State ex rel. and to Use of Conran v. Duncan

• Citation: 63 S.W.2d 135,333 Mo. 673
• Decision Date: 23 August 1933
• Docket Number: 32422
• Parties: State of Missouri at the Relation and to the Use of J. V. Conran, Relator, v. John E. Duncan, Judge of the Circuit Court of New Madrid County, and O. A. Cook
• Court: United States State Supreme Court of Missouri

63 S.W.2d 135

333 Mo. 673

State of Missouri at the Relation and to the Use of J. V. Conran, Relator, v. John E. Duncan, Judge of the Circuit Court of New Madrid County, and O. A. Cook

No. 32422

Supreme Court of Missouri

August 23, 1933

Preliminary rule discharged the primary election contest should be dismissed.

Ward & Reeves for relator.

(1) Prohibition is the proper remedy here because it lies to prevent the exercise of judicial power where there is a lack of jurisdiction, or where the court in a case over which it has jurisdiction, is proceeding in excess of jurisdiction generally speaking it is available to keep a court within the limits of its power in any particular matter, as well as to prevent the exercise of jurisdiction not given to it by law. State ex rel. v. Fort, 210 Mo. 525; State ex rel. v. Foster, 187 Mo. 590; State ex rel. v Kimmell, 183 S.W. 651; State ex rel. v. Elkins, 130 Mo. 107; Secs. 1609-1617, R. S. 1929. Where a judge is about to do an act not justified by the record or by the law and which he has no rightful judicial power to do, the writ of prohibition may be invoked. State ex rel. v. Brickner, 203 S.W. 242. (2) The May Term of the New Madrid County Circuit Court met the third Monday in May, 1932; the undenied allegations in the petition, together with the certificate of the circuit clerk shows that the May Term closed on the 2nd day of July, 1932, at which time the court of record did not adjourn to any certain day, but to a blank date, and under the statute the court would stand adjourned from day to day until the evening of the third day thereafter, and if no court is held then the court perforce of law lapsed. Secs. 1849, 1850, R. S. 1929. (3) The court having lapsed on the evening of the third day after July 2, 1932, the court could not on August 16th thereafter assume the bench and direct the clerk to make a nunc pro tunc entry by filling in the blank date the words, "August 16th next at nine o'clock A. M.;" and such action of the court is wholly void and could not make a dead, lapsed term alive. Stovall v. Emerson, 20 Mo.App. 324. The whole scope of the legislation on the subject of courts, as well as the common law, is to the effect that only at stated times, and at the places specified and on a definite date can a court lawfully meet. State ex rel. v. Ross, 118 Mo. 23; Holman v. Hogg, 83 Mo.App. 370. The theory of the law is that the court will make an order of record to adjourn to a day certain. The sheriff adjourns the court to a certain date, and if none is fixed, then under the statute the court stands open until the evening of the third day, and if at that time the court has not assumed the bench and if no proclamation or order is made for further adjournment, then the term lapses. Cook v. Penrod, 111 Mo.App. 128; State ex rel. v. Coleman, 182 Mo.App. 358; Michie v. Leader, 235 Mo. 30. Under the conceded facts in this case and under the undenied statements in the petition, and under the unquestioned certificates of the circuit court clerk, the order of the court and the record made on July 2, 1932, was: "Now at 12 o'clock noon this day court adjourns to ." The judge was not thereafter on the bench, made no order, the sheriff made no proclamation and no adjournment of any sort until the court voluntarily assumed the bench on the 16th day of August, 1932, and ordered the clerk to fill in the blank date so that it now reads: "Now at 12 o'clock noon this day court adjourns to August 16th next at 9 o'clock A. M." (4) The law provides that the merits of the petition to be inquired into is fraud, legality of the ballots and qualification of the voters. Since the statute still permits the judge to pass upon the merits of the cause it is permitting the judge in vacation to determine the judicial questions, which can only be done under the Constitution by a court. Sec. 1, Art. 6, Const. of Mo.; Laws 1921, pp. 329-330; State ex rel. v. McElhinney, 315 Mo. 751, 286 S.W. 951; Laws 1929, pp. 194-196; State ex rel. v. Lollis, 33 S.W.2d 98; State ex rel. v. Sprague, 33 S.W.2d 102. (5) The statute is further unconstitutional in that it seeks to take, and permits the taking of, plaintiff's office, his rights and property without due process of law. It is speculative, unreasonable, arbitrary and vicious in that it provides for a hearing upon the merits of the petition without notice to the plaintiff herein, and in fact in his absence; it provides that no appeal shall be allowed and the judgment rendered shall be final; and it provides for no method of counter-contest and no means by which this plaintiff, as such contestee, could defend himself and show that he was in fact nominated by a clear majority. The right to practice law or practice medicine, or receive the benefits of his election, and the emoluments of his office are rights which one cannot be deprived of without due process of law. Sec. 30, Art. 2, Const. of Mo.; St. Louis v. Railway Co., 278 Mo. 205; Horton v. Clark, 316 Mo. 770; State ex rel. v. North, 304 Mo. 607; State ex rel. v. Robinson, 253 Mo. 271. Notice to parties whose rights are to be affected by judicial proceeding is an essential element of due process. State ex rel. v. North, 304 Mo. 607; Cornett v. County, 240 S.W. 107; State ex rel. v. Holcamp, 245 Mo. 655.

