State ex rel. Dawson v. Caster
| Decision Date | 05 January 1929 |
| Docket Number | No. 29456.,29456. |
| Citation | 12 S.W.2d 462 |
| Parties | THE STATE EX REL. JOHN M. DAWSON v. W.W. CASTER, Clerk of County Court of Gentry County, and CHARLES U. BECKER, Secretary of State. |
| Court | Missouri Supreme Court |
This is an original proceeding by mandamus to compel the making by respondent Caster of certain certificates in respect to the result in Gentry County of the general election held November 6, 1928, and to compel respondent Becker to receive such certificates and to cast up the vote for the office here involved in accordance therewith.
In the original petition our writ was asked for only against respondent Caster. Upon motion of the relator, an amended petition was filed and respondent Becker was made a party respondent. Both respondents have filed returns.
The substance of the allegations of relator's amended petition for our alternative writ is as follows:
Relator possesses all of the qualifications of a circuit judge, under the Constitution and laws of this State, and at the November, 1928, election was the regularly nominated candidate on the Democratic ticket for the office of Judge of the Fourth Judicial Circuit of Missouri. Dorus D. Reeves was the regularly nominated candidate for said office on the Republican ticket.
Gentry County is one of the counties comprising said Fourth Judicial Circuit and Alanthus precinct of Wilson Township was one of the regularly established election precincts of said county. According to the reading of the ballots by the judges of election and the tally and count thereof made by the clerks of said precinct, relator received therein 127 votes and said Reeves 143 votes for said office, and the tally list so showing was duly certified as correct by the judges and clerks of said election precinct. In setting down the number of votes cast for the several candidates at the foot of the poll book in said precinct, the total vote of relator was set down as 127, and of said Reeves as 148. This was followed by the final certificate of correctness signed by the judges and clerks of election and the poll book was returned in that form to respondent Caster.
Siloam precinct of Howard Township was one of the regularly established election precincts of said Gentry County. According to the reading of the ballots by the judges and the tally and count thereof made by the clerks of election of said precinct, relator received sixty-four votes, and said Reeves received thirty-three votes for said office and the tally list so showing was certified as correct by the judges and clerks of said election precinct.
David School House precinct, in Huggins Township, was one of the regularly established election precincts of Gentry County at said election. According to the reading of the ballots by the judges and the tally and count thereof made by the clerks of the election of said precinct, relator received ninety-eight votes for said office and said Reeves received 105 votes for said office, and the tally list so showing was certified as correct by the judges and clerks of said election precinct.
The judges and clerks of election of each of said precincts of Siloam and David School House signed the final certificates, provided for that purpose at the foot of their respective poll books, and failed to fill in the number of votes relator and said Reeves received in said precincts for the office of Judge of the Fourth Judicial Circuit.
By reason of the foregoing facts, relator claims that he sustained a net loss of twenty-nine votes and, if that number of votes be added to those to which he is shown to be entitled in the remaining precincts of the Fourth Judicial Circuit, he will be entitled to the certificate of election as such judge.
We quote from said petition, as follows: "That thereafter it became and was the duty of the said W.W. Caster as Clerk of the County Court of said Gentry County, within seven days after said election, held on said 6th day of November, 1928, to transmit to the Secretary of State of the State of Missouri, a fair abstract of the votes given in said county, including said precincts of Alanthus, Siloam and David School House, for the office of Judge of the Circuit Court as aforesaid, but the said W.W. Caster, as such clerk of said County Court, arbitrarily, wilfully, wrongfully and unlawfully and for the purpose and design of cheating and defrauding this relator out of said office, has failed and refused to certify to said Secretary of State the correct vote as returned to him by the judges and clerks of said voting precincts as aforesaid; that Dorus D. Reeves received for said office of Circuit Judge at said Alanthus precinct one hundred and forty-three votes, but the said W.W. Caster, as County Clerk, arbitrarily, wrongfully, wilfully, fraudulently and unlawfully and for the purpose of cheating this relator out of the office of Circuit Judge, certified to said Secretary of State, that the said Dorus D. Reeves received one hundred and forty-eight votes in said Alanthus Precinct; and in furtherance of said design and purpose the said W.W. Caster, as Clerk of the County Court of Gentry County to so cheat and defraud this relator out of the office of Circuit Judge, as aforesaid, did arbitrarily, unlawfully, wrongfully, fraudulently and wilfully, fail and refuse to certify to said Secretary of State the fact as shown by the returns of said election, that this relator received for the office of Circuit Judge sixty-four votes at said Siloam Precinct and ninety-eight votes at said David School House Precinct and that the said Dorus D. Reeves received thirty-three votes at said Siloam Precinct and one hundred and five votes at said David School House Precinct."
The reason why respondent Caster has refused to certify to the Secretary of State the votes cast for the candidates for the office of judge of the Fourth Judicial Circuit and all other offices voted for in said precincts of Siloam and David School House is alleged by relator to be the neglect of the judges and clerks of said election precincts to recopy in the additional blanks at the end of the poll books the total of the votes cast by the voters of said precincts as shown on the respective tally sheets.
Relator alleges that he made demand on respondent Caster to certify to the Secretary of State what relator contends to be the true and correct vote of said precincts of Alanthus, Siloam and David School House, as shown by the tally sheets in the respective precincts.
It is then alleged that respondent "Charles U. Becker is now the duly qualified and acting Secretary of State and that as such Secretary of State has received the erroneous certificate of the Clerk of Gentry County Court and is proceeding to and will cast up the votes as so certified to him and will award the certificate to the said Dorus D. Reeves as Judge of the Fourth Judicial...
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