State ex rel. Hay et al. v. Flynn

• Decision Date: 04 February 1941
• Docket Number: No. 25798.,25798.
• Citation: 147 S.W.2d 210
• Parties: STATE OF MISSOURI EX REL. CHARLES M. HAY, CLAXTON E. ALLEN, HAROLD T. JOLLEY ET AL., ELECTION COMMISSIONERS WITHIN AND FOR THE CITY OF ST. LOUIS, MISSOURI, RELATORS, v. WILLIAM B. FLYNN, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, RESPONDENTS.
• Court: Missouri Court of Appeals

147 S.W.2d 210

STATE OF MISSOURI EX REL. CHARLES M. HAY, CLAXTON E. ALLEN, HAROLD T. JOLLEY ET AL., ELECTION COMMISSIONERS WITHIN AND FOR THE CITY OF ST. LOUIS, MISSOURI, RELATORS, v. WILLIAM B. FLYNN, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, RESPONDENTS.

No. 25798.

St. Louis Court of Appeals, Missouri.

Opinion filed February 4, 1941.

Original proceeding on Certiorari to quash opinion of St. Louis Circuit Court.

RECORD QUASHED.

Frank P. Aschemeyer and Sylvan Agatstein for respondent.

Chomeau v. Roth, 72 S.W. (2d) 997; Nance v. Kearbey, 251 Mo. 374; State ex rel. Ellis v. Brown, 33 S.W. (2d) 104; State ex rel. Meyer v. Woodbury, 321 Mo. 275.

Roscoe Anderson, Isaac C. Orr, Fred Eppenberger and Carroll Donohue for relators.

(1) State ex rel. Woodmansee v. Ridge, 123 S.W. (2d) 20; State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W. (2d) 104, 109; State ex rel. Shartel v. Westhues (Mo.), 9 S.W. (2d) 612; State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 526, 527; State ex rel. v. Dobson, 135 Mo. 19, 36 S.W. 238; 9 S.W. (2d) 612, 617. Moreover the right of appeal is purely statutory. Magee v. Bank & Trust Co., 339 Mo. 559, 560. And Section 1018, R.S. Mo. 1929, does not apply to summary procedure such as provided by Section 27 of the Laws of 1937, pages 235-278. In Re Mississippi, etc., Drainage District v. Ackley, 270 Mo. 157, 173. (2) The question is of vital importance and this court will decide it even though the election is over. State ex rel. Conran v. Duncan (Mo.), 63 S.W. (2d) 137, 138. (3) The provision of Section 15 of the Act for closing registration fifteen days before the election is reasonable. State ex rel. Woodmansee v. Ridge, 123 S.W. (2d) 20; State ex rel. Faust v. Thomas, 313 Mo. 160, l.c. 164.

ANDERSON, J.

This is an original proceeding on certiorari wherein relator is seeking to have quashed the record of the Circuit Court of the City of St. Louis, in a cause entitled "In the Matter of Mrs. Lee Fleckenstein," numbered 2999 Miscellaneous. Relators are the election commissioners within and for the City of St. Louis, Missouri, and respondent is the duly elected, qualified, and acting Judge of the Circuit Court of the City of St. Louis, before whom said cause was tried. The record sought to be quashed is an appeal by Mrs. Fleckenstein from the action of relators, acting in their official capacity, denying an application made by her on October 28, 1940, to register as a qualified voter for the election of November 5, 1940. The Circuit Court found in her favor and entered its order directing relators to forthwith take such steps as were necessary to enable Mrs. Fleckenstein to vote on November 5, 1940, in Ward 22, Precinct 1, of said City of St. Louis. A motion for new trial was filed by relators on November 1, 1940, which motion was by the court overruled. Thereupon a petition for certiorari was filed in this court, which was thereafter sustained, and our writ duly issued.

