State ex rel. Donnell v. Searcy

• Decision Date: 10 June 1941
• Docket Number: 37533
• Parties: State of Missouri at the relation of Forrest C. Donnell, Relator, v. L. N. Searcy, Bert Bradley, Jess Sexton, Ray Mabee, George A. Rozier, Roy Hamlin, Paul K. Gibbons, H. C. Crist, Randall R. Kitt and C. P. Junge, Members of Committee of the Joint Assembly of the House and Senate of the State of Missouri, pursuant to Joint Resolution No. 3, adopted by the Joint Session of the House and Senate of the State of Missouri on January 10, 1941
• Court: Missouri Supreme Court

152 S.W.2d 8

347 Mo. 1052

State of Missouri at the relation of Forrest C. Donnell, Relator, v. L. N. Searcy, Bert Bradley, Jess Sexton, Ray Mabee, George A. Rozier, Roy Hamlin, Paul K. Gibbons, H. C. Crist, Randall R. Kitt and C. P. Junge, Members of Committee of the Joint Assembly of the House and Senate of the State of Missouri, pursuant to Joint Resolution No. 3, adopted by the Joint Session of the House and Senate of the State of Missouri on January 10, 1941

No. 37533

Supreme Court of Missouri

June 10, 1941

Preliminary Rule Discharged.

Frank E. Atwood, Charles E. Rendlen, James A. Finch and Richmond C. Coburn for relator.

