State ex rel. Ellis v. Brown

• Decision Date: 17 October 1930
• Parties: The State ex rel. Edgar C. Ellis v. Darius A. Brown, Judge of Circuit Court of Jackson County
• Court: Missouri Supreme Court

33 S.W.2d 104

326 Mo. 627

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

Supreme Court of Missouri

October 17, 1930

Writ quashed.

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

(1) The jurisdiction of the circuit court over registration is purely statutory, and is confined to cases where the applicant has appeared before the election commissioners within the time and in the manner prescribed by the election law. State ex rel. Meyer v. Woodbury, 10 S.W.2d 524; Smith v McCormick, 105 Md. 224, 65 A. 929; Cox v Bryan, 81 Md. 287; In re Mulholland, 217 Pa 631, 66 A. 1105; In re Hamilton, 30 N.Y.S. 499, 80 Hun, 511. (2) The provisions of the election law in regard to the time in which applications to transfer shall be made or hearings shall be had upon applications to register as absentees are mandatory, and unless complied with are fatal to the application. Gass v. Evans, 244 Mo. 329; Webber v. Hughes, 196 Ind. 542, 148 N.E. 149; 36 Cyc. 1160; 26 Am. & Eng. Ency. Law 691; Endlich on Interp. of Statutes, sec. 434; Bryant v. Lumber Co., 144 Ky 755; Corbett v. Bradley, 7 Nev. 106; In re Seick, 189 P. 314; Blair v. Ridgely, 41 Mo. 63; Cox v. Bryan, 81 Md. 287; School District v. Wallace, 75 Mo.App. 317; State v. Hilmantel, 21 Wis. 566; In re McDonough, 105 Pa. St. 488; Hudgins v. School District, 312 Mo. 1; Hope v. Flentge, 140 Mo. 390; Horsefall v. School District, 143 Mo.App. 541; Ousley v. Powell, 12 S.W.2d 102; State ex rel. v. Mason, 155 Mo. 486; In re Baker, 213 N.Y.S. 524; Ex parte Brown, 297 S.W. 445; Broome's Legal Maxims (8 Ed.) 149.

Chet A. Keyes for respondent.

(1) A denial of registration is a denial of the right to vote. Sec. 5, Art. VIII, 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. 121; 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. 252; Bowers v. Smith, 111 Mo. 45; 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

This is an original proceeding on certiorari. We adopt relator's statement of the case, as follows:

"On and before June 19, 1930, Isadore Katz was a resident of the 4th Ward of the 11th precinct of Kansas City, Missouri. On that date, under the law, the regular intermediate registration of voters was held in said city, preliminary to the ensuing primary election to be held August 5, 1930. Isadore Katz was during all of the day of June 19, 1930, in Chicago, Illinois, more than fifty miles distant from Kansas City. It is admitted that he was a citizen of the United States, was of legal age, and had resided in the State and city the length of time required by law to be registered. On July 22, 1930, he filed with the board of election commissioners of said city, within the time and in the manner required by the registration law, his verified application to be registered as an absentee voter, and filed therewith, as the law requires, proper supporting affidavits of two registered voters of said precinct and ward.

"Section 33 of the Laws of Missouri 1921, page 353, as amended by laws of the Second Extra Session 1921, page 30, requires said board of election commissioners to sit specially to hear said applications for absentees on the Monday, Tuesday and Wednesday of the first week prior to said election, which days in the case in question fell upon July 28, 29 and 30, 1930. Said law also provides that such an applicant shall appear in person before said commissioners on one of said days, so that he may be further examined under oath, and be by said board registered or denied registration. Isadore Katz did not appear before said board on any one of the said days as provided by law, but did appear before said board on Friday, August 1, 1930, and presented his said application. The board entered an order denying his application for the reason that he had failed to appear on one of the three days provided by law for hearing of such applications.

"Said applicant on August 1, 1930, took an appeal to the Circuit Court from the order of the board denying his registration, setting forth all the foregoing facts and attaching the documents and record hereinabove mentioned. Said appeal was filed on August 2, 1930, with the clerk of Division No. 2 of the Circuit Court of Jackson County, Missouri, of which the respondent was and is the judge. Thereupon, relator, Edgar C. Ellis, then a registered voter of said city and candidate for nomination at said ensuing primary election for the office of Representative in Congress from the 5th Congressional District, appeared in person and by attorney and filed a motion to dismiss said application or appeal filed in said division of the Circuit Court for the reason that it appeared on the face of the record that the applicant had failed to appear before the said board on any one of the three days provided by law for the hearing of such applications. This motion was by 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 an order of court made that the said board register said applicant as an absentee voter in said precinct and ward, and that the clerk of said court forthwith notify said board of such action of the court.

"Thereupon, relator, said Edgar C. Ellis, filed in this court his petition for a writ of certiorari, setting forth the contents and attaching true copies of all of said documents and records hereinabove referred to."

It is the contention of the relator that the provisions of the election law in regard to the time in which an applicant for registration as an absentee must appear in person before the board of election commissioners are mandatory, and unless such applicant appears on one of the days appointed by the statute the board is bound to reject his application; and further, that the board of election commissioners having no power to grant the application of one who so failed to appear, the circuit court whose jurisdiction is appellate, and therefore derivative, is likewise without such power. The questions presented call for constructions of Sections 30 and 33 of the Act Relating to Registration and Elections in Cities Having 100,000 Inhabitants or Over. The Act was passed at the regular session of the Legislature in 1921. [Laws 1921, p. 330.] At the second extra session held that year many of the sections of the original act were amended. [Laws 1921 (2nd Ex. Sess.), p. 19.] As the original numbering was retained in the amendatory act, that will be used in referring to the sections, whether amended or not.

The pertinent portions of Sections 30 and 33 are as follows:

"Sec 30. If any person who has the qualifications by this article to entitle him to register as a voter in such city shall be absent therefrom at a distance of more than fifty miles . during all of the days appointed for registration prior to any election at which he desires to vote, he may file his application in the office of said election commissioners to have his name registered in the precinct in which he resides. Such application shall be filed as aforesaid not later than the fourteenth day preceding said election and be verified by his affidavit and shall show that he has qualifications required of a voter by this article, and that he was prevented by said absence, . . . from appearing for registration before the precinct board of registry on all of said registration days, specifying such days and stating at what place or places he was during each of said days, . . . (and) the day upon which he returned after his absence during said days, . . . He shall file at the same time the affidavits of two registered voters of said precinct stating that to their knowledge he is a qualified voter, and setting out therein his qualifications, that he resides in said precinct, and that they believe the truth of his statement in his affidavit as to his reasons for not appearing before said registry board on all of said days of registration, specifying them. . . . Said board shall file all affidavits made as aforesaid and carefully preserve the same. Any voter may make objection to any person being registered upon such application in the manner and form as objections are required to be made before the registry board. The election commissioners shall sit specially to hear such applications on the Monday, Tuesday and Wednesday of the first week prior to said election, between the hours of nine A. M. and twelve A. M. and between two P. M. and ten P. M. Said applicants shall appear in person before the commissioners on one of said days; they may be further examined by the commissioners, under oath, and further testimony taken in favor of or against their applications. All cases shall be heard summarily and decided as soon as heard. If the board shall believe any applicant is entitled to registration according to the provisions of this section he shall be registered as a voter; otherwise his application shall be rejected. If registered, opposite his name on the registry shall be entered the word 'absen...