State ex rel. Hayden v. Thomas

• Decision Date: 15 September 1944
• Docket Number: 39279,39280
• Parties: State of Missouri at the Relation of Samuel C. Hayden, Relator, v. Harry L. Thomas, Thomas R. Hunt, Herman M. Langworthy, and William F. Woodruff, as Members of the Board of Election Commissioners of Kansas City, Missouri. John A. Lauck, Relator, v. Thomas R. Hunt et al
• Court: Missouri Supreme Court

182 S.W.2d 584

353 Mo. 332

State of Missouri at the Relation of Samuel C. Hayden, Relator, v. Harry L. Thomas, Thomas R. Hunt, Herman M. Langworthy, and William F. Woodruff, as Members of the Board of Election Commissioners of Kansas City, Missouri.

John A. Lauck, Relator, v. Thomas R. Hunt et al

Nos. 39279, 39280

Supreme Court of Missouri

September 15, 1944

Permanent writ issued.

Lee D. Seelig and Thomas J. Stubbs for relator.

Donald E. Lyons and James T. Britt for respondents.

OPINION

Clark J.

Original proceedings in mandamus to compel respondents, Board of Election Commissioners of Kansas City, to place upon the ballots at the general election to be held on November 7, 1944, as candidates for the office of justice of the peace for the Seventh district of Kaw Township in Jackson County, the name of Samuel C. Hayden as the candidate of the Democratic party and the name of John A. Lauck as the candidate of the Republican party.

Each relator filed a separate petition, but, as the facts are similar and questions of law identical, the cases are consolidated and will be treated in one opinion.

At the general election in November, 1942, Joseph J. Dougherty was elected to the office of justice of the peace for said district for a term of four years. Thereafter he duly qualified and held the office until his death on August 11 1944.

On August 1, 1944, being the first Tuesday in August, under our statutes a general state-wide primary election was held at which candidates were nominated by both the Democratic and Republican parties for offices to be voted on at the ensuing general election. No candidate was nominated at the primary for the office of justice of the peace for said district because there was then no vacancy and the encumbent, Dougherty, had more than two years yet to serve.

A few days after the death of Dougherty a meeting was held by the Jackson County Central Committee of the Democratic party and the name of relator, Hayden, certified to the county clerk as the candidate of that party for justice of the peace of said district to be voted on at the coming general election. A meeting was also held by the Jackson County Central Committee of the Republican party and the name of relator, Lauck, certified to the county clerk as the Republican candidate. It is conceded that these meetings were regularly held; the names of the candidates duly certified; that each candidate possesses the necessary qualifications for the office and has deposited the filing fee and filed the declaration of candidacy required by statutes.

After Dougherty's death one Charles O. Ferguson filed with the county clerk his petition as an independent candidate for justice of the peace under Section 11534, Revised Statutes Missouri 1939. [R.S.A., sec. 11534.] The county clerk certified to the Board of Election Commissioners the names of the three candidates for inclusion on the ballot. Then Ferguson filed with the Board his protest against the inclusion of the name of each relator as the candidate of his respective party, and the Board by resolution sustained the protest.

The case involves a determination of the statutory powers of party central committees. Section numbers hereafter mentioned, unless otherwise designated, refer to sections of the Revised Statutes of 1939 and the corresponding sections of Missouri Revised Statutes Annotated.

Prior to 1941 Section 11538 expressly granted to the central committee power to select party candidates "in case of any vacancy in said nomination, by resignation, death or otherwise," and Section 11562 provided: "Vacancies occurring after the holding of any primary or where no person shall offer himself as a candidate before such primary, shall be filled by the party committee," etc. Section 11538 was amended in 1941 and again in 1943, [Session Acts 1941, p. 354; Session Acts 1943, p. 535] in both instances the wording was changed to read: "in case of any vacancy in said nomination, by resignation or death and not otherwise." The 1941 amendment to Section 11562 [Session Acts 1941, p. 353] changed the wording to read: "Vacancies occurring after the holding of any primary and resulting from the death or resignation, and not otherwise, of the nominee of a party at such primary, shall be filled by the party committee," etc.

It is contended that these amendments, particularly the exclusion from Section 11562 of the words "or where no person shall offer himself as a candidate before such primary," deprive the central committee of the power to fill a vacancy where, as in the instant case, no person offered himself as a candidate of the party at the primary. Undoubtedly the amendments do have that effect as to any office which was to be voted on at the primary and as to which prospective candidates had the opportunity to offer themselves. The amendments may have the further effect, which the general assembly may or may not have intended, to prevent the central committee from filling a vacancy resulting from the death or withdrawal before the primary of all candidates who have filed for a particular office. Apparently, the chief purpose of the amendments was to encourage the selection of candidates by the electors of the party rather than by the party committee. However, it does not follow that the central committee has been deprived of the power to select a party candidate for an office which must be filled at the general election, but which could not have been voted on at the primary. Dougherty's term of office having more than two years to run at his death a vacancy has occurred which the law contemplates shall be filled at the next general election. [State ex rel. Asotsky v. Hicks, 346 Mo. 640, 142 S.W.2d 472.] This vacancy occurred after the primary and could not then have been voted on.

In State ex inf. Barrett v. McClure, 299 Mo. 688, 253 S.W. 743, the facts were that a county treasurer, elected in 1921 for a term of four years, died on August 3, 1922. His widow was appointed by the governor to fill the vacancy "for the unexpired term." The state primary...