State v. Kramer

• Decision Date: 30 May 1899
• Citation: 150 Mo. 89,51 S.W. 716
• Parties: STATE ex rel. CROW, Atty. Gen., v. KRAMER.
• Court: Missouri Supreme Court

51 S.W. 716

150 Mo. 89

STATE ex rel. CROW, Atty. Gen., v. KRAMER.

Supreme Court of Missouri.

May 30, 1899.

JUSTICES OF THE PEACE — ELECTION — TIES — CONSTITUTIONAL LAW.

Const. 1875, art. 6, § 30, provides that a tie vote for judges of courts of record shall be determined as prescribed by law; and section 40 has a similar provision as to clerks of courts of record. Section 37 authorizes the election of justices of the peace, but does not provide how a tie vote shall be decided. Held, that such omission was not unintentional, and hence so much of Rev. St. 1889, § 6099, as authorizes county courts to "decide" in case of a tie vote for justices of the peace, and of section 6092 conferring on the mayor of St. Louis the powers of the county court relating to justices of the peace as authorizes the mayor to decide in case of such tie, are unconstitutional.

In banc. Quo warranto by the state, on the relation of Edward C. Crow, attorney general, against Siegmund L. Kramer, certified from the St. Louis court of appeals. Writ granted.

This is a proceeding by quo warranto instituted in the St. Louis court of appeals by the attorney general, in his official capacity, to oust respondent from the office of justice of the peace for the Fourth district of the city of St. Louis. The return of the respondent shows that at the general election in November, 1898, respondent and James Griffen were the only candidates for said office, and that the election resulted in a tie vote, each receiving 3,766 votes; that the board of election commissioners certified this result to the circuit court, which in turn certified it to the mayor of that city, who commissioned respondent to said office. The power of the mayor is alleged to be complete, under sections 6099, 6092, Rev. St. 1889. The relator demurred to the return. The St. Louis court of appeals held that there is a constitutional question involved in the case, and hence certified the case to this court.

E. C. Crow, R. T. Brownrigg, and Jesse A. McDonald, for relator. Fisse & Kortjohn, for respondent.

MARSHALL, J. (after stating the facts).

Respondent bases his right and title to the office in question upon the commission issued to him by the mayor of St. Louis, and claims that the mayor had full power to do so, under sections 6099, 6092, Rev. St. 1889, and that section 6099 is a constitutional enactment, as interpreted by this court in the case of Lewis v. State, 12 Mo. 128.

The constitution (section 37, art. 6) provides, "In each county there shall be appointed or elected, as many justices of the peace as the public good may require, whose powers, duties, and duration in office shall be regulated by law." The constitution makes no provision for determining the election in case of a tie vote for justice of the peace, but the general assembly has enacted section 6099, Rev. St. 1889, which is as follows: "Wherever two or more persons shall have an equal number of votes for justices of the peace for any township, or there is a contested election, the county court shall decide the same." The general assembly, by section 6092, Rev. St. 1889, divided the city of St. Louis into 14 districts for the election of justices of the peace, and provided, "And all powers and duties now conferred by law on the county court and county clerk, respectively, relating to justices of the peace, shall, in the city of St. Louis, be vested in the mayor and city register," etc.; and it is claimed that as the power to "decide" in case of a tie between two candidates for justice of the peace is vested in the county court, by section 6099, and as the powers and duties of the county courts relating to justices of the peace are, in St. Louis, vested in the mayor, by section 6092, the mayor had full authority to decide the tie by appointing respondent, and that section 6099 has been held to be a constitutional enactment, in the Lewis Case, cited.

Similar questions have arisen in other jurisdictions, to which reference is here made, to throw light upon the constitutional and statutory provisions in our state hereinafter discussed.

In Indiana the constitution provides that all elections shall be by ballot. Const. art. 2, § 13. The statutes (section 4736, Rev. St. 1881) provide that in case of a tie the judges of election shall "determine by lot the person entitled to the office." This statutory provision has been held constitutional, and not violative of the provision of the constitution requiring all elections to be by ballot. Johnston v. State, 128 Ind. 16, 27 N. E. 422; Wills v. State, 128 Ind. 359, 27 N. E. 423; Kimerer v. State, 129 Ind. 589, 29 N. E. 178. Consult, also, State v. McMullen, 46 Ind. 307.

