State ex rel. Kimbrell v. Becker
| Decision Date | 14 January 1922 |
| Citation | 237 S.W. 117,291 Mo. 409 |
| Parties | THE STATE ex rel. ISAAC B. KIMBRELL v. CHARLES U. BECKER, Secretary of State |
| Court | Missouri Supreme Court |
Writ quashed.
Henry S. Conrad, Leslie J. Lyons and Charles H. Thompson for relators.
(1) The relator contends that inasmuch as the Constitutional Amendment provides that the manner of nominating party candidates for delegates to the Constitutional Convention shall be prescribed by the senatorial committee of the respective parties, that provision overrides all statutory provisions touching the particular matter of nominating candidates for delegates. In other words, the manner of selecting party candidates for delegates is specifically provided for in this amendment and all statutory provisions give way to it. Laws 1921, 712. The particular clause upon which we base our contention is the one providing that the candidates of each political party for delegates from a senatorial district shall be nominated in such manner as may be prescribed by the senatorial committee of the respective parties. (2) The senatorial committee in Jackson County is the chairman of the county committee. There are no other provisions except those found in said Section 4848 specifying who shall constitute the senatorial committee, and there are no provisions imposing any specific duties upon such senatorial committee. Section 4848 specifically provides that the chairman of the county committee shall become a member of the party . . . senatorial . . . committee of the district of which his county is a part. No other member or members of the county committee is clothed with authority to act as a senatorial committee. We are unable to find in the statutes any duty imposed upon the senatorial committee specifically. The first duty that it has ever been given by legislative or constitutional enactment is the provision contained in the constitutional amendment involved here. The question reverts therefore, to the issues as to whether or not under the provisions of this section of the statute Mr. Beardsley was in fact the senatorial committee, and whether he was authorized to act in accordance with the mandate of the constitutional provision. (3) In law, in legislative bodies in societies and in corporations, a committee consists of one or more persons. It follows, therefore, that there can be no objection urged on the score that a committee cannot be one individual. 12 C. J. 150. (4) It is also true, as a matter of law, that where no specific number of persons are referred to as constituting a committee, and in a situation such as we have here, if one member of the Committee is duly appointed acting and functioning as contemplated by the legislative act or constitutional mandate, then, and in that event, such single individual should be permitted to act and discharge the duties imposed. (5) The court will observe that the provisions of Section 4848 are general and apply to the entire State. It is perfectly apparent that the Legislature had in mind specifically Jackson County. The very next clause of the section provides that if any congressional district shall consist wholly of one county, in such district the county committee shall constitute the congressional committee of such district. Jackson County is the only county in the State that meets that situation; therefore, the Legislature had Jackson County in contemplation. The Legislature must also, of necessity, have known that Jackson County has and has had for many years two senatorial districts. It cannot be said, therefore, that the language of the statute, awkward as it may be was not deliberately used. In view of this situation, the Legislature was satisfied to entrust the work of the senatorial committee, whatever it might be, with the chairman of the county committee. (6) It is also perfectly clear that inasmuch as the constitutional amendment specifically provides that the manner of nominating candidates for delegates to the Constitutional Convention shall be prescribed by the senatorial committee, no other method of determining the manner of nominating candidates can be substituted. (7) The county committee is not authorized to act as a senatorial committee. There is no provision any where in the statute directly or indirectly authorizing the county committee to act as a senatorial committee.
Jesse W. Barrett, Attorney-General, for respondent; Platt & Marks and Clinton A. Welsch of counsel.