McKay & Peal for respondents.

(1) The court having before it as a part of the record of the case the certified copy of the records of the Circuit Court of New Madrid County, showing its adjournment of court at its May Term, 1932, from time to time, including its orders made on the dates in question, to-wit: July 2, 1932, and August 16, 1932, is precluded by this record upon the first point or contention made by relator in his petition for prohibition in that the record itself of the court cannot be contradicted or overthrown by parol testimony, or such as the affidavits of the clerk, sheriff and prosecuting attorney attached as exhibits to relator's petition for prohibition. (2) It is an elementary principle of law, that it is never permissible to introduce parol or other extrinsic evidence to vary or contradict the judicial record. Atwood v. Atwood, 55 Mo.App. 370; West v. Moser, 49 Mo.App. 201; Sweet v. Moutin, 65 Mo. 65; Sutton v. Cole, 155 Mo. 206; Long v. Long, 141 Mo. 325; Cook v. Penrod, 111 Mo.App. 128. It is well settled law in this State that the records of the court can only be attacked by recital in other portions of the same record. Jester v. Spurgeon, 27 Mo.App. 477; Cloud v. Pierce City, 86 Mo. 357; Hyde v. Curling, 10 Mo. 359; Gibson v. Chouteau's Heirs, 45 Mo. 171. (3) The act of the Legislature of 1931, pages 205-208, in relation to contests of primary election nomination is not unconstitutional. State v. Woodson, 161 Mo. 444; School District No. 1 v. Andrae, 216 Mo. 617; State ex rel. Phillips v. Barton, 300 Mo. 76. The judicial power referred to by this statute has reference to the actual and real trial and determination of a matter of law and equity and not to the mere preliminary steps to be taken for the institution of a suit. Johnson v. Railway, 259 Mo. 534; State ex rel. v. Barton, 300 Mo. 76; Johnson v. Wabash Ry. Co., 259 Mo. 534; State ex rel. v. Laughlin, 75 Mo. 147; Pitman v. Grabelle, 267 Mo. 78; State v. Railway Co., 242 Mo. 339. (4) The matter of passing upon the merits of the petition requires merely administerial act upon the part of the judge similar to that in bills for injunction where the judge in vacation passes upon the merits of the bill and is authorized to issue a temporary writ if the bill states a good cause of action and such is true in many other instances in our practice and procedure. St. Joseph v. Geiwitz, 148 Mo. 210; Mound City Land & Stock Co. v. Miller, 170 Mo. 240. The justice, wisdom, policy, or expediency of a law are questions for the Legislature, and are not open to inquiry to the court. Lefman v. Schuler, 317 Mo. 671; Arnold v. Hanna, 315 Mo. 823; State ex rel. v. Kinsey, 314 Mo. 80; State ex rel. v. Schmoll, 313 Mo. 693; State ex rel. v. Kansas City, 310 Mo. 542. The fact that a law is unjust in its operation does not authorize the court to declare it invalid unless some express provision of the Constitution has been violated. Court v. Griswold, 58 Mo. 175; State v. Swagerty, 203 Mo. 517; Gist v. Const. Co., 224 Mo. 369; Davis v. County, 318 Mo. 248.

OPINION

Ellison, J.

Prohibition. Messrs. O. A. Cook and the relator, J. V. Conran, were candidates for the nomination for Prosecuting Attorney of New Madrid County on the Democratic ticket at the August primary election, 1932. According to the returns of the election and the certificate of the canvassing board, Conran was nominated. Cook thereupon instituted a proceeding in the New Madrid County Circuit Court to contest the nomination under Laws 1931, page 205. He gave written notice of his intention so to do and filed his verified petition in the office of the circuit clerk on August 11. On August 16 the respondent, Honorable John E. Duncan, judge of the circuit, caused an entry to be made of record that the contestant then and there appeared in open court in person and by counsel, and presented his petition; that the contestee (relator) failed to appear; that the court "having examined said petition and having determined the same on the merits thereof finds that said petition states a good cause of action;" and the court accordingly ordered a recount of the ballots as prayed in the petition, and that the cause be set and heard on August 26 and summons be issued returnable that day.

On August 20, four days before the date set for the circuit court hearing, the relator, Conran, made application to this court for a writ of prohibition, and on August 22 our preliminary rule was issued. Respondent made return to...