State ex rel. Donnell v. Osburn

• Citation: 147 S.W.2d 1065,347 Mo. 469
• Decision Date: 19 February 1941
• Docket Number: 37524
• Parties: State of Missouri at the relation of Forrest C. Donnell, Relator, v. Morris E. Osburn, as Speaker of the House of Representatives
• Court: United States State Supreme Court of Missouri

147 S.W.2d 1065

347 Mo. 469

State of Missouri at the relation of Forrest C. Donnell, Relator, v. Morris E. Osburn, as Speaker of the House of Representatives

No. 37524

Supreme Court of Missouri

February 19, 1941

Peremptory writ ordered.

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

(1) All material averments of fact in relator's petition (when taken as and for the alternative writ) which are not specifically or specially denied in respondent's return are taken as confessed. Bliss v. Brand River Drain Dist., 330 Mo. 360, 49 S.W.2d 121; State ex rel Potter v. Riley, 219 Mo. 691; State ex rel. Wheeler v. Adams, 161 Mo. 363-4. (a) The allegations in respondent's return 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 traverse 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. 364; State ex rel. v. Vail, 53 Mo. 97. (b) Where a case is submitted on the petition or alternative writ 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. Thomas, 323 Mo. 248, 198 S.W.2d 714. (2) Any officer charged with the performance of a mandatory ministerial duty may be compelled to perform such duty by mandamus. "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined." Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 71; State ex rel. Mo., etc., Railroad Co. v. Johnston, 234 Mo. 350, 137 S.W. 595; State ex rel. Maring v. Swanger, 212 Mo. 481; State ex rel. Register of Lands v. Secretary of State, 33 Mo. 293; State ex rel. Davisson v. Bolte, 151 Mo. 372; People ex rel. McCauley v. Brooks, 16 Cal. 11. (a) Mandamus will issue to a canvassing officer or canvassing board to canvass the election returns certified to them, and to declare the result. State ex rel. Metcalf v. Garesche, 65 Mo. 480; State ex rel. Atty. Gen. v. Steers, 44 Mo. 223; State ex rel. Ford v. Trigg, 72 Mo. 366; Mayo v. Freeland, 10 Mo. 629; State ex rel. Davisson v. Bolte, 151 Mo. 372; State ex rel. Broadhead v. Berg, 76 Mo. 144; Barnes v. Gottschalk, 3 Mo.App. 122; State ex rel. v. Stuckey, 78 Mo.App. 543; State ex rel. Glenn v. Smith, 129 Mo.App. 57; State ex inf. Anderson v. Moss, 187 Mo.App. 157, 172 S.W. 1181; Meyers v. Chalmers, 60 Miss. 772; McHenry v. State, 91 Miss. 562, 44 So. 831, 16 L. R. A. (N. S.) 1066; State ex rel. Husting v. State Board of Canvassers, 159 Wis. 216, 150 N.W. 547; State ex rel. v. Superior Court, 118 Wash. 664, 204 P. 797; Johnston v. State, 128 Ind. 16, 27 N.E. 422, 25 Am. St. Rep. 412, 12 L. R. A. 235; State ex rel. Barbin v. Strong, 32 La. 579. (b) Mandamus will issue to officers of legislative bodies, including Speaker, acting as canvassing officers or boards. State ex rel. Benton v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L. R. A. 796; State ex rel. Oldham v. Dean, 84 Neb. 344, 121 N.W. 719; State v. Moffitt, 5 Ohio 367; State ex rel. Davisson v. Bolte, 151 Mo. 362; 18 R. C. L., sec. 112, p. 188. (c) The Bill of Rights, in our Missouri Constitution, provides: "The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay." Sec. 10, Art. II, Mo. Const. (3) The provisions of Article V, Section 3 of the Constitution of Missouri, and Section 10169, Revised Statutes 1929, are the only provisions with respect to the canvassing of the vote and declaring the results in the election of Governor, and such provisions are mandatory and the duties enjoined upon the person serving as Speaker of the House of Representatives are merely ministerial which can neither be delegated, evaded, delayed nor denied. This duty may be compelled by mandamus. State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L. R. A. 796; State ex rel. Oldham v. Dean, 84 Neb. 344; State ex rel. v. Bolte, 151 Mo. 372; State v. Moffitt, 5 Ohio 367; Drew v. State Canvassing Board, 16 Fla. 17; State ex rel. v. Board of Election Commissioners, 36 Wis. 498, 150 N.W. 547; State ex rel. v. Board of Election Commissioners, 159 Wis. 249; State ex rel. v. Mayor, 170 Wis. 133. (4) The duties of the Speaker under Section 3, Article V of the Constitution, and Section 10169, Revised Statutes 1929, are not political, legislative or judicial, but are ministerial and imperative and may be compelled by mandamus. This is true even if the duty of the officer involves some construction of the statute or Constitution, the duty, however, being imperative. Bradley v. Board of State Canvassers, 154 Mich. 274; Territory Alaska v. Canvassing Board, 5 Alaska, 602; State v. Governor of Ohio, 5 Ohio 534; 38 C. J., pp. 677, 688. Speaker herein is not the State, since the servant of the State, the respondent Speaker, by his act of disobedience does not represent or stand for the State. 