State v. Coburn

• Decision Date: 02 July 1914
• Docket Number: No. 18345.,18345.
• Citation: 260 Mo. 177,168 S.W. 956
• Parties: STATE ex rel. DUNN v. COBURN.
• Court: Missouri Supreme Court

168 S.W. 956

260 Mo. 177

STATE ex rel. DUNN v. COBURN.

No. 18345.

Supreme Court of Missouri.

July 2, 1914.

ELECTIONS (§ 22)—PRIMARIES—PARTY DESIGNATION — SINGLE PLACE ON BALLOT——STATUTES.

Rev. St. 1909, § 5862, providing that no person shall file more than one written declaration indicating the party designation under which his name is to be printed on the official ballot of the primary election, and section 5891, as amended by Act 1913, p. 327, providing that the official ballot used at a general election shall have the names of candidates nominated by each party grouped together, each group headed by the name of the party or principle which the candidates represent, and that the name of no candidate shall appear in more than one group in so far as it prevents confusion by permitting various parties to nominate the same person for the same office and the placing of his name on the ballot under more than one designation, was not in violation of Const. art. 2, § 9, providing that all elections shall be free and open, and that no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage, nor article 8, § 2, prescribing the qualifications of voters and guaranteeing to the citizens so qualified, the right to vote.

Brown, J., dissenting.

In Banc. Mandamus by the State, on relation of Denton Dunn, against J. M. Coburn, Treasurer of the State Central Committee of the Progressive Party of Missouri. Writ denied.

Jno. F. Cell and L. A. Laughlin, both of Kansas City, for relator. Chas. R. Pence, of Kansas City, for respondent.

GRAVES, J.

This is an original action of mandamus. The relator, Benton Dunn, shows by his petition that he has all the legal qualifications for judge of the Sixteenth judicial circuit, division No. 6, of the state of Missouri. He also avers that he is a member of the Republican party, and that he has taken the necessary steps to get his name upon the Republican ticket at the state primary in August next. After averring and showing the foregoing facts, his petition then further proceeds:

"That pursuant to a resolution passed by the county central committee of Jackson county, of the political party known as the Progressive party, your petitioner was asked to file a declaration of his intention to become a candidate for the nomination of the Progressive party, for the aforesaid office of circuit judge of division No. 6 of Kansas City. Accordingly your petitioner, on the 21st day of May, 1914, tendered and offered to pay to J. M. Coburn, treasurer of the state central committee of the Progressive party of Missouri, the sum of $25, good and lawful money of the United States, as required by law, and asked to take his receipt therefor; that said state treasurer, J. M. Coburn, refused to receive said money and to give your petitioner said receipt, and gave as his reason therefor that to accept said sum of money and to give a receipt therefor would be in violation of the provisions contained in the following section of the Revised Statutes of Missouri: `Sec. 5862. No person shall file more than one written declaration indicating the party designation under which his name is to be printed on the official ballot. * * *' Your petitioner avers that said section is unconstitutional and void, and should be for naught held, for the reason that it violates section 9 of article 2, and section 2, article 8, of the Constitution of this state. Wherefore, your petitioner being without other adequate remedy, prays the issuance by the honorable Supreme Court of Missouri, of an alternative writ of mandamus, directing said J. M. Coburn, as said treasurer of the state central committee of the said Progressive party, to receive the said sum of $25, and to issue a receipt therefor or to show cause, at some early day to be named by this court, why he has not done so, and your petitioner prays for such other and further relief to which, by reason of the premises, he may be entitled."

By agreement of counsel the issuance of our alternative writ was waived, and the petition taken as for such alternative writ. Respondent has filed a general demurrer and stands thereon. In such case the facts pleaded in the petition become the facts of the case. The petition upon its face challenges the constitutionality of section 5862, R. S. 1909, but it in fact goes deeper and attacks the validity of section 5891, R. S. 1909, as amended in 1913 by Acts 1913, p. 327. The first section, supra, has application to state primary elections, whilst the latter goes to the election itself. Upon the record the questions are of law rather than of fact. Of such questions, in their order in the course of the opinion.

