State ex rel. Meyer v. Woodbury

• Decision Date: 30 October 1928
• Docket Number: No. 29425.,29425.
• Citation: 10 S.W.2d 524
• Parties: THE STATE EX REL. EVERETT R. MEYER v. CHARLES P. WOODBURY, Judge of Division Two of Jackson County Circuit Court, and THOMAS W. LEE.
• Court: Missouri Supreme Court

10 S.W.2d 524

THE STATE EX REL. EVERETT R. MEYER v. CHARLES P. WOODBURY, Judge of Division Two of Jackson County Circuit Court, and THOMAS W. LEE.

No. 29425.

Supreme Court of Missouri, in Banc.

October 30, 1928.

Prohibition.

RULE MADE ABSOLUTE.

L.A. Laughlin, Samuel A. Dew, Nelson E. Johnson and Raymond G. Barnett for relator.

(1) Under the election law the circuit court has no jurisdiction in registration matters except on appeal from the board of election commissioners and its exercise of original jurisdiction in such cases is in excess of it authority. (2) Applicant to circuit court to be placed on registration books must first have complied with all preliminary requirements of statutes of registration. Guhman v. Dunaway, 183 Mo. App. 659; Sanders v. Selleck, 165 Mo. App. 392; Bucholz v. Life Ins. Co., 176 Mo. App. 464.

J.M. Fisher for respondents.

(1) The Registration Law of 1921 invoked by relator is ineffective as a limitation upon the broad right of suffrage guaranteed under Sec. 2, Art. 8, of the Constitution as adopted February 26, 1924, for the reason that this statute of 1921 lacks any constitutional authorization. Secs. 2, 5, Art. 8, Constitution, amendment adopted February 26, 1924, Laws 1915, p. 410; 12 C.J. 734; 20 C.J. 81. (2) The Registration Statute of 1921 is unreasonable in its restrictions upon the right of suffrage, and at least in the instances of such unreasonable limitations is unconstitutional. Mills v. Green, 67 Fed. 818; Daggett v. Hudson, 43 Ohio St. 548; State v. Conner, 22 Neb. 265; Attorney-General ex rel. v. Detroit, 78 Mich. 545; Owensboro v. Hickman, 90 Ky. 629; Page v. Allen, 58 Pa. St. 338; Dells v. Kennedy, 49 Wis. 555; White v. Multnomah Co., 13 Ore. 317. (3) Since it is contended that the Board of Election Commissioners is a purely statutory creature without any common law powers, and therefore without any power to put a name upon the register except in exact compliance with the constitutionally unauthorized and unreasonable Statute of 1921, an application to the Board of Election Commissioners to do something it was not authorized to do was an unnecessary condition of an application direct to the circuit court. The court has an existence independent of the Registration Statute and has the power to act in the protection of the right of suffrage, the provisions of the constitutionally unauthorized and unreasonable Registration Law to the contrary notwithstanding.

WHITE, C.J.

On October 9, 1928, relator filed in this court his petition asking for a writ of prohibition to prevent Respondent Judge Woodbury from ordering the Board of Election Commissioners of Kansas City to place the name of Respondent Lee upon the registration books of the Sixteenth Precinct of the Eighth Ward of that city.

Upon this petition a preliminary rule was ordered. On the same day respondents, waiving the issuance and service of notice, filed in this court their motion to dismiss the petition of the relator, and consented that the whole matter be determined upon said motion.

The petition of relator, Everett R. Meyer, alleges that he is candidate for the office of Representative in the General Assembly of Missouri from the Tenth District of Jackson County, which includes the said precinct.

Attached to relator's petition is a copy of the petition of Respondent Thomas W. Lee, filed in the Circuit Court of Jackson County, in which Lee alleges that he was a duly qualified voter of Kansas City and resided in the Sixteenth Precinct of the Eighth Ward of said city. That September 24, 1928, the same being the first registration day for the general election to be held November 6, 1928, he was present in Kansas City during the hours provided by law for registry in said precinct, but made no application to be registered; that during the three remaining days for registration he was outside the limits of Kansas City on business; that he had made no application to the Board of Registry of said precinct, nor to the Board of Election Commissioners of Kansas City to be registered as a qualified voter. The prayer of the petition is for an order directing the Board of Election Commissioners to place forthwith his name on the registry as a qualified voter.

