State v. Elkin

• Court: Missouri Supreme Court
• Writing for the Court: Barclay
• Citation: State v. Elkin, 130 Mo. 90, 30 S.W. 333 (Mo. 1895)
• Decision Date: 26 March 1895
• Parties: STATE ex rel. ELLIS et al. v. ELKIN et al.

30 S.W. 333

130 Mo. 90

STATE ex rel. ELLIS et al. v. ELKIN et al.

Supreme Court of Missouri, Division No. 1.

March 26, 1895.

WRIT OF PROHIBITION — UNAUTHORIZED ACTION OF COUNTY COURT — CHANGING CERTIFICATE OF ELECTION.

1. A county court, having canvassed and certified the returns of a county-seat election, afterwards recanvassed the vote, and changed the result previously certified. Held, that this was an unauthorized assumption of judicial power against which a writ of prohibition would lie.

2. A writ of prohibition will not be with held because other concurrent remedies exist, it not appearing that such remedies are equally effective and convenient.

3. So long as any part of a void judgment of a court remains unexecuted, a writ of prohibition will lie to prevent further proceedings.

Application upon the relation of F. M. Ellis and others against S. A. Elkin and others, judges of the county court of Montgomery county, for writ of prohibition. Writ allowed.

The petitioners applied for a prohibition against the county judges of Montgomery county to stop proceedings in execution of an order of the county court for the removal of the county seat from Danville to Montgomery City. The documentary evidence mentioned in the opinion of the court is as follows:

Exhibit B of the Return.

"Certified copy of the proceedings of W. A. Crockett, county clerk, S. A. Elkin and J. R. Shocklee, two judges of the county court of Montgomery county, Missouri, acting as a board of canvassers to canvass the returns of an election held in said county on November 6th, 1894, and recorded in Book F, at page 598, as follows:

"`In the matter of the removal of the seat of justice from the town of Danville to the city of Montgomery, heretofore submitted to the voters of Montgomery county, Missouri, at the general election held in said county on the 6th day of November, 1894, exclusive of the Wellsville precinct, there was cast in said county a total of 2,943 votes on said proposition. That there was out of that number 2,029 votes for the removal of such seat of justice from the town of Danville to the city of Montgomery, and there was 914 votes against said proposition. That the returns on said proposition from Wellsville precinct were delivered, on the 8th day of November, 1894, to W. A. Crockett, clerk of the county court, by John Sharp, in the following condition: That the ballots, poll book, and tally sheet were delivered at office of county clerk in Danville; that when same was delivered the ballots were sealed; the poll book and tally sheet were delivered unsealed; and that the only thing said poll book contained were the oaths of the judges and clerks of such election, precinct, and certificate of Walter McQuie, justice of the peace, who had administered the oath of office to such judges and clerks, the names of the voters of that precinct; that there was no certificate made by said judges and clerks of such precinct, showing the number of votes cast for or against said proposition at said election precinct; that the clerk and other canvassers took the vote on said proposition voted upon at such precinct from the tally sheet returned with the poll book; that after said poll book, tally sheet, and ballots had ben delivered to the clerk, said John Sharp and R. L. Lowery informed the clerk that the poll book was not signed and certified to. Through the advice of the board of canvassers, John Sharp returned to Wellsville with the poll book and tally sheet of said precinct. Such poll book was returned to the office of the county clerk the same day, with the certificate filled out, with the names of the judges and clerks attached thereto. The vote of such precinct was as follows: For the removal of the seat of justice from the town of Danville to the city of Montgomery, 197 votes; against the removal of the seat of justice from the town of Danville to the city of Montgomery, 299 votes. The total vote of the county on said proposition, including the vote from Wellsville, was 3,439. 2,226 of such votes were for the removal of the seat of justice, and 1,213 votes against such removal.'

"State of Missouri, County of Montgomery — ss.: I, W. A. Crockett, clerk of the county court in and for said county, hereby certify the above and foregoing to be a true copy of the proceedings of our said board of canvassers, as had on the 8th day of November, A. D. 1894, as the same appears of record in my office, and recorded in Book F, page 598. In witness whereof I have hereunto set my hand and affixed the seal of said court, at office in the city of Montgomery, this, the 21st day of February, A. D. 1895. W. A. Crockett, Clerk County Court. [Seal.]"