(1) All material averments of fact in relator's petition which are not specifically or specially denied in respondents' return are taken as confessed. Bliss v. Grand River Drain. Dist., 330 Mo. 360, 49 S.W.2d 121; State ex rel. Potter v. Riley, 219 Mo. 667, 118 S.W. 647; State ex rel. Wheeler v. Adams, 161 Mo. 349, 61 S.W 894. The allegations in the return of the respondents L. N Searcy et al., that relator did not have a majority of the legal votes or that the returns did not show the correct legal vote, and all similar allegations therein, do not specifically and directly deny the allegations in the petition and are equivocal and evasive, and an attempt to plead a different state of facts from that averred in the petition, and since they do not directly transverse the allegations in the petition, the facts alleged in the petition against which such allegations are made are to be taken as true. State ex rel. Wheeler v. Adams, 161 Mo. 349, 61 S.W. 894; State ex rel. v. Vail, 53 Mo 97. Furthermore, the allegations with reference to the legal votes, found in the return of the respondents L. N. Searcy et al., constitute a conclusion of law and are of no effect as an averment of fact. State ex rel. Brown v. Stewart, 313 Mo. 1, 281 S.W. 768. Where a case is submitted on the petition and return thereto, the court will look to the facts well pleaded in the petition and return for the facts of the case. State ex rel. Buckley v. Thompson, 323 Mo 248, 91 S.W.2d 714. In a proceeding in prohibition the court will be guided by what the respondent proposes to do, not by what he alleges in his return. Barnes v. Gottschalk, 3 Mo.App. 111. (2) The writ of prohibition issues to prevent action in excess of jurisdiction as well as action where there is no jurisdiction. State ex rel. Natl. Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W. 418. The writ of prohibition is not only the process in which a superior court prevents an inferior one from exercising jurisdiction with which it has not been invested by law, but is also available to prevent an executive officer from performing an act judicial in its nature. State ex rel. Bates v Remmers, 325 Mo. 1135, 30 S.W. 609; State ex rel. United States Fid. & Guar. Co. v. Harty, 276 Mo. 595, 208 S.W. 835; State ex rel. v. Johnston, 234 Mo. 338, 137 S.W. 595; State ex rel. Ellis v. Elkins, 130 Mo. 90, 30 S.W. 333. The nature of the act rather than the official character of the person proceeded against determines the propriety of the issuance of a writ in prohibition. (3) The procedure established for a gubernatorial election contest by the Constitution and statutes of Missouri contemplate the exercise of judicial power. Mo. Const., Art. V, Sec. 25; R. S. 1929, secs. 10360-10365. The determination of an election contest is the exercise of judicial power. State ex rel. McDonald v. Lollis, 326 Mo. 644, 33 S.W.2d 98; State ex rel. United States Fed. & Guar. Co. v. Harty, 276 Mo. 583, 208 S.W. 835; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; State ex rel. Hartley v. Gideon, 225 Mo.App. 459, 40 S.W.2d 745; Barnes v. Gottschalk, 3 Mo.App. 111. The Constitution of Missouri delegates to the General Assembly a limited judicial power to hear gubernatorial election contests. Mo. Const., Art. V, Sec. 25; Cooley, Const. Limitations (8 Ed.), p. 270. (4) The office of Governor does not exist by virtue of the common law granted by the Constitution of the State. Baxter v. Brooks, 29 Ark. 173. The contest of an election did not exist at common law and the proceeding is purely statutory. State ex rel. Jackson County v. Waltner, 340 Mo. 137, 100 S.W.2d 272; Bradbury v. Whightman, 232 Mo. 392, 134 S.W. 5; State ex rel. Keshlear v. Slover, 134 Mo. 10, 31 S.W. 1054; Kehr v. Columbia, 136 Mo.App. 322, 116 S.W. 428; Baxter v. Brooks, 29 Ark. 173; State ex rel. Grissell v. Marlow, 15 Ohio St. 114. The statutory remedy for a contest of an election is exclusive and no other method of contest can be followed. Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629; State ex rel. Keshlear v. Slover, 134 Mo. 10, 31 S.W. 1054; State v. Gamma, 149 Mo.App. 694, 129 S.W. 734; State ex rel. Grissell v. Marlow, 15 Ohio St. 114; Mo. Const., Art. V, Sec. 25. No lawful contest is pending before the General Assembly for the reason that no one has been declared to be the duly elected Governor of Missouri. Mo. Const., Art. V, Sec. 3, Sec. 10169, R. S. 1929, 20 C. J., p. 57; State ex rel. Sale v. McElhinney, 199 Mo. 67, 97 S.W. 159; Barnes v. Gottschalk, 3 Mo.App. 111. No lawful contest is pending before the General Assembly for the reason that the contestant in an election contest must have been one of the candidates in the contested election. 20 C. J., p. 57; Tomcray v. Budge, 14 Idaho 621, 95 P. 26; State ex rel. Circuit Court, 63 S. Dak. 313, 258 N.W. 278; Austin v. Dick, 100 Cal. 199, 34 P. 655; Mo. Const., Art. III, Sec. 25, Sec. 10362, R. S. 1929; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644, Sec. 10340, R. S. 1929; State ex rel. Ewing v. Francis, 88 Mo. 557; Kehr v. Columbia, 136 Mo.App. 322, 166 S.W. 428. No lawful contest is pending before the General Assembly because the petition of James T. Blair, Jr., is so insufficient in its allegations that the General Assembly does not have jurisdiction of the subject matter of the contest of the election for Governor. Sec. 10361, R. S. 1929. No lawful contest is pending before the General Assembly for the reason that the Speaker of the House of Representatives proceeded to the transaction of other business before declaring the relator elected. Mo. Const., Art. V, Sec. 3, Sec. 10169, R. S. 1929; Amos v. Matthews, 99 Fla. 1, 126 So. 308; Weinberger v. Board of Instruction, 93 Fla. 470, 112 So. 253; Ferguson v. Wilcox, 28 S.W.2d 526; Burns v. School District, 295 S.W. 1091; In re Opinion of the Judges, 61 S. Dak. 107, 246 N.W. 295; State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710. (5) Joint Resolution No. 3 does not comply with the constitutional and statutory provisions providing for the contest of a gubernatorial election. Mo. Const., Art. V, Sec. 25, Secs. 10360-10365, R. S. 1929. The Legislature cannot conduct a general investigation except for the purpose of gathering facts relative to proposed legislation or to investigate the administration of an executive officer. 16 C. J., p. 307; State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S.W. 403; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Greenfield v. Russell, 292 Ill. 392, 172 N.E. 102, 9 A. L. R. 1334; Ex parte Hague, 104 N.J.Eq. 134, 147 A. 220, affirmed 9 N. J. Misc. 89, 150 A. 322. Joint Resolution No. 3 is null and void and of no effect because it was vetoed by the Governor. Mo. Const., Art. V, Secs. 12, 14; Gilbreth v. Willett, 148 Tenn. 92, 251 S.W. 910; Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489; In re Quaere of the procedure of the two Houses of the Legislature in contest of the election of executive offices, 31 Neb. 262, 47 N.W. 923. (6) Section 3 of Article VIII of the Constitution of the State of Missouri, in so far as it permits the opening of ballots in election contests, is not self-enforcing. State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319. The only statutory provisions authorizing the opening and recounting of ballots are Sections 10354-10359, inclusive, Revised Statutes 1929. Sections 10354-10359, inclusive, permit only the county clerk to reopen the ballot boxes and recount and recanvass the ballots, and this only in the presence of the contestor and the contestee, and their attorneys, and in the clerk's office. (7) The violation of the writ of prohibition is enforced by a citation of the respondents for contempt. 50 C. J. 713, sec. 148; Howard v. Pierce, 38 Mo. 296. Immunity of a member of the Legislature from arrest except for the reason of treason, a felony, or a breach of the peace, does not prevent the legislator from being cited and convicted for contempt of court. State v. Elder, 31 Neb. 169, 47 N.W. 710; In re Gent, 40 Chancery Div. 190; Henderson v. Dickson, 19 U. C. Q. B. 592. (8) Article III of the Constitution of Missouri separating the powers of the government into three departments -- the executive, the legislative and the judicial -- in practice does not create three entirely independent departments. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; State ex rel. Marion v. Dawson, 284 Mo. 490, 225 S.W. 97; Rhodes v. Bell, 230 Mo. 138, 130 S.W. 465; State ex rel. Davis v. Osborne, 14 Ariz. 185, 121 P. 884; McCauley v. Brooks, 16 Cal. 11. It is the power and the duty of the judiciary to declare null and void a statutory enactment which conflicts with the Constitution. Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60; State ex rel. Elsas v. Mo. Workmen's Comp. Comm., 318 Mo. 1004, 2 S.W.2d 796; State ex rel. Blades v. C. B. & Q. Ry. Co., 251 Mo. 146, 158 S.W. 29; State v. McBride, 4 Mo. 303. The judiciary has the power and duty to require the officers of other departments of the government to act within the limits of the organic law. Cooley, Const. Limitations (8 Ed.), p. 105; Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60; State v. McBride, 4 Mo. 303; In re Investigation of Dauphin Committee Grand Jury, 2 A.2d...