State ex rel. Sommer v. Calcaterra

• Decision Date: 26 March 1952
• Docket Number: 43096,Nos. 43095,s. 43095
• Parties: STATE ex rel. SOMMER et al. v. CALCATERRA et al. STATE ex rel. SCOTT et al. v. CALCATERRA et al.
• Court: Missouri Supreme Court

Page 728

247 S.W.2d 728

362 Mo. 1143

STATE ex rel. SOMMER et al. v. CALCATERRA et al.

STATE ex rel. SCOTT et al. v. CALCATERRA et al.

Nos. 43095, 43096.

Supreme Court of Missouri, en Banc.

March 26, 1952.

Luther Ely Smith, Jr., Victor B. Harris, St. Louis, Smith, Harris & Hanke, St. Louis, of counsel, for relators Sommer and others.

S. R. Redmond, Henry D. Espy, St. Louis, for relators Scott and another.

Hyman G. Stein, Mortimer A. Rosecan, St. Louis, for respondents.

LEEDY, Judge.

These cases were consolidated for the purpose of argument. They involve precisely the same issues, and so will be disposed of in a single opinion. They are original proceedings in prohibition to prevent the Board of Election Commissioners of the City of St. Louis from receiving declarations of candidates for the office of State Senator, and otherwise conducting the ensuing primary and general elections for such office in the senatorial districts into which the Board recently divided the city under an apportionment based on the 1950 decennial census. Relators sue as 'citizens of the United States and of the State of Missouri, and residents, taxpayers and qualified voters of the City of St. Louis'--and, in No. 43,096, also on behalf of all other citizens, electors and voters similarly situated. Respondents are members of, and constitute the Board of Election Commissioners.

In the reapportionment of the state's thirty-four senators and the numbers of their districts following the last (1950) decennial census, as provided by Art. III, Sec. 7, Const. of Mo. 1945, V.A.M.S., the City of St. Louis was found to be entitled to seven senators, and the district numbers assigned to it were 1 to 7, both inclusive. RSMo 1949, Sec. 22.010, V.A.M.S. Under Sec. 8 of the same article of the Constitution, the dity then devolved upon the Board of Election Commissioners of the City of St. Louis (it being the body authorized to establish election precincts, RSMo 1949, Sec. 118.150, V.A.M.S.) to divide the city 'into districts of contiguous territory, as compact and nearly equal in population as may be, * * *.' Whether in discharging the duty thus enjoined upon them, respondents established districts conforming to these constitutional requirements of contiguity, compactness and equality of population is the ultimate question presented on the merits. But before reaching that question it becomes necessary to inquire into and pass upon another raised in the return and briefed by the parties, namely, whether prohibition lies against respondents under the facts above outlined.

Much has been written concerning the scope and application of the writ of prohibition as developed from the common law and applied in this jurisdiction, but no aspect of the governing principles is better settled than that the office of the writ is to prevent or control judicial or quasi-judicial action. Our cases say 'that it is the nature of the act, and not the character of the board or tribunal proceeded against which determines the propriety of the writ.' State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen's Compensation Commission, 320 Mo. 893, 898, 8 S.W.2d 897, 899; State ex rel. United States Fidelity & Guaranty Co. v. Harty, 276 Mo. 583, 208 S.W. 835. Accordingly, it has become familiar doctrine that 'election authorities are subject to the writ of prohibition with respect to acts which are judicial or quasijudicial, but not, in the absence of statutory provision, with respect to acts which are legislative, administrative, or ministerial in their nature.' 18 Am.Jur., Elections, Sec. 329, p. 389. See, also, Annotation 115 A.L.R. 3, 24; Annotation 159 A.L.R. 627 634. 73 C.J.S., Prohibition, Sec. 11, p. 64, states the rule thus: 'An administrative or executive board or tribunal or a public officer will be restrained by prohibition from performing judicial or quasi-judicial acts only if acting without, or in excess of, jurisdiction.'

'It is a well-settled rule that prohibition will not lie to control administrative or ministerial functions, discretionary actions, or legislative powers. High on Ex.Legal Rem. (3d Ed.) Sec. 782; State ex rel. [West] v. Clark County Court, 41 Mo. 44; State ex rel. [McEntee] v. Bright, 224 Mo. 514, 123 S.W. 1057; State ex rel. [McAnally] v. Goodier, 195 Mo. 551, 93 S.W. 928; Kalbfell v. Wood, 193 Mo. 675, 92 S.W. 230.' Bash v. Truman, 335 Mo. 1077, 1080, 75 S.W.2d 840, 843.

It may be said at this point that there is no Missouri statute extending the scope of the writ to acts of a legislative, administrative or ministerial nature, so the solution of the preliminary question (as to the propriety of the remedy here invoked) turns upon whether the act sought to be prohibited is either judicial or quasi-judicial in nature, a matter upon which the the two sets of relators take different positions. As regards the nature of the action in question, it is not contended that any distinction is to be drawn between the laying out or establishing the districts in the first instance, and respondents' duties or jurisdiction having to do with the process of administering or giving effect to such districts in connection with elections to be held therein. Nor is it sought to come within the rule that although ordinarily prohibition is preventive rather than corrective, and issues to restrain the commission of a future act and not to undo an act already performed, yet prohibition is available where a judicial body is proceeding without jurisdiction, and some part of its action remains to be performed. Example: Granting of an injunction without jurisdiction; enforcement may be prohibited. State ex rel. Taylor v. Nangle, Mo.Sup., 227 S.W.2d 655, 657.

It will be helpful to notice the cases on which relators rely on the question of the remedy, and this we do seriatim. In State ex rel. Stone v. Thomas, 349 Mo. 22, 159 S.W.2d 600, 602, it was held that the action of the board of election commissioners in changing certain precinct lines did not operate to abolish the former precincts and...