State ex rel. Phillips v. Barton
| Citation | 254 S.W. 85,300 Mo. 76 |
| Parties | THE STATE ex rel. S. A. PHILLIPS v. WILLIAM E. BARTON, J. FRANK HALBROOK, WILLIAM R. WELCH and JAMES H. McDONALD |
| Decision Date | 28 July 1923 |
| Court | United States State Supreme Court of Missouri |
Preliminary writ discharged.
William P. Elmer for plaintiff.
(1) When the county clerk complied with the order of the circuit clerk and made a recount of the ballots and certified in his return to the circuit court the result of such recount, it was not for the contestant to determine whether or not such recount had been made in accordance with law, and to reject the return of the county clerk as incomplete and secure a second order from the circuit clerk for a second recount of the ballots. The recount of the county clerk was prima-facie evidence of the facts therein recited under Section 4916, and a return of the second recount under said section would have the same force and effect. (2) The position of the contestant herein is shown by the demand made on the county clerk at the time of the recount. In substance the demand was that in making the recount he permit a complete inspection of the ballot, both as to the number and the face of the ballot and a comparison of the ballot with the poll books so as to ascertain who it was that voted the ballot and for which candidate it was voted, and also that these facts be embodied in his return to the circuit court; in addition to this the contestant desired to make a private record for his own use showing the same facts. The circuit court agreed with the defendant in his contention and when the return of the county clerk was quashed the court made a record of the reason why such return was quashed. (3) The court has no authority to quash the return because the county clerk refused to permit a private record to be made by the defendants. The law does not contemplate the making of a private record of the names of the voters, number of the ballots and for whom voted. (4) Section 4914 requires the clerk to certify in his return all of the facts either party may desire which may appear from the ballots. If facts appearing from the ballots are all that the parties may require, then the demand on the county clerk was wrong, and the circuit court was wrong in its reasons for quashing the return. (5) The circuit clerk had no authority to make the second order for recount of ballots until the circuit court had passed upon the return of the county clerk.
McGee & Bennett, John M. Stephens and L. B. Woodside for defendants.
(1) The clerk of the county court under the provisions of Section 4911 is a mere ministerial officer, and is required to do the acts commanded to be done by the clerk of the circuit court in vacation. Nash v. Craig, 134 Mo. 347. (a) When the county clerk refuses to perform the acts commanded by the clerk of the circuit court and his term of office expires before he could be compelled to do so, the writ becomes an unexecuted writ and defunct in his hands and a new writ may be issued without any action of the court as to the former writ. (b) If the duties provided for under Section 4911 by the clerk of the court in vacation are ministerial, his act cannot be stopped by prohibition. State ex rel. v Goodier, 195 Mo. 562; State ex rel. v. Elkin, 130 Mo. 90. (c) If the act of the circuit clerk is a judical act then he has the full power in vacation that is vested in the court in term time, to determine whether the return of the county clerk is in compliance with his order and if not to make a new order without any action of the court. (d) By Section 4911 the power to issue the writ is vested in the clerk in vacation, and the court itself is not given any authority to issue it, and if it is a judicial act, the Legislature has vested full power and authority in the clerk of the circuit court to act in vacation, which carries with it the power and authority to determine whether the writ has been obeyed. (e) A contested election is to be tried in summary manner and is triable at the first term of the court and the object in allowing the clerk of the circuit court to issue this writ in vacation is to enable the party to get ready for trial at the next term, and the Legislature certainly intended to give full power and authority to the clerk of circuit court to do every-thing necessary to obtain the information sought. (f) The return of the clerk of the county court has now been quashed by the circuit court upon the ground that the county clerk refused to obey the order of the clerk of the circuit court. This we think was unnecessary and that the clerk had authority to quash the return in vacation. (g) If it appears in the Supreme Court that the return of the county clerk should have been quashed, it will be accorded in the Supreme Court the same effect as if it had been quashed. Sligo Furnace Co. v. Combs, 292 Mo. 534. (2) Section 4914 requires the county clerk to make his return to the writ under seal. He waited for two weeks after his office expired and when he had no authority to use the seal, made a return without the seal; this pretended return without the seal was void. (a) Section 4914 required him to report every fact shown by the ballots which either party desired and which he absolutely refused to do. (b) The county clerk was commanded to open, count and examine the ballots and compare them with the voting lists and certify the result of such count, comparison and examination, all of which he refused to do. (c) In his pretended return made after he went out of office he says he made the recount of the ballots, but he does not state that he made any examination or comparison, and his return shows a complete non-compliance with the order, and that instead of complying he ruled that the circuit clerk had no authority to make the order, basing his ruling on Section 5403. (d) The object of Section 4911, was to enable parties in election contests to prepare for a speedy trial. It does not give the judge of the circuit court in vacation authority to make the order for the examination, but it lodges this authority, in vacation, with the clerk and gives him all the power that is possessed by the court in term time, and if the order made by him is ignored by the county clerk until he goes out of office, there is no other alternative but to call for a new order. (3) Where there is jurisdiction to do an act, prohibition will not lie to determine the manner in which it shall be done. State ex rel. v. Klein, 116 Mo. 259. (a) Prohibition is not a writ of right: the issuance of the writ is dependent upon the facts. Interfering as the writ seeks to do with the act of a subordinate tribunal the writ should not be granted except where usurpation of jurisdiction or an act in excess of the same is clearly evident. State ex rel. v. Johnson, 239 S.W. 845. (b) Section 5403 which the county clerk sought to follow instead of the order of the circuit clerk, was held by this court to be invalid insofar as relates to election contests. In re Oppenstein, 289 Mo. 421.
OPINION
In Banc
Prohibition.
-- This is an original proceeding to prohibit the Judge of the Circuit Court of Dent County from issuing an order in a contested election suit pending in that county to determine the rights of the respective parties to the office of County Collector of Dent County.
At the general election in November, 1922, the opposing candidates for the office of Collector were S. A. Phillips and J. Frank Halbrook. The former, as was shown on the face of the returns, received a majority of the votes cast and a certificate of election was issued to him. The latter within the time limited by the statute, Section 4896, Revised Statutes 1919, and in conformity with its terms, instituted a suit in the circuit court to contest the former's right to the office. Upon the filing of this suit the contestor made formal application in vacation to the Clerk of the Circuit Court, under Section 4911, Revised Statutes 1919, for the issuance by him of a writ directed to the Clerk of the County Court, commanding him to open, count and compare the lists of voters and examine the ballots in his office of the election in contest and to certify the result of such count, comparison and examination, so far as the same relates to the office in this contest, to the court from which the writ was issued. The county clerk proceeded to make an examination under the provisions of Section 5403, Revised Statutes 1919, and not under Sections 4911 to 4914, Revised Statutes 1919. The report of this examination was not filed by the county clerk in the circuit court until January 15, 1923, which was after the expiration of his term of office as county clerk. The circuit court was not in session at the time of the filing of this contest of election nor at any time thereafter until December 30, 1922, when it was in session for that day, at which time no steps were taken by the county clerk to make a report of the result of his examination.
Compliance with the writ not having been made by the county clerk during his official term the contestor, on the 10th day of February 1923, made an application to Wm. H. Welch, Clerk of the Circuit Court, for an order upon James H. McDonald, who, on January 1, 1923, had succeeded J. E. Gaines, as Clerk of the County Court, to open, count and compare with the list of the voters and to examine the ballots in his office cast at the election in contest in the various precincts in the county and to certify the result of such count, comparison and examination, so far as the same relates to the office of Collector of the Revenue of said county. It was stated in said application that an order had theretofore been made upon the former county clerk, but that he had refused to comply...
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