State v. Becker
| Decision Date | 06 September 1928 |
| Docket Number | No. 29171.,29171. |
| Citation | 9 S.W.2d 153 |
| Parties | STATE ex rel. FRANK v. BECKER, Secretary of State. |
| Court | Missouri Supreme Court |
Victor Packman, of St. Louis, and Ira Lohman, of Jefferson City, for relator.
Stratton Shartel and Smith Atwood, both of Jefferson City, for respondent.
This is an original proceeding in mandamus. The writ will have to be denied. It is not our practice to prepare formal opinions in cases in which alternative or provisional writs are denied in the first instance, but, owing to the public interest involved, we deem it proper to state briefly the reasons for our action in this instance.
Petitioner seeks our writ of mandamus to compel Charles U. Becker, secretary of state of the state of Missouri, to publish a certified statement of the result of the last primary election as to candidates for the office of United States Senator, disregarding in his final tabulation the returns from the counties of Jackson, Buchanan, and Pemiscot relating to candidates for the Republican nomination for United States Senator, which are alleged to be so arbitrary and false as to be a nullity, and to mail to the chairman of the Republican state central committee a certificate in accordance therewith, and "to certify to the county clerk of each county in the state of Missouri, the petitioner, Nathan Frank as the nominee for United States Senator on the Republican ticket." Petitioner also prays:
"That in the meantime the said secretary of state be enjoined from publishing a certified statement showing the name of any other candidate as having received the greatest number of votes cast at said primary election, and that he be further enjoined from mailing to the chairman of the Republican state central committee a certificate showing the name of any nominee other than petitioner, and that he be further enjoined from certifying to the county clerk of each county in the state of Missouri, the name of any other person that petitioner as the nominee of United States Senator on the Republican ticket to be voted on at the November, 1928, election, and for such further orders and relief in the premises as to the court may seem meet and proper."
The secretary of state has entered his voluntary appearance, waived notice, issuance, and service of the alternative writ, and consented that the petition may be taken as and for the writ.
Election contests in this state are purely statutory. State ex rel. v. Hough, 193 Mo. 615, loc. cit. 643, 91 S. W. 905. Petitioner avers that no statutory method has been provided for contesting a primary election, and that therefore he may resort to a proceeding in mandamus originally filed in this court and by this strictly legal remedy compel the secretary of state to certify his own name as the Republican nominee for United States Senator instead of the name of another, whose name petitioner says will be so certified from the face of the returns made to the secretary of state unless we grant the writ of mandamus herein prayed. The duties of the secretary of state in connection with returns certified to him in state primary elections are thus indicated in R. S. Mo. 1919:
Under the foregoing statutes, the duty of the secretary of state is plain. He must publish the result of the primary election as it appears from the state canvass certified to him, and not otherwise. It thus appears that we are asked to command him to proceed in a manner contrary to the plain terms of the above statute, and do what under the law he has no power to do; namely, reject or go behind the results of the canvass of the returns of the precinct judges and clerks certified to him by the county clerks of the various counties in the state. In such case mandamus does not lie. 18 R. C. L. 268.
Does the allegation that some of the returns so certified to the secretary of state are false and fraudulent change the situation and make...
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