State v. Crain

• Decision Date: 04 April 1947
• Docket Number: No. 6630.,6630.
• Citation: 201 S.W.2d 426
• Parties: STATE ex rel. ADAMS et al. v. CRAIN et al.
• Court: Missouri Court of Appeals

201 S.W.2d 426

STATE ex rel. ADAMS et al. v. CRAIN et al.

No. 6630.

Springfield Court of Appeals. Missouri.

April 4, 1947.

Appeal from Circuit Court, Christian County; Tom R. Moore, Judge.

"Not to be published in State Reports".

A petition for writ of certiorari was filed in the circuit court to require the clerk of the county court to certify to the circuit court all the records he had relative to a stock law election held in Bruner Township in the county. The State, on the relation of A. E. Adams and others, filed a motion to dismiss the petition for certiorari. From a judgment, Tom C. Crain, clerk of county court of Christian County, and others appeal.

Reversed and writ ordered quashed.

Joe C. Crain, of Ozark, for appellants.

John M. Bragg, of Ava, for respondents.

VANDEVENTER, Judge.

On the 25th day of July, 1945, a petition for a writ of certiorari was filed in the circuit court of Christian County, Missouri, praying that court to require the clerk of the county court to certify to the circuit court all the records he had relative to a Stock Law Election held in Bruner Township in said county on the 11th day of June, 1945. It was alleged that five absentee votes were cast in said election, all against the stock law, and that the counting of said votes produced a tie — for the stock law 99 and against the stock law 99. It was further alleged that two of said absentee votes were illegal because two of the persons voting had been convicted of felonies and received sentences in the State Penitentiary and had never been restored to the rights of citizenship. That the county clerk, Tom C. Crain, had no authority to appoint four persons, therein named, as canvassers to count said absentee ballots and make a return thereof as provided by law. That it was the intention of petitioners to be present when the vote was canvassed and to challenge the two allegedly illegal votes and that if said votes were held illegal, the election would have carried. The petition prayed the court to quash the record of the county court and to make an order directing that the respondent, Tom C. Crain, county clerk, bring before the court all records of his office pertaining to such election.

The circuit court issued the writ as prayed for in the petition. On the 30th day of July, the respondents filed a motion to dismiss the petition for certiorari on the ground (among others) that the duty of the county clerk and the county court relative to appointing the canvassers and canvassing or superintending the canvassing of the vote was a ministerial duty — not judicial — and therefore not the subject of certiorari. This motion was overruled and a return was filed, alleging that the actions of the respondents were ministerial, had been in compliance with the law, and attached to the return were all the records pertaining to said Stock Law Election. Those records consisted (Exhibit A) of the oath and certificate of the four appointed canvassers, (Exhibit B) the clerk's minutes relative to the transaction and (Exhibit C) the record of the court as finally written. These Exhibits were as follows:

Exhibit A

"Certificate of Canvassers of Absentee Vote (Section 10186, Laws 1933 [Mo. R.S.A. § 11475])

We and each of us do hereby swear (or affirm) that we are legally entitled to vote and are able to read and write, and we will impartially discharge the duties of canvassers of the absentee vote at the present election, according to law, to the best of our ability, and that we will not disclose how any voter shall have voted unless we are required to do so as a witness in the proper judicial proceedings, so help me God.

Severally sworn to and subscribed before me this 13th day of June, 1945.

                             Signed
                                 RAMAH STUBBS
                                 L. B. BILYEU
                                 J. B. ANDERSON
                                 J. W. JOHNS
                                     Canvassers
                Witness my hand hereto
                Signed: T. C. CRAIN
                (SEAL)"
                

Certificate.

"We, Ramah Stubbs, L. B. Bilyeu, J. B. Anderson and J. W. Johns, being four disinterested persons, from the two dominant political parties, not more than two of us being of the same political faith, appointed by the canvassers of the returns of the Special Election held on the 11th day of June, 1945, of Christian County, Missouri, for the purpose of opening and counting the ballots of absent voters at the Special Election held on the 11th day of June, 1945, having been duly sworn, having at once proceeded to open, count and canvass the votes cast by absentee voters and having determined that such absent voters are entitled to vote in the precincts wherein they offered to vote, and having duly satisfied ourselves that the ballots were those of persons qualified to vote in the precincts named in the affidavits which accompanied the ballots they voted, hereby certify that the number of votes cast for each of the respective candidates at said election is as follows:

                     Name of Candidate          Party          Office          Number of
                     (Or Proposition)                      (For, Against)    Votes Received
                     (Voted On)                            (Yes or No)            Total
                For Enforcing Stock Law                                         1111 -5
                

Against Stock Law

Witness our hands this 13th day of June, 1945.