In Oregon the statute provides that, in case of a tie, it shall be settled by lot. In Dunham v. Hyde, 30 Or. 385, 48 Pac. 422, it was held that a town recorder had no power under this statute to have a tie between two candidates for town marshal settled by lot, but the constitutionality of the statute was not discussed or decided.

In New Jersey the statute (Revision, p. 1201, § 45) provides that in case of a tie for a municipal office the town committee shall "elect between those having an equal number of votes unless they deem a special town meeting for those purposes advisable, and in that case they shall have power to call such special town meeting," etc. In State v. Boden, 51 N. J. Law, 114, 16 Atl. 58, it was held that, after the town committee had ordered a special election, it could not reconsider its action and settle the tie by electing one of those having an equal number of votes. The constitutionality of the statute was not passed upon.

In State v. McKinnon, 8 Or. 493, it was held that in case of a tie neither candidate is elected, and neither can enter into office until the tie is settled by lot as the statute provides; but, although the constitution of that state (section 16, art. 2) provides that in all elections the person receiving the highest number of votes shall be declared elected, the constitutionality of the statute was not called in question or decided.

In Webster v. Gilmore, 91 Ill. 324, it appeared that the parties litigant had received an equal number of votes for the office of supervisor of the town, and that "lots were thereupon drawn, and Gilmore drew the successful lot." Webster contested the election, but no question as to the constitutionality of the statute was raised or decided.

The statute of Michigan (Comp. Laws 1871, § 136) provides that in case of a tie "such persons shall draw lots for election to such office," etc. In People v. Robertson, 27 Mich. 116, it was held that such settling of a tie did not preclude an inquiry by the attorney general, on the relation of the losing party in the drawing, into the legality of votes cast at the election. The constitutionality of the statute was not passed upon, although section 3 of article 10 of the constitution, which requires a register of deeds (the office in question in that case) to be chosen by the electors, is quoted, and the words "chosen" and "electors" are emphasized and italicized. In People v. Sutherland, 41 Mich. 177, 1 N. W. 927, it appeared that there had been a tie, which had been settled by the parties drawing lots, but the constitutionality of the statute was not discussed or decided.

In Kentucky the statute requires the examining boards, in state, district, and county elections, to cast lots in case of a tie vote. In Hammock v. Barnes, 4 Bush, 390, this statute was held not to be applicable to ties in municipal elections. The constitutionality of the statute was not decided.

In State v. Adams, 2 Stew. (Ala.) 231, it appeared that the election for sheriff had resulted in a tie, and that the sheriff, as the supervisor of election, had cast the deciding vote. The court discussed the effect of a constitutional provision which would deprive the sheriff of his right to vote except in case of a tie, although there was in fact no such provision of the constitution pointed out in the case, but held that there was no authority under the statute for the sheriff to break the tie by casting the deciding vote, and that in case of a tie no one was elected, and that a vacancy existed, which the governor had properly filled by appointment.

In Erdman v. Barrett, 89 Pa. St. 320, it appeared that Erdman and Folwell received an equal number of votes for the office of prothonotary. Barrett, the hold-over incumbent, claimed that, as the election resulted in a tie, he was entitled to hold over until the next election. Erdman instituted a proceeding against Barrett to test his right to hold the office. The court dismissed the proceeding, holding that in case of a tie either party might contest with the other the election, but that the incumbent (not being a party to the tie) was not a necessary or proper party to such a proceeding, and his right to the office could not be questioned by either party to the tie. This was all that was decided in that case.

In Patterson v. People, 65 Ill. App., loc. cit. 655, it was decided that: "In case of a tie in the election of any city officer, it should be determined by lot which candidate shall hold the office. Section 58, c. 24, p. 254, Hurd's Rev. St." The constitutionality of the statute was not decided.

In the contested election case of Reed v. Cosden, 1 Clarke & H. Elect. Cas. 384, it appeared that the parties had received an equal number of votes as representative in congress from the state of Maryland, and that the governor and council, acting under a law of the state of Maryland, "proceeded to decide between them which should be the representative," and accordingly issued a certificate of election to Cosden. The constitutionality of the state statute was challenged. The constitution of Maryland directed that all elections should be by ballot. The committee of elections of the house of representatives of the Seventeenth congress, which was composed of Messrs. Sloane, of...