(1) Before relators are entitled to the issuance of a writ of mandamus it is necessary for them to show that they have a direct and personal interest in the matter involved. State ex rel. v. Smith, 104 Mo. 661. Relators must have a clear legal right to the thing demanded, and the burden is on relators to maintain the mandamus proceedings. State ex rel. v. Stone, 269 Mo. 334; State ex rel. v. Hudson, 226 Mo. 239. (2) The certificates presented for filing by relators were not "executed with the formalities prescribed for the execution of an instrument affecting real estate," as is prescribed by Sec. 4802 R. S. 1919. (a) They are in no way acknowledged, attested or authenticated. This alone, it would appear, justified the refusal on the part of respondent. State ex rel. v. Lesueur, 103 Mo. 253, and State ex rel. v. Lesueur, 136 Mo. 452, cited in Atkinson v. Lay, 115 Mo. 538, and Rollins v. McKinney, 157 Mo. 656; Secs. 4802, 4823, R. S. 1919; State ex rel. Punch v. Kortjohn, 246 Mo. 34. (b) The certificates presented by relators for filing do not comply with Sec. 4803, R. S. 1919, by setting forth the residence and the occupation of the relators and the office for which the relators were nominated, nor do the certificates give the residence of the signers thereof. (c) The certificate rejected was not signed by any member or officer of the senatorial committee or any other committee. A reading of the amendment authorizing the holding of the convention would make it appear that the senatorial committee should make the certificate. Sec. 4803, R. S. 1919. (3) Relator should have filed objections to the certificates of nomination of Paul S. Conwell and Halbert H. McCluer, and failing to do that within three days after the filing of same, they are now precluded from doing so. Sec. 4817, R. S. 1919; State ex rel. Farris v. Roach, 246 Mo. 56. The method pointed out by Section 4817 is exclusive. 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. (4) Jackson County is not "a part" of any senatorial district. It forms the whole of two senatorial districts and therefore the provision of Section 4848, R. S. 1919, providing a chairman of the county committee shall become "a member of the party senatorial committee of the district of which his county is a part" has no application. Conceding the utmost, Mr. Beardsley as county chairman became "a member of the senatorial committee of the district of which his county is a part," which means that he and others were members of a senatorial committee, but this construction is so strained that it must be discarded because Jackson County is not a part of any senatorial district. (4) Where a senatorial district is situated entirely within a county or constitutes only a part of a county, its affairs have by a custom which has been followed ever since the passage of the primary law been administered by the members of the county central committee from the wards and townships or parts of wards and townships constituting the senatorial districts as the senatorial committee. This custom is not in violation of any provision of the statute, but is in perfect harmony therewith, and is evidently exactly what it was contemplated would and should be done. (5) The proceedings instituted by relators herein are, in effect, an attempt to settle a factional difference between factions in the Republican party in Kansas City, and existing in said Republican County Committee, and an effort, to litigate an election contest by mandamus in this court, which does not have original jurisdiction to hear and determine by mandamus or any other manner except by an appeal in the proper case from the circuit court, or from the decision of the Secretary of State after he has acted upon objections timely filed to a certificate of nomination as provided for in Section 4817, R. S. 1919, where the parties whose interests are to be affected may be made parties to the action. State ex rel. v. Miles, 210 Mo. 127, 184. (6) The two alleged certificates deposited with the respondent by the relators herein, do not show that the Republican party took any legal steps or acted in a legal manner to make nominations to the office of delegate to the Constitutional Convention. Both fail to show that the Constitution and laws of the State have been complied with in any manner. It appears from the face of said certificates that they are void and of no legal effect. The so-called primary election to which the relators refer, and upon which they base their claims to the right of being classed as nominees to the office of delegate to the convention to revise and amend the Constitution, was held without any official notice having been given. It is admitted that the only notice that was ever given consisted of news items printed in newspapers as the result of diligent work of newspaper reporters. It is elemental that some kind of an official action and notice should have been had and given before an election or primary can be considered valid. All action taken was solely by Mr. Beardsley; no committee acted upon or approved Mr. Beardsley's primary plan.
JAMES T. BLAIR, C. J. Walker, J., concurs; David E. Blair, J concurs in paragraphs 1, 2, 3 and 5 and the result; Graves, J., concurs in a separate opinion in which...
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