The record filed with relator's petition shows that October 8, 1928, he filed a motion in the cause in Judge Woodbury's court to dismiss the proceeding of Lee, which motion was overruled.

Certain facts stated in Lee's petition, filed in the circuit court, must be taken as true:

He was a qualified voter in the Sixteenth Precinct of the Eighth Ward of Kansas City.

He was in the city on the first registration day, September 24, 1928, and out of the city the following three registration days.

There is no allegation that he was out of the city at any other time. Those days occurred in the sixth week before election day. We may presume, therefore, that he was in the city at all times thereafter.

I. The allegation of Lee's petition in the circuit court is that he made no application "to the precinct Board of Registry of the said precinct to be registered as a qualified voter, nor has he made such application to the Board of Election Mandamus. Commissioners of Kansas City."

In effect he boldly says that he had a right to register without compliance or attempted compliance with the registration laws.

He does not classify his cause, nor name the particular proceeding which he instituted in the circuit court. In effect it is a petition for a writ of mandamus. No other name can be attached to it, for he asks a peremptory order directing the Board of Election Commissioners to register his name as a qualified voter.

Section 23, Article VI, of the Constitution, gives a circuit court "superintending control over all inferior tribunals," which no doubt includes this Board of Election Commissioners. That superintending control can be exercised by mandamus only when such board fails or refuses to perform some ministerial act which its clear duty requires it to perform. The circuit court cannot by mandamus compel such board to act in a matter where the latter is vested with discretion. [State ex rel. v. Bolte, 151 Mo. 362; State ex rel. v. City of Willow Springs, 208 Mo. App. l.c. 4; State ex rel. v. Fort, 180 Mo. l.c. 109; 38 C.J. 659.]

Section 22 of the Acts of 1921, relating to registration in cities of 100,000 inhabitants or over (Laws 1921, pp. 341-4), provides that a general registration by the Board of Registry shall be had on Monday, Tuesday, Wednesday and Thursday of the sixth week prior to the election. It provides the method of an application to register, and the qualification of the applicant.

Section 27 of the act provides that on four days of the following week the board shall sit and revise the lists.

Section 30 of the act provides for the registration of those who were unable to register on the regular registration days by reason of sickness or absence from the State. Three days are set apart for the purpose, Monday, Tuesday and Wednesday prior to election day. The absentees and disabled have all the time from the registration days until the Monday, Tuesday and Wednesday before election to present their application to register. From these statutory provisions it is plain that the Board of Registry has discretion to pass upon the qualifications of voters applying to register, discretion to revise the list of registered voters so as to exclude those not qualified, discretion to determine the facts which would enable one who has failed to register on the regular registration days to register on those last two days.

Thus the circuit court has no jurisdiction to control by mandamus such discretionary action. The Legislature, however, has provided a method for review of any action of the board. Section 33 of the Act of 1921 provides that in all cases where a person is denied registration, or his name is stricken from the list, an appeal shall be allowed to the circuit court. That statute affords an effective remedy for anyone who has attempted to comply with the law and has been denied the right to register. This remedy is exclusive so far as Lee's case is concerned.

Lee has not even attempted to comply with the law. He has not applied to the board to register; it has not refused to register him. He states no cause of action, even if the circuit court had jurisdiction of his case.

II. Respondent Lee, however, bases his right to be registered on the assertion that the Act of 1921 is unconstitutional. Certain amendments to the Constitution relating Act of 1921: to franchise and elections were adopted in 1924. Constitutional. Sections 2 and 5, of Article VIII, were amended to read as follows:

"Sec. 2. Qualifications of voters. All citizens of the United States, including occupants of soldiers' and sailors' homes, over the age of twenty-one years who have resided in this State one year, and in the county, city or town sixty days immediately preceding the election at which they offer to vote, and no other person, shall be entitled to vote at all elections by the...