State v. Evans

• Decision Date: 25 November 1904
• Citation: State v. Evans, 184 Mo. 632, 83 S.W. 447 (Mo. 1904)
• Parties: STATE ex rel. BRADY v. EVANS, Judge, et al.
• Court: Missouri Supreme Court

83 S.W. 447

184 Mo. 632

STATE ex rel. BRADY v. EVANS, Judge, et al.

Supreme Court of Missouri.

November 25, 1904.

ELECTIONS — CONTESTS — TIME OF BRINGING — PROHIBITION — MATTERS REVIEWABLE — JURISDICTIONAL DEFECTS — MATTERS OF ERROR — EXPOSURE OF BALLOTS.

1. Rev. St. 1899, § 7033, provides that election contests shall be determined at the first term of court that shall be held 15 days after the official counting of the votes and service of notice of contest. Section 7029 requires notice of contest to be given to the contestee within 20 days of the official count of ballots. An official count was held April 11th; notice was given April 26th, on which date the court stood adjourned to May 7th (less than 15 days from date of notice). A regular term of court convened in June. Held, that the contest was properly brought to the June term of court, although it transpired that when the court convened on May 7th, it adjourned to another day in the current term, to which, had the contestant foreseen the court's action, the contest might have been brought.

2. Matters of jurisdiction only can be considered on an application for a writ of prohibition.

3. An application for a change of venue addressed to the circuit court does not end that court's jurisdiction and its denial of the application where it should have been granted is merely error, for which the judgment, if finally rendered against the applicant, may be reversed, but which is not ground for the issuance of a writ of prohibition.

4. A notice of an election contest, which, while it states a defective case, states a case, gives the circuit court jurisdiction, and prohibition will not lie merely to correct an erroneous ruling of that court on a demurrer to the notice.

5. A petition for writ of prohibition to restrain the further hearing of an election contest stated that the law required a distinguishing number to be placed on the ballot, but did not state that it was in fact placed there. On a return to the rule the election commissioners stated that the law did not require the number, and that in point of fact it was not placed on the ballot. The reply to the return reasserted the existence of the legal requirement, but did not deny the statement of facts. Held, that the statement that the distinguishing number was not placed on the ballot must be accepted as true, and prohibition would not lie on the ground that the opening and recounting of the ballots would result in an unconstitutional exposure of the vote of the electors.

6. It will be assumed, on application for a writ of prohibition to restrain the hearing of an election contest, that the court before which the contest was pending would, if the contest should result in an unconstitutional exposure of the vote of the electors, perform his duty in the premises, and take proper precautions to prevent such exposure.

In Banc. Application for writ of prohibition on the relation of Hugh C. Brady against Andrew F. Evans, judge of the circuit court of Jackson county, and others. Writ denied.

Frank P. Walsh and H. H. Blanton, for relator. G. H. Kelly and L. H. Waters, for respondents.

VALLIANT, J.

This is an application by the relator for a writ of prohibition to be directed to one of the judges of the circuit court of Jackson county to prohibit him from proceeding to hear and determine a contested election case pending before him, and to prohibit other respondents, who compose the board of election commissioners of Kansas City, from executing an order made by the circuit court in the case. The petition states that the relator was duly elected to the office of police judge of Kansas City at a general municipal election held in that city on April 5, 1904; that William Buchholz, who is also made a party, was the opposing candidate, and has instituted in the circuit court of Jackson county, at Independence, over which Judge Evans presides, a suit to contest relator's election; that the circuit court has made an order requiring the election commissioners to open and count the ballots, etc., which they are about to do. The petition also alleges that the circuit court is without jurisdiction, or is acting in excess of its jurisdiction, in the case, and it is on that ground that this writ is sought. The grounds on which the relator contends that the court is without jurisdiction, or going beyond its authority, are reducible to four, viz.: (1) That the suit was not brought to the first term of the court held 15 days after the official counting of the votes and service of notice; (2) that the court overruled contestee's lawful application for a change of venue; (3) the notice of contestant did not state facts sufficient to constitute the basis for a contested election suit; (4) the order to open and count the ballots is so framed that it violates the provisions of our Constitution designed to preserve the secrecy of the ballot. The facts on which these contentions respectively rest will be stated under the point to which they apply.

1. That the suit was not brought to the first term of the court held 15 days after the official count of the ballots and service of notice. Section 7033, Rev. St. 1899, declares: "The contest shall be determined at the first term of such court that shall be held fifteen days after the official counting of the votes and service of notice of contest unless," etc. The circuit court met at Independence March 14, 1904, which was the first day of the March term. It remained in continuous session, adjourning from day to day, until and on April 6th. The election was held April 5th. On April 6th the court adjourned to April 16th. On that day it adjourned to May 7th. On April 26th the notice of contest of election was served on relator. On May 7th court adjourned to May 14th. On that day it adjourned to June 4th, and on that day it adjourned until court in course; all the above sessions being of the March term. On June 6th the regular June term began. The notice of contest that was served on relator April 26th was to the effect that his election would be contested at the June term, which was the first regular term of the court held 15 days after the official count of the ballots and service of notice. The relator contends that the notice should have been to one of the adjourned terms which were May 7th, May 14th, and June 4th. The statute (section 7029, Rev. St. 1899) requires the notice to be given to the contestee within 20 days after the official count of the ballots. In this case the official count was on April 11th. The notice was given April 26th, within the time allowed by law. On that date the court stood adjourned to May 7th, which was less than 15 days from the date of service of the notice, and therefore contestant could not have made his notice returnable to that adjourned term. On April 26th he could not have known that the court would, on May 7th, adjourn to another day in the March term, or that there would be another adjourned term held. The only term he could be charged with knowledge of was the regular June term, and he gave his notice for that term. It would be unreasonable to require him to foresee the action of the court in respect to its adjournments, and unjust to cut him off in his case because he could not know what the future would bring forth. In Adcock v. Lecompt, 66 Mo. 40, and Montgomery v. Dormer (Mo. Sup.) 79 S. W. 913, it was held that the term of court to which the notice in a contested election case should be given was the first term held 15 days after the official count of the ballots, whether a regular, a special, or an adjourned term. But when the language used in those cases is applied to the facts then before the court it will be seen that it had no reference to the facts now before us. In the first of those cases the notice had been given to contestee to appear at a term of the county court to be held on the first Monday in January thereafter, whereas there was no term to be held in January. It was held that that notice was not sufficient. In the second case the October term of the circuit court had adjourned from November 6th to December 15th, and it was so entered on the record of that court. The notice in that case was given for that adjourned term, which was the first term held 15 days after the election. It...