declaration of candidacy for 'State Senator' from the city of St. Louis (at large) on the Non-partisan ticket,' and complied with all necessary prerequisites of such filing of candidacy.

In Count I plaintiff asserted his right to run for such State Senator (at large) from the city of St. Louis upon the Non-partisan ticket, and prayed the court to decree and declare that plaintiff 'shall have the right and privilege of becoming a candidate for nomination and election for the office of State Senator from the city of St. Louis at large, according to the provisions of RSMo 1949, Section 22.030,' because the purported senatorial districts did not comply with Section 8 of Article III and that therefore the act of the Board of Election Commissioners designating the senatorial districts was therefore void.

In Count II of his petition plaintiff prays the court to decree and declare that as a resident, citizen, taxpayer and qualified voter he is entitled to vote for State Senators from the city of St. Louis at large under the provisions of Section 22.030 because the seven senatorial districts as designated are void for reasons above noted under Section 8 of Article III.

Each of the defendants filed motions to dismiss both counts of plaintiff's petition. All motions of all defendants to dismiss both counts were sustained by the circuit court. Plaintiff appealed from the judgments thereupon entered.

The cause has been briefed and argued in this court upon behalf of plaintiff and the defendant Board of Election Commissioners. The brief of the defendant city makes but one point, which we later separately notice.

We first consider the trial court's dismissal of Count I, wherein plaintiff on July 28, 1952, prayed the trial court to declare, 'that plaintiff shall have the right and privilege of becoming a candidate for nomination and election for the office of state senator from the city of St. Louis, at large,' because, plaintiff asserts, the theretofore made division of the city into the seven new senatorial districts was void under Section 8 of Article III.

At the outset, however, we are met with the Board's assertion and contention that the general election for the state senate was held November 4, 1952, and that under Section 18 of Article III of the Constitution of 1945 the state senate is the 'sole judge of the qualifications, election and returns of its own members', and since that body has seated those persons elected at the November 4, 1952, election, the issue presented in Count I of plaintiff's petition is now moot.

Plaintiff's reply brief concedes that he 'does not question the title to office of the persons elected to the senate in November, 1952, and seated in January, 1953.' Plaintiff concedes and asserts that his 'declaration of candidacy was for the primary of August 1952, and the election of 1952,' that he made a timely offer of filing on April 22, 1952, which offer 'can hardly be considered to be applying to any but the immediately following primary and election of 1952.'

Under Section 18 of Article III of the Constitution the state senate shall be and is 'sole judge of the qualifications, election and returns of its own members'. We judicially know as a fact that at the election held on November 4, 1952, state officers, including members of the state senate from the seven new districts in the city of St. Louis, were elected and were seated by that body.

For reasons clearly appearing above we rule that the issue involved in Count I is moot, and that plaintiff cannot now challenge the above redistricting action of the Board of Election Commissioners on the ground that he desired to be a candidate for state senator at the 1952 election.

But plaintiff at length argues that we should rule the issue presented by Count I. He points to the fact that his petition alleges that the refusal of the Board and the Secretary of State to accept his declaration of candidacy 'are of a continuing nature and deprive plaintiff of his rights as a citizen, taxpayer and qualified voter now and hereafter to become a candidate for the office of State Senator.' He points also to the language of the prayer of Count I where the court is asked to declare that plaintiff shall have 'the right and privilege of becoming a candidate.'

Plaintiff's contentions are without force or merit. Under the above circumstances the circuit court may not, in any event, make any declaration or decree respecting plaintiff's rights as a candidate for the state senate at the 1952 election. Nor could that court as the pleadings now stand make any lawful declaration or decree as to any mythical future candidacy or election. Plaintiff urges that the court should determine his rights as a candidate for state senator in the future. Such determination may not be made under Count I of the petition now before us.

Count I of plaintiff's petition alleges that a justiciable controversy exists between plaintiff and defendants in that 'plaintiff is claiming a legal right to become a candidate for the nomination for the office of state senator (at the 1952 election) from the city of St. Louis at large.'

We rule that the issue presented by Count I plaintiff's petition is moot. A question is moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect upon any then existing controversy. Personal Finance Co. of Missouri v. Day, 349 Mo. 1139, 164 S.W.2d 273, 274, and cases there cited, Moore v. Smith, 160 Kan. 167, 160 P.2d 675, 678, State v. Zisch, 243 Wis. 175, 9 N.W.2d 625, 626, Appeal of Frank Foundries Corp., 323 Ill.App. 594, 56 N.E.2d 649. See also, State ex rel. Chilcutt v....