State ex rel. Hartly v. Gideon

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 745,225 Mo.App. 459
• Parties: STATE OF MISSOURI AT THE RELATION OF RALPH HARTLEY, RELATOR, v. ROBERT L. GIDEON, JUDGE OF CHRISTIAN COUNTY CIRCUIT COURT, AND JOHN WARD, CLERK OF THE CHRISTIAN COUNTY COURT, RESPONDENTS
• Court: Missouri Court of Appeals

40 S.W.2d 745

225 Mo.App. 459

STATE OF MISSOURI AT THE RELATION OF RALPH HARTLEY, RELATOR, v. ROBERT L. GIDEON, JUDGE OF CHRISTIAN COUNTY CIRCUIT COURT, AND JOHN WARD, CLERK OF THE CHRISTIAN COUNTY COURT, RESPONDENTS

Court of Appeals of Missouri, Springfield

July 3, 1931

Original Proceeding in Prohibition.

Writ made permanent.

Moore & Moore and Purd Hays for relator.

(1) All the judicial acts of John Ward, County Clerk, ordered by the Circuit Court or Judge not in term time, as in this case, is an abuse of the judicial power by a court, although within its jurisdiction is sometimes treated as extra-jurisdictional, and Prohibition will lie where there is no adequate remedy at law. State ex rel. v. Burney, 186 S.W. 23; State ex rel. v. Cline, 207 S.W. 496; State ex rel. v. Sale, 188 Mo. 493. Under the above authorities the Circuit Court cannot order the County Clerk Ward, to take any action of any kind by way of obtaining the ballots from the City Clerk of Ozark, to open and examine said ballots of the said City of Ozark, Missouri. If any such order is made or entertained by any person or officer, it must be by the Circuit Clerk who alone is authorized to issue notices, summons, writs, and process out of the Circuit Court. (2) Under the Statutes defining the writ of Prohibition and its use seem clear and in point in this case. Section 1609, Revised Statutes 1929; State ex rel. Aiken v. Buckner, 203 S.W. 243. This being a case at law, an election contest, the acts of all officers, the trial judge and all the court's agencies must be kept within the pale of the law, and when not so, the Writ of Prohibition should be invoked and as to all such acts should be made permanent.

Omer Brown for respondents.

(1) The circuit court has jurisdiction of all contests for elections. Constitution of Missouri, Art. 8, Sec. 8; Section 10339, Revised Statutes 1929. Court has jurisdiction in contested elections for officers of the cities of the fourth class. Owsley v. Powell, 12 S.W.2d 102; State ex rel Goldman v. Hiller, 278 S.W. 708. Duties of the county clerk in opening and counting ballots by an order or commission directed to him was wholly ministerial, and cannot be controlled by writ of prohibition. State ex rel. Kirchmer v. McElhinney, 258 S.W. 1020; State ex rel. Phillips v. Barton, 254 S.W. 85. Section 10354 says that the county clerk shall be the person to be designated by a writ from the clerk to count the votes that "relates to the office in contest." Revised Statutes 1929, Section 10354. (2) The section relied upon by the relator, who contends that the City Council must have the jurisdiction and that the Clerk must count the votes is unconstitutional for the reason that it is in conflict with the Constitution of Missouri as well as the whole election contest law scheme. Said section being Section 6964, Revised Statutes 1929. Constitution, Art 8, Sec. 8; Sec. 10339, Revised Statutes 1929. The above section provides no way for the procedure of a contest, and it seems to have been an after-thought of some legislator, and is void for uncertainty.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

--At a city election held in the City of Ozark, in Christian County, the relator on the face of the ballots, was elected alderman from the third ward of the city, which is incorporated as a city of the fourth class. Thereafter Ben McDaniel filed in the Circuit Court of Christian County a contest claiming that he and not relator was elected alderman in the Third Ward of the city. Afterward the respondent, Robert L. Gideon, Judge of the Circuit Court of Christian County, assumed jurisdiction of the election contest and issued an order to the Clerk of his court directing him to issue an order to the Clerk of the County Court of Christian County, directing said clerk of the County Court to secure from the Clerk of the City of Ozark, the ballots cast for alderman in the Third Ward of the city, and to call to his assistance such assistants as should be necessary and in the presence of counsel for both parties, after having sworn all parties to secrecy, to proceed to open, count, compare, and exhibit ballots cast in such election in such a manner as to not disclose how any person voted for any candidate except by reading the face of the ballot, etc. This the clerk of the county court attempted to do. The relator then filed in this court a petition for writ of prohibition seeking to prohibit the Judge of the Circuit Court from proceeding on the ground that the circuit court did not have jurisdiction of an election contest in a city election in cities of the fourth class and contended that such contest must be tried by the board of aldermen of such city.

Relator also contends that in any event the Judge of the Circuit Court was going beyond his jurisdiction when he directed the Clerk of his court to issue an order to the Clerk of the County Court directing him to secure possession of the ballots from the City Clerk who was the legal custodian of the ballots and then proceed to open and recount them.

The questions presented to us are two: First, has the Circuit Court jurisdiction of an election contest for aldermen in a City of the Fourth Class. We shall consider this question first and allude to the other question later.

Relator relies upon Section 6964, Revised Statutes 1929, to sustain his contention that the Board of Aldermen and not the Circuit Court has jurisdiction to determine a contest between two persons for the office of alderman of a city of the Fourth Class. The latter part of this section upon which relator relies is as follows: "Whenever there shall be a tie in an election of an alderman, the matter shall be determined by the Board of Alderman; so also in case the election of an alderman be contested. [Italics are ours.] It is the italicized part of this section that appellant relies upon to sustain his position that a contest like this must be tried and determined by the Board of Aldermen in a City of the Fourth Class. This provision of our statute has been on the books since 1895 but has never been construed or referred to in any case in Missouri as far as we are informed. The Constitution of the State, Article VIII, Sec. 8, is as follows: "The trial and determination of contested election of all public officers, whether state, judicial municipal or local, except governor and lieutenant-governor, shall be by a court of law or by one or more of the judges thereof. The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried and regulate the manner of trial and all matters incident thereto. . . ." ...