State ex rel. Doud v. Lesueur
| Decision Date | 15 December 1896 |
| Citation | 38 S.W. 325,136 Mo. 452 |
| Parties | The State ex rel. Doud et al. v. Lesueur |
| Court | Missouri Supreme Court |
Writ denied.
Upton M. Young for relator.
R. F Walker, attorney general, and R. L. McLaran for respondent.
Brace, C. J., does not sit.
OPINIONIn Banc.
Mandamus.
On the twenty-second day of October, 1896, the relator Doud filed his petition in this court praying for a writ of mandamus directed to the secretary of state commanding and requiring him to accept and file the certificate and petition of nomination of the "so-called" silver party of the state of Missouri under the caption of "Silver Party Ticket," and to cause it to be printed and placed on the official ballot, duly certified, together with the other candidates to be voted for on November 3, 1896, at the general election to be held on said day.
Relator alleged that on the thirteenth day of October, 1896, he presented a petition of nomination of certain candidates as the candidates of the "silver party" for the various state offices and for presidential electors, duly signed and acknowledged by eleven hundred and sixty-six qualified voters of the state of Missouri to the respondent, secretary of state, and requested him to file the same and place said candidates on the official ballot under the caption of "Silver Party" but the respondent refused to file or recognize the said nominees and place them on said ballot.
In his return to the alternative writ the secretary of state traversed the allegations of the writ; denied that the petition was signed, acknowledged and certified as the law requires; that ninety-four of the names now appearing on said petition were not signed to the petition to which they are now attached but were appended to another and different petition, and have since been detached therefrom and attached to the petition now presented to the court, and that the petition presented to respondent did not contain the requisite number of qualified electors duly acknowledged and certified; that said petition for the nomination of Hon. James S. Botsford, for judge of the Kansas City court of appeals was signed by residents and citizens of that portion of the state over which the St. Louis court of appeals has jurisdiction, and that said petition for the nomination of Hon. R. E. Rombauer, the republican nominee for judge of the St. Louis court of appeals, was signed by citizens of the state living wholly within the territorial jurisdiction of the Kansas City court of appeals.
He further alleged that the caption "Free Silver Party" was fraudulent, misleading, and contrary to and in violation of section 4773, Revised Statutes, 1889, that said caption was calculated to mislead and deceive the electors, in this, that said ticket contained the names of democratic and populist electors nominated both at large and from the various congressional districts in the state, and also contained the nominees of the republican state convention for the various state offices to be filled at said election on November 3, 1896; that said ticket contains the names of the republican nominees for judge of the two courts of appeals; that said nominees of the republican party were nominated and selected upon a platform in direct contravention of the position and policy of the "silver party" as set forth in the caption of said petition, presented to respondent for filing and certification; that if certified on the official ballot the electors of the state would be misled thereby and fraudulently induced to vote for "gold standard" candidates.
Depositions were taken and stipulations filed as to evidence and the cause heard and argued on the twenty-sixth day of October and the peremptory writ was denied. The urgency of the case was such that the court considered it at once, but owing to the pending call of the docket was unable to hand down a written opinion at the time.
It appeared in proof that prior to September 26, 1896, the relator Doud and others in concert with him conceived the idea that they could greatly enhance the chances of Mr. Lewis, the republican nominee for governor, by having what was known as a "silver party" ticket placed upon the official ballot. That ticket was to be headed by the democratic electors, to be followed by all the republican nominees for state offices. With this purpose in view, inasmuch as there was no party known by that name in Missouri and no such party had cast three per cent of the votes at the last general election, resort was had to a certificate of nomination by electors as permitted by section 4763, Revised Statutes, 1889.
This petition was circulated and ninety-two persons appear to have signed the same prior to September 26. That petition contained the following caption:
For president, William J. Bryan, of Nebraska.
For vice-president, Arthur Sewall, of Maine.
For presidential electors, the same nominees as will appear on the demo-
cratic ticket.
Judge of the Supreme
Court
Rudolph Hirzel
Clayton, Mo.
It further appears in evidence that the democratic presidential electors were nominated at a state convention held at the city of Jefferson on the fifth day of August and among others John A. Lee, W. T. Jenkins, James E. Hazell and W. N. Evans were chosen by said convention, that afterward said last named four electors resigned from said ticket and the vacancies so created were filled by the democratic state central committee by the appointment of Thomas B. Anderson, James J. Shoecraft, Arcus L. Douglass, and Simeon A. Handy, who had previously been nominated by the state populist convention at Sedalia.
The petition presented to the secretary of state contained the following caption:
President
William J. Bryan
Lincoln, Neb.
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State ex rel. Howe v. Hughes
... ... Snyder v. Newman, 3 S.W. 849, 91 Mo ... 451; State ex rel. Thomas v. Williams, 12 S.W. 905, ... 99 Mo. 303; State ex rel. v. Lesueur, 38 S.W. 325, ... 136 Mo. 459; Ex parte Ashcraft, 193 Mo.App. 488, 186 S.W ... 533; State ex rel. v. Stone, 190 S.W. 601, 269 Mo ... 343. (a) ... ...