State ex rel. Farris v. Roach

• Decision Date: 26 November 1912
• Citation: 246 Mo. 56,150 S.W. 1073
• Parties: STATE ex rel. FARRIS v. ROACH, Secretary of State.
• Court: Missouri Supreme Court

150 S.W. 1073

246 Mo. 56

STATE ex rel. FARRIS v. ROACH, Secretary of State.

Supreme Court of Missouri.

November 26, 1912.

1. ELECTIONS (§ 156)— NOMINATIONS—CERTIFICATES OF NOMINATION.

Under Rev. St. 1909, § 5849, providing that certificates of nomination in apparent conformity with the statute shall be deemed valid, unless objection is made in writing within three days after they are filed, and section 5850, requiring the Secretary of State to certify to clerks of county courts the names of persons nominated for office, as specified in the certificates of nomination filed with him, the duty of the Secretary of State to certify the name of a person to whose certificate of nomination no objections have been filed is purely ministerial.

2. ELECTIONS (§ 147)—NOMINATIONS — CERTIFICATE OF NOMINATION.

Under Rev. St. 1909, §§ 5847, 5848, and 5870, authorizing party committees to fill vacancies in nominations in certain contingencies, and to certify the nominations so made to the Secretary of State, a certificate of nomination by the committee to fill a vacancy within the scope of the power conferred upon such committee supersedes a certificate previously filed; but where the committee exceeds its lawful powers by declaring a vacancy where none exists its certificate to fill such assumed vacancy is invalid, and the first certificate still stands.

3. ELECTIONS (§ 147)—NOMINATIONS—FILLING VACANCIES.

Rev. St. 1909, § 5847, providing that, in case of a vacancy in any nomination by resignation, death, or otherwise, the central committee or a convention called for that purpose may fill such vacancy, section 5848, providing that a majority of all members-elect of the central committee is necessary to fill vacancies, and section 5870, providing that vacancies occurring after the holding of any primary shall be filled by the party committee, only authorize party committees or conventions to fill vacancies actually existing before they act, and do not authorize either a committee or a convention to declare a vacancy, on the ground that a regularly nominated candidate is ineligible.

4. MANDAMUS (§ 172)—NOMINATIONS — OBJECTIONS AND CONTESTS — DETERMINATION BY COURT.

The Secretary of State will be compelled, by mandamus, to certify to county courts the name of a person duly nominated for the office of presidential elector, without any determination of his eligibility for that office, the necessary qualifications for such office, or the jurisdiction of the court to determine such eligibility or qualifications; there being no statute prescribing the qualifications of candidates for office, and such certification not being the final act recognizing his title to office, but a mere step towards that result.

In Banc. Original mandamus proceeding by the State, on the relation of Frank H. Farris, against Cornelius Roach, Secretary of State. Peremptory writ issued.

This is an original suit by way of mandamus to compel the Secretary of State to certify relator's name as a nominee for presidential elector at large on the Democratic ticket, to which he was nominated by the Democratic state convention on February 20, 1912. A peremptory writ of mandamus was issued by the court on the 16th day of October, 1912. The writ was awarded on that day to meet an emergency. It was announced by the court that for want of time no opinion had been prepared, but that one would be filed later. This opinion, therefore, is to be read as if delivered on the date of the issuance of the writ.

The facts, as shown by the petition, are that the relator was elected to the state Legislature from Crawford county, at the November election, 1910, for a term of two years; that he qualified as such, took the oath of office, and participated in the deliberations of the last General Assembly, which adjourned in March, 1911; that on February 20, 1912, the Democratic party held a state convention at Joplin, Mo., duly and regularly called by the state committee of that party, whereat the relator was unanimously nominated as a nominee and candidate of that party, to which he belonged and still belongs, for presidential elector at large to be voted for at the general election to be held in November, 1912. His nomination, with others, was regularly and properly certified to and filed in the office of respondent as and within the time required by law. The validity of relator's nomination or of his certificate is not questioned, and no objections were filed thereto.

