State ex rel. Chilcutt v. Thatch

• Decision Date: 17 May 1949
• Docket Number: 41312
• Citation: 221 S.W.2d 172,359 Mo. 122
• Parties: State of Missouri ex rel. A. W. Chilcutt, Relator, v. Dewey P. Thatch, Special Judge, Judge of the 29th Judicial Circuit, Transferred to and sitting in Division 2, of the Circuit Court for Greene County, Missouri, by mandate of the Supreme Court, Respondent
• Court: Missouri Supreme Court

221 S.W.2d 172

359 Mo. 122

State of Missouri ex rel. A. W. Chilcutt, Relator, v. Dewey P. Thatch, Special Judge, Judge of the 29th Judicial Circuit, Transferred to and sitting in Division 2, of the Circuit Court for Greene County, Missouri, by mandate of the Supreme Court, Respondent

No. 41312

Supreme Court of Missouri

May 17, 1949

Original Proceeding in Prohibition.

Provisional rule made absolute.

SYLLABUS

Original proceeding in prohibition. The defeated candidate for county judge filed a declaratory judgment action in the circuit court seeking to have himself declared entitled to a certificate of election and to have the county clerk enjoined from issuing a certificate of election to his opponent. Any irregularity in the nomination of the successful candidate was waived by failure to take the statutory steps to protest the nomination prior to the election. The circuit court was without jurisdiction to take any steps except to dismiss the petition. The temporary injunction issued by respondent circuit judge is dissolved and the provisional rule in prohibition is made absolute.

Frank B. Williams, J. Howard Hannah and William A. Wear for relator.

(1) A court of equity has no jurisdiction in matters of a political nature. Greene v. Mills, 30 L.R.A. l.c. 94; State ex rel. McCaffery v. Aloe, 152 Mo. 466, 54 S.W. 499; Arnold v. Henry, 155 Mo. 48, 55 S.W. 1089. (2) A court of equity has no jurisdiction by an injunction suit to try title to a political office. The Supreme Court will issue a writ of prohibition to prevent a circuit court from attempting by injunction to determine title to a political office. Arnold v. Henry, 155 Mo. 48, 55 S.W. 1089; State ex rel. McCaffery v. Aloe, 152 Mo. 466, 54 S.W. 499. (3) Prohibition lies to prevent enforcement of restraining order or temporary injunction without preliminary motion for dissolution thereof when respondent judges' lack or excess of jurisdiction appears on face of record. State ex rel. Kansas City Exchange Co. v. Harris, 81 S.W.2d 632. (4) The circuit court, whether sitting at law or in equity, was without power, authority, or jurisdiction to compel the county clerk to refrain from doing an act contrary to and imposed upon him by statute. State ex rel. Frank v. Becker, 9 S.W.2d 153, 320 Mo. 1087; Secs. 2476-2478, R.S. 1939; Secs. 11488, 11614, 11615, 11616, R.S. 1939. (5) The right to contest an election is a purely statutory right. Likewise the remedies expressly provided by statute to enforce rights created alone by statute are preclusive. This precludes equity from proceeding in an election contest. Bradbury v. Wightman, 232 Mo. 392, 134 S.W. 411; State ex rel. Jackson County v. Waltner, 100 S.W.2d 272, 340 Mo. 137; State ex rel. Francis v. Dillon, 87 Mo. 487; Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629; Art. 8, Chap. 76, R.S. 1939; Laws 1945, p. 887. (6) When a statute creates a new right and prescribes the remedy, that remedy is preclusive, and must be followed. Osagera v. Schaff, 240 S.W. 124; Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629. (7) It is the policy of the law to require party nominations to be made by the electors of the party where possible, but the law does not prevent a political party from making nominations by its duly constituted committee when it has had no opportunity to make them by its electors at the regular primary. State ex rel. Hayden v. Thomas, 182 S.W.2d 584. (8) In an election contest the contestant can not question the regularity or validity of the proceedings of conventions or committees in making or filing nominations, nor can the action of the officer whose duty it is to make up the party tickets and prepare the official ballot be reviewed. That can only be done by direct proceedings before the election so that errors, if they exist, may be corrected. Nance v. Kearbey, supra, 158 S.W. l.c. 633; Bowers v. Smith, 111 Mo. 45; Secs. 11540, 11599, R.S. 1939; Armantrout v. Bohon, 162 S.W.2d 867, 349 Mo. 667. (9) The use of the declaratory judgment law can not be made a substitute for existing remedies. Koenig v. Koenig, 191 S.W.2d 269. Menees v. Cowgill, 214 S.W.2d 561.

R. Jasper Smith, Keith V. Williams, and Lincoln, Lincoln, Whitlock & Haseltine for H. D. Pickel, plaintiff, acting on behalf of respondent.