Exhibit C of the Return.

"State of Missouri, County of Montgomery — ss.: November Adjourned Term, 1894. In the county court of said county, on the 26th day of December, 1894, the following, among other, proceedings were had, viz.: The matter of the vote upon the proposition to remove the county seat of this Montgomery county, Missouri, from Danville to the city of Montgomery, not having been completely canvassed by this court, and the result announced at its last meeting, the same is now here considered by the court, and the court doth find that no return of the result of the election upon the proposition at Wellsville precinct was made by the judges and clerks of election in the manner required by law; the returns from the precinct, at the time such returns were filed, containing no certificate of any kind showing any vote upon the proposition of the number of votes thereon, either for or against such proposition. The court doth therefore declare the result of the election upon the proposition to remove the county seat of Montgomery county from Danville to the city of Montgomery, refusing to count any alleged vote alleged or supposed to have been cast at Wellsville precinct. And it appearing to the court that there were cast at the election, by the legally certified returns, 2,943 votes upon the proposition to remove the county seat of Montgomery county from Danville to the city of Montgomery, and that of such number 2,029 votes were cast in favor of the proposition and 914 votes were cast against the proposition, and it appearing to the court that there were cast in favor of the proposition the votes of two-thirds of the legal voters of Montgomery county voting upon the proposition, it is ordered and adjudged by the court that the proposition to remove the county seat or seat of justice of Montgomery county from Danville to the city of Montgomery is declared carried under the election ordered by this court; the court being satisfied from the return of R. E. See, sheriff of Montgomery county, and from the affidavits of the publishers of the New Florence Leader, Montgomery Standard, Middletown Chips, Jonesburg Journal, Wellsville Wide-Awake, Wellsville Optic News, and the Montgomery County Republican, newspapers published in the English language in Montgomery county, Missouri, that public notice of the proposed removal of the county seat for the general election of 1894 was given as ordered by this court at its August term, 1894, by publication in seven newspapers, published in the English language, and published in Montgomery county, and by the posting and putting up by the sheriff of Montgomery county, in handbill form, printed copies of the order of this court made at its August term, 1894, submitting the proposition to the qualified voters of said county, in not less than three of the most public places in each township in Montgomery county, both not less than thirty days before the election at which such proposition was voted upon, to wit, on the 2nd and 3rd days of October, 1894, and all such notices were published and continued as nearly as possible up to the day of the election, November 6th, 1894. The court doth therefore order and adjudge that, in pursuance of the statute, five commissioners be, and they are hereby, appointed, to select a site whereon to locate the seat of justice, to wit, J. T. Jones, David Fleet, Jacob B. Shelton, Samuel Mudd, and Charles Kolling. The court further orders that the commissioners above named assemble in the office of the circuit clerk, at the courthouse in the city of Montgomery, on the 9th day of February, 1895, at two o'clock p. m., and report their proceedings as such commissioners to the circuit court of Montgomery county, as the law requires. The court further orders the clerk of this court to issue a certificate of appointment to each of the above-named commissioners, under the seal of this court, showing therein their appointment as such commissioners, and the time and place when and where the commissioners shall assemble, and cause the same to be served by the sheriff on each commissioner; and the sheriff is further ordered to put up advertisements in ten of the most public places in the county, one month before the date of the meeeting of the commissioners, notifying the inhabitants of the county of the time and place and the purport of the meeting.

"State of Missouri, County of Montgomery — ss.: I, W. A. Crockett, clerk of the county court in and for said county, hereby certify the above and foregoing to be a true copy of the proceedings of our said county court on the day and year above written, as the same appears of record in my office. In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at office in the city of Montgomery, this 21st day of February, 1895. W. A. Crockett, Clerk County Court. [Seal.]"

Then follows the return of the sheriff in regard to due publication of the above order, showing such publication as required. The other necessary facts are stated in the opinion of the division.

Silver & Brown, John M. Barker, and Warner Lewis, for relators. C. E. Peers, Morton Jourdan, Fagg & Ball, and Ball & Ball, for respondents.

BARCLAY, J. (after stating the facts).

This is an original proceeding for...