State ex rel. Farris v. Roach
| Decision Date | 26 November 1912 |
| Citation | 150 S.W. 1073,246 Mo. 56 |
| Parties | THE STATE ex rel. FRANK H. FARRIS v. CORNELIUS ROACH, Secretary of State |
| Court | Missouri Supreme Court |
Writ allowed.
Bland Crites & Murphy for relator.
(1) Our Constitution means that if a Senator or Representative desires another office during his term, he must procure it by the votes of the people -- be elected; that he cannot exert the influence of his office by the passage of a law, or otherwise, to be appointed to an office. And even if this section of the Constitution applies it is not applicable to your relator, because, if elected, his office does not begin until after the expiration of the term to which he was elected, to-wit, "the second Monday in January next." State ex rel. v. Childs, 63 Mich. 153. Although one elected to an office may at the time of the election be politically disqualified from holding the office yet, if such disqualification be removed before the issuance of the certificate and taking possession of the office, he may legally hold it. State v. Van Beek, 87 Iowa 569; Privett v. Bickford, 26 Kan. 52. (2) The Democratic State Committee had no authority to construe the Constitution, to pass on relator's qualifications, or to create a vacancy, nor has the respondent. 165 Ill. 527; State ex rel. v. Crittenden, 164 Mo. 261. (3) A presidential elector is not an officer, as commonly used and understood in the interpretation of the Constitution. Fitzgerald v. Green, 134 U.S. 377. (4) Sec. 5849, R.S 1909, requires objections to a certificate of nomination to be filed in writing with the Secretary of State within three days after it is filed, and if no such objections are filed certificates are valid. The remedy is exclusive, the provisions mandatory, and must be strictly followed. State ex rel. v. O'Donnell, 62 N.J.L. 35; State ex rel. v. Piper, 50 Neb. 40; In re Cowie, 11 N.Y.S. 838; In re Nash, 72 N.Y.S. 1057; Ackerman v. Green, 201 Mo. 231; Priddy v. McKenzie, 205 Mo. 181; Com. Co. v. Spencer, 205 Mo. 105; State ex rel. v. Trust Co., 209 Mo. 472. The delegates in a nominating convention meet for the purpose of selecting and agreeing upon candidates for office to be supported by the party. Such a convention is a deliberative body, and unless it acts arbitrarily, oppressively or fraudulently, its final determination as to candidates, or any other question of which it has jurisdiction, will be followed by the courts. Any other rule would be intolerable, and permit the court to impose upon a party a nominee contrary to the wishes of its members, as finally expressed by their representatives in convention. Phillips v. Gallagher, 76 N.W. 287.
Elliott W. Major, Attorney-General, and Charles G. Revelle, Assistant Attorney-General, for respondent.
Although electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are members of the State Legislatures when acting as electors of Federal Senators, or the people of the States when acting as electors of Representatives in Congress. Congress has never undertaken to interfere with the manner of appointing electors, or to interfere with any mode of appointment prescribed by the Legislature, and that it is entirely proper for the Legislature to prescribe these matters, as well as additional qualifications of electors. In re Green, 134 U.S. 377; McPherson v. Blacker, 146 U.S. 1. The position of elector is an office within the meaning of that term, and as used in our Constitution. Secs. 2753, 2755, R.S. 1909. Sec. 12, Art. 4, State Constitution, provides that "no Senator or Representative shall during the term for which he shall have been elected be appointed to any office under this State." That provision applies to all officers, even city officers, and renders a member of the Legislature ineligible thereto. State ex rel. v. Valle, 41 Mo. 29; Gibbons v. County, 107 Mo. 603. The expression, "during the term for which he shall have been elected," means the time for which he was elected to serve, whether he served the time or not, and a member resigning before the expiration of such time is, under the Constitution, ineligible to hold any office so prohibited. Ellis v. Lennon, 49 N.W. 308; State ex rel. v. Valle, 41 Mo. 29. In the event of relator's success at the November election, his appointment takes place on that day, which is at a time and during the term for which he was elected as Representative. The Federal Constitution provides that electors shall be "appointed," and the fact that the Legislature has adopted the means it has of designating our electors demonstrates that the method so provided is one by appointment, otherwise the Legislature would not be complying with the requirements of the Federal Constitution saying that they shall be appointed. The term "appoint" is used in the same sense in our Constitution, which renders relator ineligible, as it is used in the Federal Constitution. McPherson v. Blacker, 146 U.S. 1; State ex rel. v. New Orleans, 41 La. Ann. 156; State v. Compson, 54 P. 349. The fact that relator's new duties would not directly begin until after the expiration of the term for which he was elected, does not render him eligible. Finklea v. Farish, 160 Ala. 230; Searcy v. Grow, 15 Cal. 117; People v. Leonard, 73 Cal. 230; State v. Clark, 3 Nev. 566; In re Corliss, 11 R. I. 638; State v. Moores, 52 Neb. 786; Taylor v. Sullivan, 45 Minn. 309; People v. Purdy, 47 N.Y.S. 601; Carroll v. Green, 148 Ind. 362; Roane v. Matthews, 75 Miss. 94; Springfield v. Butterfield, 98 Me. 155; 29 Cyc. 1376; State ex rel. v. Breuer, 235 Mo. 240.
OPINION
In Banc.
Mandamus.
-- 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 stated in 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, Missouri, 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.
That in April, 1912, the relator moved from Crawford county to Phelps county, Missouri, where he now resides and is a qualified voter, whereupon, by virtue of Sec. 13 of Art. 4 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.
That on October 3, 1912, seventeen 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:
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