State ex rel. Ellis v. Brown

• Decision Date: 17 October 1930
• Citation: 33 S.W.2d 109,326 Mo. 637
• Parties: The State ex rel. Edgar C. Ellis v. Darius A. Brown, Judge of Circuit Court
• Court: Missouri Supreme Court

33 S.W.2d 109

326 Mo. 637

The State ex rel. Edgar C. Ellis v. Darius A. Brown, Judge of Circuit Court

Supreme Court of Missouri

October 17, 1930

Writ quashed.

Louis A. Laughlin, Raymond G. Barnett, W. B. Brown and Samuel A. Dew for relator.

As to the points and authorities, brief and argument in behalf of relator, the court is respectfully referred to the brief of relator in State ex rel. Ellis v. Brown, which brief, it has been stipulated by the parties and counsel, may apply to and be considered in both said causes.

Chet A. Keyes for respondent.

(1) A denial of registration is a denial of the right to vote. Sec 5, Art. VIII. Mo. Constitution, as amended in 1924. (2) The statutes give the right of appeal to every voter who is denied registration by the board of election commissioners and such statutes in no way limit the inquiry of the court nor limit the jurisdiction of the court to order registration of a voter who has the qualifications prescribed by the Constitution. Sec. 33, Laws 1921, p. 353; State ex rel Meyer v. Woodbury, 10 S.W.2d 524; County Court v. Sparks, 10 Mo. 118; Welch v. Williams, 96 Cal. 365; People ex rel. Johnson v. Earl, 94 P. 298; State ex inf. v. Lamar, 316 Mo. 721; Sanders v. Lacks, 142 Mo. 263; Bowers v. Smith, 111 Mo. 61; State ex rel. v. Hackman, 273 Mo. 670; State ex inf. v. Bird, 295 Mo. 344.

Ragland, C. J. Gantt, Walker and White, JJ., concur; Blair, Frank and Atwood, JJ., dissent; Atwood, J., in a separate opinion in which Blair and Frank, JJ., concur.

OPINION

RAGLAND

Certiorari. Relator states the case as follows "Jack Collins was on June 19, 1930, a qualified and registered voter of the 5th precinct of the 16th Ward of Kansas City, Missouri, and his name had been so returned on the registration list as a voter by the board of registration to the board of election commissioners. On that date was held, in accordance with law, a regular intermediate registration, preliminary to the ensuing primary election to be held in said city on August 5, 1930. It is admitted that said Collins was of legal age and had resided in Missouri and in said Kansas City the length of time required by law to be registered as a voter in said city. On July 30, 1930, said Collins moved out of said precinct and ward into the 2nd precinct of the 10th Ward, of said city.

"Section 29 of Laws of Missouri 1921, page 350, as amended by laws of the Second Extra Session 1921, page 29, provides that in the event of the change of residence by such a registered voter, after the close of registration from one precinct and ward to another, if he shall on or before the 10th day preceding the next ensuing election, apply to the board of election commissioners to have his name transferred from the precinct in which he is registered, said board shall cause him to be sworn and examined and his statement to be taken down in writing and signed and sworn to by him, and that if said board be satisfied that such change of residence has been made, and that he is entitled to have his name so transferred, they shall cause his name to be erased from the registry of his former precinct and transferred to the precinct in which he resides.

"Said Collins, however, failed to apply to said board on or before the 10th day preceding the said election of August 5, 1930. He did apply to said board on Friday, August 1, 1930, to have said transfer made, and said board refused to cause him to be sworn and examined, and entered an order denying his application, for the reason that it was not made on or before the 10th day preceding the ensuing primary election. On August 1, 1930, said Collins took an appeal to the circuit court from the order of the board denying his application, setting forth all the foregoing facts and attaching the examplification of the said record of the board of election commissioners. Said appeal was filed on the 2nd day of August, 1930, with the Clerk of Division No. 2 of the Circuit Court of Jackson County, Missouri, of which respondent herein was and is the judge. On the same day relator, then a registered voter and a candidate for nomination for the office of Representative to Congress from the 5th Congressional District, at the said ensuing primary election, appeared in person and by attorney and filed a motion in said circuit court to dismiss said Collins's application or appeal on the ground that it appeared on the fact of the record that the applicant failed to apply to the board of election commissioners for a transfer of his registration on or before the 10th day preceding the next ensuing election. This motion the respondent overruled, and the application was thereupon heard on its merits, its statements found to be true, said application was by respondent sustained, and said board was ordered to erase applicant's name from the said precinct in which he was then registered and to transfer it to the said Second Precinct of the 10th ward where he then resided, and the clerk ordered to so notify said board of the action of the court. Thereupon, relator filed his petition in this court for a writ of certiorari, setting forth the contents and attaching true copies of said documents and records hereinbefore referred to."

The opinion which is to follow should be read in connection with the one handed down in State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104, a companion case, decided at this term. That this is also a "made case" is readily discernible from the unnecessary formalities so carefully observed "in taking the appeal" from the order of the board of election commissioners. However, it is not a moot case; it is entitled to the consideration that the importance of the question presented demands.

The controlling statute is as follows:

"Whenever any person who has been duly registered as a voter by the board of registration of the precinct in which he then resides, and whose name shall have been returned on the registration list as a voter by the board of registration to the board of election commissioners, after the close of registration shall change his residence from one precinct in said city to another, or from one part of such precinct to another part thereof, before the day of election next following his registration, and shall after making such change at any time on or before the tenth day preceding such election, apply to the board of election commissioners to have his name transferred from the precinct in which he is registered, or his residence changed from his former to his present residence in such precinct, said board shall cause him to be sworn and examined as to the facts of such change, and his statement shall be taken down in writing and signed and sworn to by him and duly certified by said board; if said board shall be satisfied that the applicant has changed his residence, as stated, and that he is entitled to have his name transferred and his place of residence changed, they shall first cause his name, where he moved from his former precinct, to be erased from the registry thereof, and transferred to the precinct in which he then resides, or if he has changed his residence from one place to another in said precinct they shall change his address on the register of such precinct, and note in the column of 'remarks' the precinct to which the transfer is made." [Sec. 29, Laws 1921 (2d Ex. Sess.), p. 29.]

It is the contention of relator that this statute is mandatory in respect to its provision that a registered voter who changes his residence after the close of registration shall apply to the Board of Election Commissioners, on or before the tenth day preceding the election, to have his name transferred from the precinct in which he is registered to the one in which he then resides. If it is to be so construed, then it disfranchises all voters who change their residence within the period of ten days next before an election.

The Constitution provides that "all citizens of the United States . . . over the age of twenty-one years who have resided in this State one year, and in the county, city or town sixty days immediately preceding the election at which they offer to vote . . . shall be entitled to vote at...