38 C. J., 659; McCauley v. Brooks, 16 Cal. 11; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432. (5) The Speaker cannot go back of the certified returns in opening and publishing the returns and declaring the result therein disclosed. State ex rel. Atty. Gen. v. Vail, 53 Mo. 111; State ex rel. Atty. Gen. Ewing v. Townsley, 56 Mo. 111; Sheridan v. St. Louis, 183 Mo. 33; Mayo v. Freeland, 10 Mo. 630; State ex rel. v. Trigg, 72 Mo. 365; State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L. R. A. 796; Drew v. State Canvassing Board, 16 Fla. 17; State of Mississippi v. Board of Supervisors of Coahoma County, 91 Miss. 582, 44 So. 831, 16 L. R. A. 1066; State ex rel. v. Board of El. Commrs., 36 Wis. 498; State ex rel. Husting v. Board of Canvassers, 159 Wis. 216, 150 N.W. 542; People ex rel. v. White, 88 Colo. 229, 294 P. 535. (6) The allegation in respondent's return that a contest for the office of Governor is pending before the General Assembly is a mere conclusion of the pleader as to the legal effect of the James T. Blair, Jr., petition and the various reports to, and resolutions adopted by, the General Assembly. These proceedings on their face show that no election contest is pending (a) because an election contest is an adversary proceeding and (b) because some person must be declared elected before there can be an election contest. Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; Secs. 10361, 10362, 10363, R. S. 1929; State v. Francis, 88 Mo. 561; Austin v. Dick, 100 Cal. 199, 34 P. 655; Burke v. Perry, 26 Neb. 420, 42 N.W. 402; Hargett v. Parish, 114 Ala. 515; Leslie v. Griffin, 25 S.W.2d 920; 20 C. J., p. 57; Toncray v. Budge, 95 P. 32. (7) The office of Governor of Missouri does not exist by virtue of the common law. It is a creation of the Constitution and statutes. It can only be acquired by an election pursuant to the provisions of the Constitution and statutes. It is a settled rule that where a new right or the means of securing it is conferred and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress. The right and power vested in the General Assembly to hear and determine the election contests for the office of Governor in such manner as may be provided by law is an exclusive remedy and necessarily excludes the right of the General Assembly to conduct a legislative investigation to determine who has been elected to such office. State ex rel. Rainwater v. Ross, 245 Mo. 36, 149 S.W. 451; State ex rel. v. Slover, 134 Mo. 10; State ex rel. v. Vail, 53 Mo. 57; State ex rel. v. Mason, 77 Mo. 189; State ex rel. v. Francis, 88 Mo. 557; Baxter v. Brooks, 29 Ark. 173; State ex rel. v. Marlowe, 15 Ohio St. 114; Paine on Elections, sec. 811, p. 676; Commonwealth ex rel. v. Garrigues, 28 Pa. St. 12; Commonwealth ex rel. v. Leech, 44 Pa. St. 334. The legislative investigation provided by the adoption of the committee's report and Resolution No. 3 is not authorized by the Constitution or any statute and as such is unlawful, illegal and unconstitutional and violates Section 1 of Article IV of the Constitution of Missouri in that it attempts to invest a committee of the joint assembly with judicial powers and violates Article III of the Constitution of Missouri in that it attempts to invest a committee of the legislative department with powers and duties belonging to the judicial department.

Roy McKittrick, Attorney General, J. E. Taylor, R. L. Hyder and A. O'Keefe, Assistant Attorneys General, for respondent.

(1) Respondent's return specifically denies the allegations of relator's petition that the returns of the general election show relator had the highest number of votes for the office of Governor, or had a plurality of any votes for said office. State ex rel. Chaney v. Grinstead, 314 Mo 55, 282 S.W. 719. (2) The history of the constitutional and statutory provisions establishes that the duty to determine which candidate for the office of Governor had the highest number of votes, and to declare such candidate duly elected, is imposed upon the General Assembly in joint session, and not upon the Speaker of the House. Sec. 10, Mo. Const. 1820; Sec. 19, Art. IV, Mo. Const. 1820; Sec. 15, R. S. 1825, p. 349; Sec. 17, Art. V, Mo. Const. 1865; Sec. 36, R. S. 1865, p. 65; Sec. 3, Art. V, Mo. Const. 1875; House Journal, 1856-7, pp. 34, 49, 66, 67, and 68. (a) The construction placed upon a...