I. In the statement of the case we have said that the petition, whilst in terms is leveled at R. S. 1909, § 5862, cuts much deeper; this perforce of the fact that we are obliged to consider the validity of our whole statutory scheme in determining the validity of the challenged act. Learned counsel for the relator has made an elaborate, fair, and elegant analysis of our primary laws, and it is with pleasure that we adopt it. They say:

"Section 5862 is found in article 4 of the Revised Statutes. This article was enacted in 1909, and is commonly known as the State Primary Law. It provides that all candidates for elective offices shall be nominated at a primary election held in accordance with this article, except special elections to fill vacancies, to elections for county superintendents of schools, city officers not elected at a general state election, to town, village, or school district officers. Section 5855. The primary is held biennially on the first Tuesday in August. Section 5856. At least 90 days before the day of the August primary the Secretary of State transmits to each county clerk a notice designating the office for which condidates are to be nominated (section 5857), and the county clerk causes such notice to be published (section 5858). Every candidate is required to file a written declaration of his intention to become a candidate. Section 5859. Before filing his declaration papers the candidate is required to pay to the treasurer of the state or county central committee of the political party upon whose ticket he proposes as a candidate a certain sum of money, take a receipt therefor, and file such receipt with and at the time he files his declaration papers. For the office of circuit judge the sum of $25 to be paid to the treasurer of the state committee. Section 5860. Any person desiring to file declaration papers who is not a member of a political party having a state and county committee, or treasurer thereof, must pay the sum of money to the state or county treasurer, as the case may be. Section 5861."

"An official ballot shall be printed and provided for use at such election. The names of all candidates who shall have filed declaration papers shall be printed thereon. Section 5866. Separate tickets are provided for each party entitled to participate in the primary election, and also for those persons who do not announce as the candidate of any political party. If any elector write upon his ticket the name of any person who is a candidate for the same office upon some other ticket than that upon which his name is written, this ballot shall not be counted for such person. Sec. 5869.

"No person shall be entitled to vote at any primary unless a qualified elector and duly registered therein, if registration be required by law and known to affiliate with the political party named at the head of the ticket he calls for and attempts to vote, or obligates himself to support the nominees of said party at the following general election. Section 5871. It is the duty of the judges of election to reject the ballot of any person attempting to vote other than the ticket of the party with which he is known to be affiliated unless such person obligates himself, by oath or affirmation, to support the party nominee of the ticket he is voting in the following general election. Section 5873. The provisions of the statute in relation to the holding of elections, the solicitation of voters at the polls, the challenging of voters, the manner of conducting elections, of counting the ballots and making return thereof, and all other kindred subjects shall apply to all primaries in so far as they are consistent; the intent of the article being to place primary elections under the regulation and protection of the laws now in force as to general elections. Section 5885.

"These provisions of the primary law, taken in connection with section 5891, R. S. (as amended by Acts 1913, p. 327), which provides that the official ballot used on the day of the general election shall have the names of candidates nominated by each party grouped together, each group headed by the name of the party or principle which the candidates represent, and that the name of no candidate shall appear in more than one group, sufficiently indicate that the Legislature has provided a harmonious scheme whereby all fusion between political parties upon any candidate is prohibited. If one of these provisions—i. e., that no candidate shall file more than one declaration of his intention to become a candidate at the primary; that no vote cast for a person who is a candidate for the same office on another ticket shall be counted; that no name shall appear in more than one group on the ballot used at the general election —is invalid, they are all invalid. If one of them is valid, they are all valid."

The italics are ours. We agree with the counsel when they say:

"The Legislature has provided a harmonious scheme whereby all fusion between political parties upon any candidate is prohibited."

And we might add that political honesty would have been better preserved had the policy of the state always been thus. There is no good citizen of the state who has not at some time or another felt a sense of shame at some of the...