State v. Byrd
| Decision Date | 23 November 1921 |
| Citation | 237 S.W. 166,208 Mo.App. 514 |
| Parties | STATE OF MISSOURI, at the Relation of CARL F. BLOKER, Relator, v. WILLIAM DYER BYRD and PETER HUCK, Judge of the 27th Judicial Circuit of the State of Missouri, Respondents |
| Court | Missouri Court of Appeals |
PRELIMINARY RULE QUASHED AND WRIT DENIED.
Preliminary rule quashed and writ denied.
C. G Shepard, Gallivan & Finch, and Shepard Barclay for relator.
Ward and Reeves, N. C. Hawkins, C. J. Stanton, and Peter J Barrett, for respondents.
(1) It is not necessary to set out the particular constitutional provisions violated in words. State ex rel, Campbell v. St. Louis Court of Appeals, 97 Mo. 276; Baldwin v. Fries, 103 Mo. 286. (2) It is not necessary to refer to the sections of the Constitution violated by their numbers. State ex rel. Campbell v. St. Louis Court of Appeals 97 Mo. 276, Baldwin v. Fries, 103 Mo. 287. (3) It is only necessary to plead the facts and the courts must apply the law (constitution) to the facts pleaded. State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276. (4) It is enough if the record shows that in the disposition of the appeal there is involved the construction of some provision of the Constitution of the United States or of this State. State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276. (5) Where a constitutional question is in good faith presented by the record, the jurisdiction of the Supreme Court will not be defeated, even should a decision of such question prove to be unnecessary to the final disposition of the case on appeal. Skinner v. Railroad, 254 Mo. 228; City of Milan v. Allen, 175 S.W. 933; Dorrance v. Dorrance, 294 Mo. 625; Kircher v. Evirs et al. 210 S.W. 917. (6) It is the duty of the Supreme Court to determine constitutional questions when they are fairly raised by the record and the Courts of Appeal are without jurisdiction in such cases. State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276; Schuster v. Weiss, 39 Mo.App. 633; Ex Parte Olden, Cromer & Baker, 37 Mo.App. 116; State v. Dinnesse, 41 Mo.App. 22; City of Springfield v. Weaver, 66 Mo.App. 293. (7) A constitutional question is necessarily involved whenever the conclusion reached could only be arrived at after a construction of the Constitution. State ex rel. Curtice v. Smith, et al., 177 Mo. 69; State ex rel. v. Smith, 152 Mo. 444; State ex rel. v. Smith, 141 Mo. 1; Kirkwood v. Meramec Highlands, 160 Mo. 118; Kankana v. Green Bay, 142 U.S. 254; Town of Canton v. McDaniel, 91 Mo.App. 626; Placke v. U. S. R. Co., 140 Mo. 634; Schuster v. Weiss, 39 Mo.App. 633; Murrell v. McGuegan, 68 Mo.App. 121. (8) It cannot be laid down by rule how every constitutional question might be raised in the trial court. It is sufficient if it be fairly and directly presented by some of the methods (pleadings) recognized by the practice and procedure. Bennett v. Mo. Pacific Railroad Co., 105 Mo. 642. (9) The word "involving" as used by the Constitution in fixing the appellate jurisdiction of the Supreme Court, implies that a constitutional question was raised in and submitted to the trial court, and that such court had the opportunity to pass upon it. Bennett v. Mo. Pacific Railway Co., 105 Mo. 642; Hardwicke v. Wurmm, 264 Mo. 138. (10) Construction signifies determining the meaning and proper effect of language by consideration of the subject-matter and attendant circumstances in connection with the words employed. Construction applies the language interpreted to both the subject-matter and the attendant circumstances. Dorrance v. Dorrance, 242 Mo. 644. (11) When a constitutional question is raised by petition, answer, reply, instruction, motion to quash or motion to strike out, and the party raising such constitutional question states the facts showing a violation of the Constitution, he comes into the open and puts his finger on the specific provision of the Constitution alleged to be violated, although he does not set out the particular constitutional provisions violated in words, nor refers to the sections of the Constitution violated by their numbers. Lohmeyer v. Cordage Co., 214 Mo. 688; State ex rel. Campbell v. St. Louis Court of Appeals, 97 Mo. 276; Bennett v. Mo. Pacific Railway Co., 105 Mo. 642. (12) While it is true that on a bona-fide allegation in the notice of contest an examination and comparison of the ballots may be made and even a certificate as to how particular voters voted, still this certification and exposition of the secrecy of ballots of voters, who are not questioned in the pleadings, is unnecessarily exposing the secrecy of ballots as to such voters, and is contrary to the provisions of the State Constitution. Art. 8, sec. 3, Constitution of Mo.; Gantt v. Brown, 560 Mo. 581; Gass v. Evans, 338 Mo. ___; Winds v. Nelson, 159 Mo. 51. (13) A motion to quash is the proper way to raise a constitutional question in this case, and was the first opportunity contestee had to object to said certification. Nash v. Craig, 134 Mo. 347. (14) Relator has a speedy and adequate remedy by appeal or writ of error. Secs. 4900, R. S. 1919. (15) A writ of prohibition will not lie to correct errors of the circuit court when the same may be reviewed by appeal or writ of error. Hoops v. Blair, 105 Mo. 93; In Re Buck, 252 Mo. 302, 237; Dowdy v. Wamble, 110 Mo. 284; State ex rel. v. Hough, 193 Mo. 652; State ex rel. v. Riley, 203 Mo. 192-3; State ex rel. v. Withrow, 108 Mo. 7-8; State ex rel. v. Evans, 184 Mo. 643-4; State v. Henson, 217 S.W. (Mo. Sup.) 18; State ex rel. Eleson, 10 S.W. (Mo. App.) 410; State v. Shoehorn, 246 Mo. 559; State v. Stobie, 194 Mo. 45.