In April, 1912, the relator moved from Crawford county to Phelps county, Mo., where he now resides and is a qualified voter; whereupon, by virtue of section 5 of article 14 of the state Constitution, the office of representative from Crawford county became vacant. Immediately after his removal to Phelps county, relator tendered his resignation to the Governor, by whom it was accepted, since which time relator has not held any office of any kind.

On October 3, 1912, 17 members of the Democratic state committee, a quorum and a majority, held a meeting in St. Louis, at which meeting, without notice to the relator, or giving him an opportunity to be heard, he was, by a unanimous vote, removed from the Democratic ticket as its candidate for presidential elector, the place declared vacant, and one George W. See, by unanimous vote, named to fill such vacancy. All of these acts were certified to the respondent, and this is the basis of his refusal to certify the relator's name as the Democratic nominee for presidential elector. The resolution removing Mr. Farris and declaring the office vacant, as certified to the respondent Secretary of State, is as follows: "Whereas, the Constitution of the United States, by section one (1) of article two (2) thereof, provides that each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress; and whereas, it is provided by section twelve (12) of article four (4) of the Constitution of the state of Missouri `that no Senator or Representative shall, during the term for which he shall have been elected, be appointed to any office under the state or any municipality thereof;' and whereas, Hon. Frank H. Farris was, at the general election held in the state of Missouri on the eighth day of November, nineteen hundred and ten, duly elected representative from Crawford county, in the state of Missouri, for a term of two years; that the said Frank H. Farris thereafter qualified as such representative, and took the oath of office, and served in that capacity; and whereas, at the state convention of the Democratic party in the state of Missouri, on February twentieth, nineteen hundred and twelve, the said convention named the said Frank H. Farris as a presidential elector at large from the state of Missouri; and whereas, this committee finds that the said Frank H. Farris is disqualified to serve as presidential elector at large from the state of Missouri by reason of his election as representative in the General Assembly, as aforesaid, and by reason thereof a vacancy exists in the said office of presidential elector at large from the state of Missouri on the Democratic ticket."

The respondent demurred to the petition on the following grounds: "(1) Said petition fails to state facts sufficient to entitle relator to the relief prayed for, or to authorize the issuance of the writ of mandamus prayed for therein. (2) Said petition and the matters and things therein stated are not sufficient in law or equity to entitle relator to the relief sought. (3) The petition discloses upon its face that, under the Constitution of the state of Missouri and the Constitution and laws of the United States, relator is ineligible to appointment to the position of national elector; and that respondent is warranted and required to refuse to certify his name as a candidate on the Democratic ticket, or any other ticket, for the office or position of national elector."

Bland, Crites & Murphy, of Rolla, for the relator. Elliott W. Major, Atty. Gen., and Charles G. Revelle, Asst. Atty. Gen., for respondent.

FERRISS, J. (after stating the facts as above).

1. By the provisions of the statute (sections 5849 and 5850, R. S. 1909), when the certificate of nomination by the convention held on February 20, 1912, was filed with respondent, and no objections filed thereto, it became his duty to certify the name of relator as such nominee to the proper county officials. Section 5849 provides that all certificates of nomination which are in apparent conformity with the provisions of law shall be deemed to be valid, unless objections are filed thereto within three days. In the absence of such objections, the validity of such nomination stands unquestioned, and the duty of the Secretary of State to certify same is purely ministerial. State v. Falley, 8 N. D. 90, 76 N. W. 996; State ex rel. v. Falley, 9 N. D. 450, 83 N. W. 860; Chapman v. Miller, 52 Ohio St. 166, 39 N. E. 24; People v. Dist. Court, 18 Colo. 26, 31 Pac. 339. Subsequently, on October 3, 1912, and before respondent had certified out the nomination made by the convention, a second certificate was filed with him by the Democratic central committee of the name of Geo. W. See, to fill an alleged vacancy caused by the alleged disqualification of relator, and his consequent removal as a candidate by the committee. The respondent had then before him two certificates of nomination for the same office. He decided that the one last filed by the committee superseded the former certificate, and was about to certify same when this action was instituted.

The law (sections 5847, 5848, 5870, R. S. 1909) authorizes the central committee to fill vacancies in certain named contingencies, and to certify nominations so made to the Secretary of State; and it is obvious that if the committee, in certifying a nomination to fill a...