(1) Vacancies in lists of prospective candidates for nomination, occurring before the primary, may not be filled by central committees after the primary and before the general election. Sec. 11534, R.S. 1939; Sec. 11562, Laws 1941, p. 353; Sec. 11538, Laws 1944 (Ex. Sess.), p. 22; Sec. 11539, Laws 1941, p. 365; Sec. 11539, Laws 1941, p. 454; State ex rel. Hayden v. Thomas, 182 S.W.2d 584. (2) In an original proceeding in the Supreme Court in which a writ of prohibition is sought to prohibit a circuit court from exercising jurisdiction in a suit, the Supreme Court is limited to questions affecting the jurisdiction of the circuit court, and will not consider the merits of the action or anticipate what decree the circuit court will render. State ex rel. South Mo. Pine Lbr. Co. v. Dearing, 180 Mo. 53, 79 S.W. 454; State ex rel. United States Fidelity & Guar. Co. v. Harty, 276 Mo. 583, 208 S.W. 835; State ex rel. Granite City and M.B.L.R. Co. v. Homer, 164 Mo.App. 334, 145 S.W. 497. (3) The Supreme Court cannot control the discretion of lower courts acting within the limits of their jurisdiction, or coerce a particular judgment through the issuance of prohibition. Relator has an adequate remedy by way of appeal to correct an erroneous exercise of discretion. State ex rel. Leake v. Harris, 334 Mo. 743, 67 S.W.2d 981; State ex rel. Drainage Dist. No. 8 of Pemiscot County v. Duncan, 334 Mo. 733, 68 S.W.2d 679; State ex rel. Hog Haven Farms v. Pearcy, 328 Mo. 560, 41 S.W.2d 403. (4) The circuit courts of Missouri are courts of general jurisdiction and every presumption is to be indulged in favor of their jurisdiction. The burden of proof rests on the party who asserts that they do not have jurisdiction in any action or proceeding. Buddecke v. Ziegenhein, 122 Mo. 239, 26 S.W. 696; Ross v. Pitcairn, 179 S.W.2d 35, 153 A.L.R. 215; Dred Scott v. Sanford, 60 U.S. 393, 15 L.Ed. 691. (5) The Uniform Declaratory Judgments Act specifically grants jurisdiction to the circuit court to declare rights, status and other legal relations whether or not further relief is or could be claimed. Secs. 1126, 1137, R.S. 1939; Hyde, "Nature of Declaratory Judgments," 26 Wash. U. Law Quarterly, June, 1941; Village of Bay v. Gelvick, 58 Ohio App. 51, 15 N.E.2d 786. Kariher's Petition, 284 Pa. 455, 131 A. 265; Greene v. Holbrook, 128 Misc. 769, 220 N.Y.S. 151; Thompson v. Chilton County, 236 Ala. 142, 181 So. 701. (6) The Uniform Declaratory Judgments Act may be used to determine the propriety or regularity of an election, the legality of its conduct, the statutory eligibility of a candidate or nominee and other compliance with the election laws, particularly in the absence of a showing of fraud necessary to afford the complainant an adequate legal remedy. Borchard, "Declaratory Judgments," 2d Ed., p. 868; Application of Lawrence, 353 Mo. 1026, 195 S.W.2d 818; School Committee of Cambridge v. Superintendent of Schools of Cambridge, 70 N.E.2d 298; Armantrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867; State ex rel. Ekern v. Dammann, 215 Wis. 394, 254 N.W. 759. (7) A court, once having obtained jurisdiction of a cause of action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably necessary to the administration of justice in the case before it. In the exercise of this power, a court may, when necessary in order to protect or preserve the subject matter of the litigation and the jurisdiction and make its judgment effective, grant or issue a temporary injunction in aid of or ancillary to the principal action. 28 Am. Jur. 208, p. 15; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; Shull v. Boyd, 251 Mo. 452, 158 S.W. 313. (8) Under the Uniform Declaratory Judgments Act and the General Code for Civil Procedure the circuit court may grant further and supplemental relief essential to effectuate the declaratory judgment entered by the court, and permit joinder of counts for ancillary relief. Sec. 1133, R.S. 1939; Morris v. Ellis, 221 Wis. 307, 266 N.W. 921; Attorney General v. Trustees of Boston Elevated Ry. Co., 67 N.E.2d 676; Secs. 37, 38 General Code for Civil Procedure, Laws 1943, p. 370; Hyde, "Nature of Declaratory Judgments," 26 Wash. U. Law Quarterly, June, 1941; Caroline Street Permanent Bldg., Assn. No. 1 of Baltimore City v. Sohn, 178 Md. 434, 13 A.2d 616.

OPINION

Conkling, J.

This original action in prohibition presents to us the question of whether the Declaratory Judgment Act, Mo. R.S.A. § 1126 to 1140, inclusive, can be used after a general election by a candidate for county office who did not receive the highest number of votes in that general election, to attack for the first time an alleged irregularity in the nomination of his successful opponent.

On February 25, 1948 one Jess Galloway duly filed his declaration of candidacy for nomination by the Democratic Party at the state primary election held on August 3, 1948 as Associate County Judge from the second district in Greene County. The time for the filing of all declarations for candidacy for that primary expired on April 27, 1948. No other person filed to be nominated for that office by that party. On April 29, 1948 Jess Galloway died. Galloway's name therefore did not appear on the printed primary election ballot. At that primary election of August 3, 1948, H. D. Pickel was duly nominated as the Republican Candidate for that place. After the primary election the party county central committee certified the name of A. W. Chilcutt to the county clerk as the nominee of the...