                           Signed: RAMAH STUBBS
                                   J. B. ANDERSON
                                   L. B. BILYEU
                                   J. W. JOHNS
                                       Canvassers."
                

EXHIBIT B

(Minutes)

                "Page 296
                 June 14, 1945               11th day of May —
                                                     Adj. Term
                

Court met in special session. Officers present: E. L. Jennings, Presiding Judge; and H. R. Stone, Eastern Judge; Lige Reed, Sheriff; and T. C. Crain, County Clerk. The following proceedings were had, to-wit:

The County Court and County Clerk cast up returns of Special Stock Law Election in Bruner Township and hereby make their report as follows: said final vote including absentee ballots, to-wit:

                    For Stock Law              99 votes
                    Against Stock Law          99 votes."
                

EXHIBIT C

(Final Record)

                "June 14, 1945             11th day of May —
                                             Adjourned Term
                

Christian County Court

"Court met in Special session. Officers present E. L. Jennings, Presiding Judge; and H. R. Stone, Eastern District Judge; Lige Reed, Sheriff; and T. C. Crain, County Clerk. The following proceedings were had, to-wit:

Cast-Up of Returns of Special Election

"The County Court, composed of Judges E. L. Jennings and H. R. Stone, they having been heretofore appointed by the County Clerk to canvass the returns of the Special Stock Law Election held in Bruner Township, together with the County Clerk, hereby cast up the returns of the said Special Stock Law Election and report the final official returns, including the Absentee Ballots, as follows, to-wit:

                    "For Stock Law             99 votes
                     Against Stock Law         99 votes."
                

In addition to the introduction of the records included in the return, the court permitted oral testimony to be taken and rendered judgment finding that the absentee ballots had never been legally counted and cast and directed the county clerk to "within a reasonable time take to his assistance two Justice of the Peace or two members of the County Court all of Christian County, Missouri and such board as constituted to select four disinterested persons to open, canvass, count and certify the votes cast by absent voters voting at such election as provided by the laws of the State of Missouri, and after such absentee votes have been cast and counted as provided by law, then such County Clerk and the Justices of the Peace or the Judges of the County Court by him called or taken to his assistance then will examine and cast up the votes, voting in such election for or against the proposition submitted and certify the result of such election and this proceeding remanded to the County Clerk of Christian County, Missouri to proceed in accordance with this direction."

After the overruling of a motion for new trial, the County Clerk and County Court took the proper steps to have the matter reviewed here.

Certiorari is a proper remedy to review the actions of a court or body acting without jurisdiction, or in excess of its jurisdiction, in a judicial proceeding. It does not take the place of mandamus to compel the making of a record but takes the record as it finds it. State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S.W. 473, Ann.Cas.1914A, 823.

As was said by the Supreme Court in State ex rel. Manion v. Dawson, 284 Mo. 490, 225 S.W. 97, 99: "Certiorari is a remedy narrow in its scope and inflexible in its character. It is not a general utility tool in the legal workshop. It cannot be made to serve the purpose of an appeal or writ of error. All that can be done under it is either to quash or to refuse to quash the proceedings of which complaint is made. In the case at bar we may either quash the record of the trial court or quash the writ. No other course is open to us."

It is the settled law that certiorari will lie only when the action sought to be reviewed is judicial in character. It will not lie if such action is the exercise of a ministerial, legislative or executive function of government. State ex rel. Powell et al. v. Shocklee, 237 Mo. 460, 141 S.W. 614. State ex rel. Carman v. Ross et al., 177 Mo.App. 223, 162 S.W. 702; State ex rel. Manion et al. v. Dawson, supra; Hawkins v. City of...