State ex rel. Dorsey v. Sprague

• Citation: 33 S.W.2d 102,326 Mo. 654
• Decision Date: 22 October 1930
• Docket Number: 30679,30680,30681
• Parties: The State ex rel. Ira A. Dorsey and Gabriel Roth v. Harry E. Sprague and John T. Fitzsimmons, Judges of Circuit Court. the State ex rel. A. Samuel Bender and Harry C. Meyers v. Harry E. Sprague and John T. Fitzsimmons, Judge of Circuit Court
• Court: United States State Supreme Court of Missouri

33 S.W.2d 102

326 Mo. 654

The State ex rel. Ira A. Dorsey and Gabriel Roth v. Harry E. Sprague and John T. Fitzsimmons, Judges of Circuit Court. the State ex rel. A. Samuel Bender and Harry C. Meyers v. Harry E. Sprague and John T. Fitzsimmons, Judge of Circuit Court

Nos. 30679, 30680, 30681

Supreme Court of Missouri

October 22, 1930

Preliminary rule made absolute.

Henry Kortjohn, Jr., for relators.

(1) The Primary Election Contest Law (Laws 1929, Sec. 3, p. 195) provides "that the appearance of the name of any voter upon the register of qualified voters in cities and counties where registration of qualified voters is now or may hereafter be required, shall be conclusive evidence of the proper qualifications of such registrants." This provision is unconstitutional and is in conflict with Article III, Constitution of Missouri. State ex rel. v Atkinson, 271 Mo. 42; State ex rel. O'Donnell v Wells, 21 S.W.2d 766; Schimmelpfenning v Wells, 24 S.W.2d 160. (2) This Primary Election Contest Law is also unconstitutional for the reason that it violates the Missouri Constitution, Art. VI, Sec. 1, which vests the judicial power of the courts, and also Section 10 of Article II of the Constitution providing that: "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." State ex rel. v. Woodson, 161 Mo. 444; Parsons v. Harvey, 281 Mo. 413; State ex rel. Barrett v. May, 290 Mo. 302; In Re Letcher, 269 Mo. 140; Sec. 2340, R. S. 1919. (3) The right to contest an election and recount the ballots is not a natural right, but exists by authority of the Statutes. State ex rel. v. Hough, 193 Mo. 643; State ex rel. v. Slover, 134 Mo. 15; State ex rel. v. Spencer, 166 Mo. 285. (4) A nomination to office is a valuable right, which may be protected through writ of prohibition. State ex rel. Ponath v. Hamilton, 15 S.W.2d 343.

George L. Vaughn for respondents.

(1) The right to contest and recount the ballots cast at a primary election is conferred by Sections 3 and 8 of Article VIII of the Constitution of Missouri as amended by Amendment No. 9 to Article VIII, and by the Act of June 7, 1929, Laws 1929, page 194, and by Sec. 5403, R. S. 1919, as amended by Laws 1921, Ex. Sess., page 70. Constitution, Art. VIII; Laws 1925, pp. 410, 411; Laws 1929, p. 194; Laws 1921, Ex. Sess., p. 70. (2) The Legislature was empowered to enact laws providing for contests of primary elections. Secs. 3 and 8, Amendment 9, Laws 1925, p. 410; State v. Coburn, 168 S.W. 959; State v. Hartman, 231 S.W. 982. (3) Section 8 of Amendment No. 9, which prescribes that election contests, except for the offices of Governor and Lieutenant-Governor, shall be heard and determined by the courts of law, or by one or more judges thereof, and commands the Legislature, by general law, to designate the courts or judges by whom the several classes of election contests shall be tried and to regulate the manner of trial and all matters incident thereto, authorized the General Assembly to enact Section 2 of the Act of 1929, providing that "circuit courts and the judges thereof in vacation are hereby vested with jurisdiction and authority to hear and determine contests of primary elections." Laws 1925, p. 411; State v. Hiller, 278 S.W. 708. (4) In interpreting a statute the courts give it effect according to its terms, if possible to do so. If an enactment "is fairly susceptible of two or more constructions, that interpretation will be adopted which will avoid the effect of unconstitutionality, even though it may be necessary, for this purpose, to disregard the more usual or apparent import of the language employed." State v. Atkinson, 195 S.W. 745; Dorrance v. Dorrance, 148 S.W. 100. (5) The unconstitutional portion of an act, if severable therefrom, does not affect the validity of the remainder of the act which is constitutional; and a proviso in an act providing for contests of primary elections and making the appearance of the names of voters on the registration lists of certain classes of cities and counties conclusive evidence of the qualifications of such registrants to vote, although unconstitutional because it is contrary to Article III of the Constitution of Missouri, does not affect the validity of the remainder of the act. State v. Kearns, 264 S.W. 782; State v. Schmoll, 282 S.W. 706; Dorris Motor Co. v. Colburn, 270 S.W. 345. (6) The Legislature, by the Primary Election Contest Act of 1929, intended to create a distinct method of procedure suitable to the speed necessary to contest the nomination for office between the time of holding the primary or nominating election in August and the general election of officers in November. Act of 1921, Laws 1921, pp. 329, 330; State v. McElhinney, 286 S.W. 951. (7) The history of primary legislation in Missouri, as evidenced by legislative enactments and constitutional amendments, shows a fixed intention on the part of the people and the Legislature to provide, by law, protection and safeguards against fraud in primary elections and a special and summary method of contesting the same. Art. V, R. S. 1919; Laws 1921, p. 329; Amendment No. 9, supra; R. S. 1919, Sec. 5403 as amended by Laws 1921, Ex. Sess., p. 70; State v. Coburn, supra.

