State ex rel. Punch v. Kortjohn

• Decision Date: 26 November 1912
• Parties: STATE ex rel. PUNCH et al. v. KORTJOHN et al., Board of Election Com'rs.
• Court: Missouri Supreme Court

150 S.W. 1060

246 Mo. 34

STATE ex rel. PUNCH et al. v. KORTJOHN et al., Board of Election Com'rs.

Supreme Court of Missouri.

November 26, 1912.

1. EVIDENCE (§ 11)—JUDICIAL NOTICE—HISTORICAL FACTS.

The Supreme Court will take judicial notice of matters of current public history, such as the birth of the Progressive party.

2. ELECTIONS (§ 120)—NOMINATIONS—NOMINATION BY ELECTORS — STATUTORY PROVISIONS.

Laws 1889, p. 105 (Rev. St. 1909, § 5833), authorizes nominations by conventions of delegates, primary elections, and also by electors to the number therein specified. Thereafter Laws 1907, p. 263, entitled "Au act to provide for party nominations by direct vote," was enacted. Laws 1909, p. 481, repealed the act of 1907, but re-enacted most of its provisions, and provided in section 1 (Rev. St. 1909, § 5855) that all candidates for elective offices should be nominated by a primary election. Held that, when considered in connection with the political and legislative history of the times, the acts of 1907 and 1909 were intended only to regulate nominations by political parties, and, while they impliedly repeal the provision of the act a 1889 authorizing nominations by conventions, they do not impliedly repeal the provision authorizing nominations by electors.

3. ELECTIONS (§ 147)—NOMINATIONS—FILLING VACANCIES.

The party committee of a party organized before the August primary, but after the time for taking the preliminary steps for such primary, may nominate candidates under Laws 1909, p. 485, § 15, providing that vacancies occurring after the holding of a primary, or where no person offers himself as a candidate before such primary, shall be filled by the party committee.

4. ELECTIONS (§ 147)—NOMINATIONS—NOMINATION BY COMMITTEE.

The board of election commissioners cannot question the authority of a party committee de facto actually performing the duties prescribed by law, and claiming to act for a duly organized political party, to make nominations to fill vacancies.

5. ELECTIONS (§ 135)—PARTY COMMITTEES— MANNER OF ELECTION.

The members of a new political party may elect provisional party committees to serve until a committee can be elected under the statute otherwise than at a primary election.

In Banc. Original mandamus proceeding by the State, on the relation of David T. Punch and another, against Henry Kortjohn, Jr., and others, constituting the board of election commissioners of the city of St. Louis. Peremptory writ awarded.

Joseph A. Wright, Ford W. Thompson, Henry H. Oberschelp, Albert Chandler, and Paul V. Janis, all of St. Louis, for relators. Lambert E. Walther, of St. Louis, for respondents.

GRAVES, J.

Relators, Punch and Wilson, are members of the "Progressive party," a political organization horn since the Republican National Convention in June, 1912. Of matters of current public history we can take judicial notice. Respondents are the members of the board of election commissioners of the city of St. Louis. By three several routes the relators sought to have the respondents place their names upon the official ballots to be used in the general election of November 5, 1912. The offices to which they aspire is state representative from the Sixth district in the city of St. Louis. They presented to respondents (1) a petition duly signed and executed by the required number of qualified voters in their district; (2) a certificate of nomination to such office by a convention of said party in said district; and (3) a certificate of nomination by the committee of such party in said district. Notwithstanding the fact that they knocked at these three several doors, the respondents as a body were in doubt as to whether either should be opened, and by a vote of two and two all were thereby left closed, and relators denied a place upon the official ballots. Relators not content with this ruling, application was made to this court invoking our writ of mandamus to compel the respondents, through one door or the other, or all, to place their names upon such ballots. Being, willing that the matters might be heard, our alternative writ was issued, to which return was made by respondents Blodgett and Kortjohn in the form of a demurrer. Respondents Jamison and Spencer file a separate return in which they admit the facts stated by relators, and say that they voted to receive relators' petition and other evidence of nomination, and to place their names upon the official ballot, and that they are still willing that the same be done. To their return is a certified copy of the record of proceedings before the board of election commissioners which shows that they acted as in their return stated. In this state of the record the question becomes one purely of law, and must be disposed of as such. Facts thus admitted by the respective returns will be noted under the proper point in the course of the opinion.

1. The questions presented compel a thorough view of our primary laws as well as some previous laws as to nominations. Respondents, Kortjohn and Blodgett, contend that under our primary act of 1909 no person can be a candidate for any office of the character here involved and have his name on the official ballot, unless such person is nominated at the biennial primary for the year in which he expects to run for such office. Of course, they make no such claim as to offices especially excepted in this primary act of 1909, nor to persons nominated to fill vacancies after such primary, but as to an office of the class to which the office here in question belongs such is their contention. They argue that the act of 1909 operated to repeal other methods of nominating candidates for public office. To this contention we do not fully agree. Respondents, and when we use the term respondents here, we refer to respondents, Kortjohn and Blodgett, rely upon section 5855, R. S. 1909, which reads: "Hereafter all candidates for elective offices shall be nominated by a primary election held in accordance with this article. This article shall not apply to a special election to fill vacancies nor to county superintendents of schools, to city officers not elected at a general state election, to town, village, or school district officers." This section comes to the body of our laws from the act of 1909. Laws 1909, p. 481. In 1889 (Laws 1889, p. 105), under the head of elections, there was passed an act entitled "An act to provide for the printing and distributing of the ballots in election for public offices at public expense, and to regulate the election of public officers," the second section of which reads: "Sec. 2. Any convention of delegates or primary election as hereinafter defined, held for the purpose of making nominations to public office, and also electors to the number hereinafter specified, may nominate candidates for public offices to be filled by election within the state. Such nomination shall be made by filing a certificate of nomination, executed with the formalities prescribed for the execution of an instrument affecting real estate." This section has remained upon the statute books ever since, and is now section 5833, R. S. 1909. When passed in 1889, this section was the one which defined and pointed out the sources of nominations. They were three in number—i. e., (1) a convention of delegates; (2) a primary election; and (3) a petition by electors. In the early case of Atkeson v. Lay, 115 Mo. 538, 22 S. W. 481, this court held that such electors might designate a party name, and under that name have their candidates' names printed. Thus the door was opened for the formation of a new party by any considerable portion of the electorate of the state. This remained the fixed policy of the law until 1909, and is the fixed policy of the law now, unless such policy has been changed by the act of 1909 or previous intervening acts. In determining the legislative intent, it is proper to consider the public history of the times. It will be noted that in this act of 1889 the primary system is recognized as one of the methods of naming candidates. About that time and even prior thereto, public sentiment was divided as to the better method of making party nominations. The convention system had its advocates and the primary system had its advocates. As between the two the fight proceeded, but from neither side was there evinced a disposition to bar any independent candidates named by the electors or the formation of new parties by the electorate of the state. The absorbing topic was, Shall the convention system survive, or shall it be displaced entirely by the primary system? Our political and legislative history bespeak these facts. The whole fire was centered upon this matter in so far as party nominations are concerned. There was no public thought of...