There is no contention in this court by relators that Mrs. Fleckenstein did not possess the qualifications necessary to register and vote at said election if she had presented herself for registration in due season, but relators say that since her request was made on October 28, 1940, less than fifteen days preceding the November 5th election, they had no power or authority to permit her to register for said election, and that the Circuit Court had no jurisdiction to enter its order compelling them to place her name upon the registration books. A determination of the issue presented involves a construction of the applicable registration laws, Laws 1937, pages 235, 278.

Section 15 of said Act provides:

"Registration for any election shall be closed at five o'clock P.M. on the 15th day preceding the election except Municipal elections when it shall close forty (40) days prior to April election, and no voter shall be thereafter registered prior to said election, except by order of the Circuit Court. No voter who is duly registered in compliance with the provisions of this act shall be required to register again so long as he continues to reside at the address from which he is registered, unless his registration be cancelled as provided for in this Act."

Section 27 of said Act provides:

"In all cases where any person is denied registration who makes application to register within the time fixed by this Act, or whose name has been striken (stricken) from the register by the Board, an appeal shall be allowed to the Circuit Court. No formal pleading shall be required, but it shall be sufficient for such person to present to the Court an application verified by affidavit and showing service thereof on the Board, setting out that he has been denied the right to register by said Board, or that his name has been stricken from the register, and the date of same, as the case may be, and such other information showing his qualifications as a voter in the precinct in which he claims a right to register. Said application shall first be presented "to the Board which shall thereupon acknowledge service thereof in writing. Provided further that said appeal to the Circuit Court must be taken within three days after said person has been denied registration or his name stricken from the register by the Board. The Court shall hear said application forthwith. Evidence may be introduced for and against said application. Each case shall be disposed of forthwith and the Clerk of said Court shall enter upon his records the disposition of said application. In the event the Court shall sustain said application, the Court shall forthwith notify the Board of its action, and upon the applicant appearing before the Board, the Board shall forthwith cause the applicant to be registered and note the fact that said person was registered by order of the Court. No person who is permitted to register by order of the Circuit Court shall be protected by such order in case he should be challenged, or prosecuted for false registration or false voting. All appeals shall be heard in the Circuit within which such city is located."

Relator's position is that the provisions of Section 15, supra, which require that registration shall be closed fifteen days preceding a general election, and forty days prior to a municipal election, are mandatory, while respondent contends the provisions are merely directory. There is no absolute test by which the question here presented may be resolved, but in passing upon the matter, the prime object is to ascertain the legislative intent from a consideration of the statute as a whole, bearing in mind its object and the consequences that would result from construing it one way or the other. [State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W. (2d) 104.] The primary purpose of registration laws is to prevent fraudulent abuse of the franchise, by providing in advance of elections an authentic list of the qualified voters. To guard against fraud, the General Assembly has incorporated a great many provisions in the Act under review, which throw light on the question of the legislative intent here presented.

Section 19 of the Act provides that immediately after the close of registration before each election preceding which a canvass is required, the board shall prepare verification lists for each precinct, and a canvass shall be made before each general state and county election, each state and county primary and primary city election.

Section 20 lays down the rules with respect to the canvass. In this canvass the verification lists are used, and the names of persons listed therein and not found to reside at the dwelling place designated therein are checked.

Section 21 provides for notices to be thereafter sent to the persons named in the lists, whose names have been checked, requiring them to appear before the Board of Election Commissioners upon the Wednesday, Thursday, Friday, or Saturday of the week following the closing of registration to show cause why their names should not be erased from such registry.

Section 22 provides that upon demand, persons connected with the ownership or management of any lodging house, boarding house, inn, bath house, hotel, or tavern shall, not less than three nor more than five days before every election, file a sworn statement setting forth the name and other information concerning every person residing in his establishment.

Section 24 provides that no registration shall be cancelled without notifying the voter by mail that he has not been found to reside at his registered address upon investigation and that unless he personally appear and show cause why his resignation should not be cancelled, it will be cancelled. This notice...