White, J. Frank and Gantt, JJ., concur; Blair, J., concurs in Paragraph II and the result; Atwood, J., concurs in the result; Ragland, C. J., dissents in separate opinion; Walker, J., absent.

OPINION

WHITE

Each of these three cases is a proceeding whereby the relators seek to prohibit the Judges of Division Number Two of the Circuit Court of the City of Saint Louis from entertaining a primary election contest.

Upon the issuance of our preliminary rules in prohibition the respondents filed their several returns, to which relators for reply filed general denials. But essential facts are not in dispute.

In cases No. 30679 and No. 30680, the relators were candidates for the nomination for Constable on the Republican ticket at the August primary, 1930, in the Fifth Constabulary District in the City of St. Louis. In Case No. 30,681, the relators were candidates for the nomination for Justice of the Peace on the Republican ticket in that constabulary district.

The vote for the several parties to the contest suits in that district, as returned by the Board of Election Commissioners of the City of St. Louis, was as follows: For Constables: Ira A. Dorsey received 2408 votes; Gabriel Roth received 2486 votes; Jordan W. Chambers received 1740 votes; Jeff Covington received 1449 votes. Dorsey and Roth were returned as nominated.

The vote for Justice of the Peace in that district as returned by the board, was as follows: A. Samuel Bender received 2055 votes; Harry C. Meyers received 2349 votes; Nicholas A Polito received 1211 votes. Bender and Meyers were returned as nominated.

The defeated candidate, Jeff Covington, brought a proceeding before Judge Sprague of Division Number Two of the Circuit Court of the City of St. Louis against Dorsey and Roth to contest their nominations for constable, alleging certain fraud in the several different wards and precincts; that some votes cast for the contestants were counted for the contestees, and other irregularities and frauds were committed, by which the contestees, relators here, were declared nominated. Relators in Case No. 30679 seek to prohibit further proceeding in that contest.

Defeated candidate Jordan W. Chambers brought similar suit to contest the election of Dorsey and Roth; relators in No. 30680 seek to prohibit further proceedings in that contest.

Nicholas Palito, defeated candidate, brought suit against Harry C. Meyers and A. Samuel Bender to contest the nomination of the latter two for justices of the peace. Relators in No. 30681 seek to prohibit further proceeding in that contest.

The contestants in each case, August 16, 1930, served what was styled a "notice of contest;" August 20th they filed what they designated "a contest of primary election." These were filed in the office of the Clerk of the Circuit Court of the City of St. Louis. To each of these was attached a summons requiring the contestee to appear before the judges of the circuit court on the first day of the October term. Personal service of the summons was had only against contestee Dorsey. The other summonses were not served.

Respondents here, contestants there, contend that these summonses were void and of no force and effect. They call attention to the fact that the petitions filed August 20, 1930, in the office of the Clerk of the Circuit Court of the City of St. Louis, were presented to the respondent Judge Harry E. Sprague, Judge in Division Number Two of the Circuit Court, and said respondent Sprague issued orders to the contestees returnable on the 26th day of August, to show cause, and thus the contest proceedings were not returnable to the October term of court, were not brought to any court, nor pending in any court, but were presented to Judge Sprague, Judge of the Circuit Court, and by him ordered returnable in vacation according to the terms of the Act of 1929.

The contestees in each contest case moved to dismiss the proceeding for want of jurisdiction. All of these motions were by Judge Sprague of that division overruled in a memorandum which he filed with the case indicating that the court would proceed with the trial of the contest cases. Thereupon the contestees, relators, brought these proceedings.

The petitions of relators set out in full the petitions of the several contestants and other pleadings in the contest cases, and the manner by which process was claimed to be served upon relators.

I. Relators contend...