State ex rel. Murphy v. Barrett
| Decision Date | 13 June 1944 |
| Docket Number | 39129 |
| Citation | 181 S.W.2d 493,352 Mo. 1130 |
| Parties | State ex rel. George M. Murphy, Relator, v. Jesse W. Barrett et al., Constituting the Board of Election Commissioners of the City of St. Louis, Missouri |
| Court | Missouri Supreme Court |
Rehearing Denied July 3, 1944.
Peremptory writ issued.
Samuel H. Liberman for relator; Russell L. Dearmont, Emmett Golden William L. Igoe, Leo Lyng and John J. Nangle of counsel.
(1) A citizen and qualified voter may invoke the writ of mandamus to compel election officials to carry out their duties in the manner required by law. State ex rel. Faust v Thomas, 282 S.W. 34. (2) Ordinances which are in conflict with the charter, and which are not in harmony with the state law upon the same subject, are invalid. Wood v. Kansas City, 162 Mo. 303, 62 S.W. 433; Asphalt & Granitoid Co. v. Hauessler, 201 Mo. 400, 100 S.W. 14; Bardenheier Wine & Liquor Co. v. St. Louis, 345 Mo. 637, 135 S.W.2d 345; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Ex parte Tarling, 241 S.W. 929; Sec. 7442, R.S. 1939. (3) Section 38 of Ordinance 42,880 contravenes Section 5 of Article VII of the City Charter. Art. VII, Sec. 5, Art. II, Secs. 7, 9, Art. IV, Sec. 1, Charter of St. Louis. (4) Section 38 of Ordinance 42,880 is in conflict with Article 7, Chapter 76, R.S. 1939, particularly Sections 11594, 11595, 11602, 11603 and 11631. In re Graves, 325 Mo. 888, 30 S.D. (2d) 149; State ex rel. Brown v. McMillan, 108 Mo. 153; Gaston v. Lamkin, 115 Mo. 20; City of Tarkio v. Seibert, 116 Mo. 415. (5) Section 37 of Ordinance 42,880 is in conflict with Article 5, Chapter 76, R.S. 1939, particularly Sections 11557 and 11560. (6) Sections 37 and 38 are in conflict with the recently enacted soldiers' vote bill, Senate Bill 6, 62nd General Assembly, Extra Session. (7) Authority to enact the ordinance is not granted by Sections 11775 and 11776, R.S. 1939. Brown v. State, 323 Mo. 138, 19 S.W.2d 12; Turner v. Mo. Kan. & Texas R. Co., 346 Mo. 22, 142 S.W.2d 455; State ex rel. Major v. Ryan, 232 Mo. 77, 133 S.W. 8.
Joseph F. Holland, City Counselor, H. A. Hamilton, George L. Stemmler and Charles J. Dolan, Associate City Counselors, for respondents.
(1) The Charter of St. Louis contains specific authority for the enactment of ordinances governing election in the City of St. Louis whenever it may be done in harmony with the Constitution and laws of Missouri. Charter of St. Louis, Art. II, Sec. 9. (2) The laws of Missouri by a specific enabling act authorize and empower the City of St. Louis to provide for and regulate all elections to offices of and under said city and for the nomination of candidates for such offices. R.S. 1939, sec. 11775. (3) The recent act of the Legislature providing for soldiers' vote does not include the election of city officers, but the ordinance of St. Louis No. 42921, approved May 12, 1944, does provide therefor.
Leedy, J. All concur except Gantt, J., absent.
This is an original proceeding in mandamus instituted by relator, as a resident, citizen and qualified voter of the City of St. Louis, against respondents, as members of and constituting the Board of Election Commissioners of said city. Its purpose is to compel certain affirmative action on the part of respondents with respect to conducting the general state election in November of this year, and the intervening August primary, [1] at which elections, respectively, nominees of the several political parties for the office of Mayor of the City of St. Louis (unexpired term) are to be chosen, and an existing vacancy in said office filled.
The issues are framed upon the petition and the demurrer thereto. The case turns on the question of the validity of Secs. 37 and 38 of Ordinance No. 42880 of the City of St. Louis, which was passed April 5, 1944, with an emergency clause, and approved April 6, 1944.
The vacancy in question was created when, on August 1, 1943, the late lamented Mayor of the City of St. Louis, Hon. William Dee Becker, perished in an aeroplane accident. The manner of filling vacancies in such office is prescribed by Art. VII, Sec. 5 of the charter of said city, as follows:
(Emphasis ours.)
The parties are in accord, and we likewise agree, that under the italicized provision above, and the facts with reference to the date of the first general city election held fifty days or more after the vacancy occurred (which will be in April, 1945), said vacancy is to be filled at the general state election to be held in November, next.
The title of Ordinance No. 42880 is as follows:
"An Ordinance providing for the nomination of all candidates for elective city offices to be filled at general state elections; providing for the nomination of candidates by political parties by direct vote of electors at a primary election conducted by the regular election officers of and at the expense of the City of St. Louis; providing for the separation of the ballots containing the names of candidates for elective city offices from the names of candidates for county, state and national offices at such primary elections and at all general state elections at which such candidates may be voted for; repealing Sections 21 and 22 of the Revised Code of St. Louis, 1936; providing for the nomination by party or ward committees of candidates for elective city offices in which vacancies shall occur after the date set for filing as a candidate in such primary election and fifty days or more prior to such general state election; providing for nominations of candidates to take the place of candidates who shall have died or resigned after being duly nominated, making applicable to this ordinance all penal statutes of the state governing the conduct of elections; and containing a penalty clause, and an emergency clause."
Secs. 37 and 38 of said ordinance read, respectively, as follows:
The question arises as to whether, in instances where the vacancy in the office of Mayor is to be filled "at" a general state election, as provided by Art. VII, Sec. 5 of the Charter, such election is an integral part of the general state election, and, governed by the state laws in relation to that subject; or whether, as respondents contend, the election is merely to be held at the same time as the general state election, but may be held at the same place, although separately conducted, and separate ballots furnished, as the ordinance in question purports to authorize. The challenged provisions of the ordinance are in conflict with the Australian ballot provisions of the state law, one of the cardinal features of which, "under the systems as everywhere adopted," says 18 Am. Jur., Elections, sec. 163, p. 288, is "an official ballot containing the names of all candidates, printed and distributed under state or municipal authority." [Secs. 11557, 11560, 11594, 11595, 11602, 11603, 12235 R.S. '39.] It is not controverted that, if the state law governs, the ordinance must fall, for in their brief respondents "readily concede that a valid ordinance of St. Louis must be in harmony with the state law upon the same subject."
In support of the validity of the ordinance, and the contention that the general state election laws do not apply, respondents first direct attention to Secs. 7 and 9 of Art. II of the charter, as follows:
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