Prohibition. Original Proceeding.
--This is an original proceeding in prohibition against the Honorable Peter Huck, of the 27th Judicial Circuit, as Judge of the circuit court of Ste. Genevieve county, Missouri, with whom William Dyer Byrd is made respondent. The object of the proceeding is to prohibit Judge Huck from sustaining a motion to quash the return of the city clerk of the City of Caruthersville in an election contest pending in the circuit court of Ste. Genevieve county. On relator's application we heretofore issued our preliminary rule in prohibition. Respondents filed separate returns, to each of which relator pleaded by a motion to quash, challenging the sufficiency of the returns as an answer or defense to the preliminary rule made herein by this court.
The material facts are as follows: An election contest was instituted in the circuit court of Pemiscot county by Carl F. Bloker, as contestant, against William Dyer Byrd, respondent, as contestee, involving the office of Mayor of the City of Caruthersville. A change of venue was granted to the circuit court of Ste. Genevieve county, where the cause is now pending.
Contestant Bloker, in June, 1920, applied to the circuit clerk of Ste. Genevieve county for a writ of recount, the court then being in vacation. The application prayed for an order directing the clerk of the City of Caruthersville to open, count and examine the ballots that were cast in Wards 2 and 3 in the election for the office of Mayor of that city, held in April, 1920, and to compare such ballots with the list of the voters in his office which were cast at said election in said Wards and to certify the result of such count, comparison and examination, so far as the same related to the office which is in dispute.
The circuit clerk in May, 1920, issued the order, directing said city clerk to open, count and examine the ballots cast in Wards 2 and 3 in said city election, and to compare the same with the list of voters, and to proceed fully to examine said ballots in the presence of contestant and contestee and their attorneys, and to permit them to fully examine the ballots, and after making such examination, count and comparison, to make return to said order and writ of the result of such examination, count and comparison. Contestant in his amended notice of contest alleged that the judges and clerks in Ward 3 changed the ballots of legal voters who voted for him and refused to count such votes, and set forth in detail the names of said voters whom contestant claimed the judges and clerks in said Ward changed. The same allegation was made as to Ward 2, and it was set forth in detail the names of the voters whose ballots contestant claims were there changed against him. In the third Ward contestant claimed that many legal votes were cast for him but were not counted by the judges and clerks of election, also that many illegal votes were cast and counted for contestee in Ward 3, but the names of such illegal voters were not given. And it is alleged, further, that in both Wards 2 and 3 legal votes were cast for contestant but were not counted by the judges and clerks, and that many votes were cast in these Wards for contestee by parties not entitled to vote at said election without specifying the names of such illegal voters.
It is further charged by contestant that in Ward 3 the election law was violated by the judges and clerks in secretly preparing ballots of illiterate voters, making them out for contestee when they were requested by the voter to make them out for contestant. Neither the names nor the numbers of such illiterate voters are given.
The city clerk in the so-called return gave the name of each and every voter in said Wards, the number of his ballot and for whom he voted. It is contended by contestee that no such certification of voters is requested in the application for writ of recount, nor that such certification is directed by the circuit clerk in the writ of recount itself; and that the action of the city clerk in certifying such names as were not questioned by the contestant in...
To continue reading
Request your trial