State ex rel. Adams v. Crain
Decision Date | 04 April 1947 |
Docket Number | 6630 |
Citation | 201 S.W.2d 426 |
Parties | STATE ex rel. ADAMS et al. v. CRAIN et al |
Court | Missouri Court of Appeals |
'Not to be published in State Reports'.
Joe C Crain, of Ozark, for appellants.
John M Bragg, of Ava, for respondents.
VANDEVENTER
On the 25th day of July, 1945, a petition for a writ of certiorari was filed in the circuit court of Christian County, Missouri, praying that court to require the clerk of the county court to certify to the circuit court all the records he had relative to a Stock Law Election held in Bruner Township in said county on the 11th day of June, 1945. It was alleged that five absentee votes were cast in said election, all against the stock law, and that the counting of said votes produced a tie -- for the stock law 99 and against the stock law 99. It was further alleged that two of said absentee votes were illegal because two of the persons voting had been convicted of felonies and received sentences in the State Penitentiary and had never been restored to the rights of citizenship. That the county clerk, Tom C. Crain, had no authority to appoint four persons, therein named, as canvassers to count said absentee ballots and make a return thereof as provided by law. That it was the intention of petitioners to be present when the vote was canvassed and to challenge the two allegedly illegal votes and that if said votes were held illegal, the election would have carried. The petition prayed the court to quash the record of the county court and to make an order directing that the respondent, Tom C. Crain, county clerk, bring before the court all records of his office pertaining to such election.
The circuit court issued the writ as prayed for in the petition. On the 30th day of July, the respondents filed a motion to dismiss the petition for certiorari on the ground ( that the duty of the county clerk and the county )court relative to appointing the canvassers and canvassing or superintending the canvassing of the vote was a ministerial duty -- not judicial -- and therefore not the subject of certiorari. This motion was overruled and a return was filed, alleging that the actions of the respondents were ministerial, had been in compliance with the law, and attached to the return were all the records pertaining to said Stock Law Election. Those records consisted (Exhibit A) of the oath and certificate of the four appointed canvassers, (Exhibit B) the clerk's minutes relative to the transaction and (Exhibit C) the record of the court as finally written. These Exhibits were as follows:
In addition to the introduction of the records included in the return, the court permitted oral testimony to be taken and rendered judgment finding that the absentee ballots had never been legally counted and cast and directed the county clerk to 'within a reasonable time take to his assistance two Justice of the Peace or two members of the County Court all of Christian County, Missouri and such board as constituted to select four disinterested persons to open, canvass, count and certify the votes cast by absent voters voting at such election as provided by the laws of the State of Missouri, and after such absentee votes have been cast and counted as provided by law, then such County Clerk and the Justices of the Peace or the Judges of the County Court by him called or taken to his assistance then will examine and cast up the votes, voting in such election for or against the proposition submitted and certify the result of such election and this proceeding remanded to the County Clerk of Christian County, Missouri to proceed in accordance with this direction.'
After the overruling of a motion for new trial, the County Clerk and County Court took the proper steps to have the matter reviewed here.
Certiorari is a proper remedy to review the actions of a court or body acting without jurisdiction, or in excess of its jurisdiction, in a judicial proceeding. It does not take the place of mandamus to compel the making of a record but takes the record as it finds it. State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, Ann.Cas.1914A, 823.
As was said by the Supreme Court in State ex rel. Manion v. Dawson, 284 Mo. 490, 225 S.W. 97, 99:
It is the settled law that certiorari will lie only when the action sought to be reviewed is judicial in character. It will not lie if such action is the exercise of a ministerial legislative or executive function of government. State ex rel. Powell et al. v. Shocklee, 237 Mo. 460, 141 S.W. 614. State ex rel. Carman v. Ross et al., 177 Mo.App. 223, 162 S.W. 702; State ex rel. Manion et al. v. Dawson, supra; Hawkins v. City of St. Joseph, Mo.Sup., 281 S.W. 420; State ex rel. Turner v. Penman, 220 Mo.App. 193, 282 S.W. 498. In the matter of the Saline County Subscription, Thompson et al., Petitioners, 45 Mo. 52, 100 Am.Dec. 337 ( ). In the Saline County case the Supreme Court, speaking through Bliss, J., said: ...
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