State v. Oliver

• Citation: 163 Mo. 679,64 S.W. 128
• Parties: STATE ex rel. YOUNG v. OLIVER et al.
• Decision Date: 18 June 1901
• Court: Missouri Supreme Court

64 S.W. 128

163 Mo. 679

STATE ex rel. YOUNG v. OLIVER et al.

Supreme Court of Missouri.

June 18, 1901.

ELECTIONS — CONTEST — EXAMINATION OF BALLOTS — SERVICE — APPEARANCE AND WAIVER.

1. Where the contestee in an election contest appeared before the clerk of the circuit court, and filed a motion requiring the contestor to give security for costs, and moved that the notice of contest be made more definite, such appearance cured any defects in the service on him.

2. Const. art. 8, § 3, declares that in all cases of contested elections the ballots may be counted and examined under such regulations as may be prescribed by law. Rev. St. § 7046, relative to the contest of any election in a county, provided that, on a day fixed, the county clerk shall, in the presence of the contesting parties and their attorneys, open the ballots. Section 7047 provides the contesting parties may examine the ballots, and that the county clerk shall make return to the court in which the contest is pending of all facts which either party may desire which appear from the ballots. Held, that on an examination on an election contest the parties have a right to examine the ballots only, and not to compare them with the voting lists.

3. On an examination of the ballots, the parties have no right to make notes.

4. Where want or excess of jurisdiction appears on the face of the record, no necessity exists to suggest such fact to the trial court before seeking prohibition from a higher tribunal.

In banc. Prohibition by the state, on the relation of James K. Young, against William C. Oliver and others, prohibiting proceedings in an election contest over the office of county surveyor of Nodaway county. Rule nisi made it absolute.

The following return was made by Gallatin Craig, judge of the Nodaway county circuit court, on the application for writ of prohibition:

"Whereas, a provisional writ of prohibition has heretofore been issued in the above-entitled cause by Hon. James B. Gantt, one of the judges of the supreme court of the state of Missouri, in which writ the following order was made: `We do therefore prohibit you, the said Gallatin Craig, judge of the Nodaway county circuit court, firmly enjoining you that you do not further proceed in the premises in the said election contest case, nor further proceed in any way touching the premises whereof the said James K. Young complains the said William G. Oliver hath drawn him into before you, nor that you attempt anything that may tend to the damage of the said James K. Young, or to the prejudice of the state of Missouri, or in derogation of the laws thereof, until the further order of the supreme court of this state;' and whereas, the further order was made in said writ, commanding the said Gallatin Craig to appear before the supreme court of the state of Missouri `to be held at Jefferson City on the 21st day of May, 1901, then and there to show cause, if any you have, why you should not be absolutely prohibited to hold cognizance of and to prosecute the suit aforesaid': Now, therefore, comes Gallatin Craig, judge of the Nodaway county circuit court, in obedience to said writ and command, and says that such writ should not be made permanent, for the reasons: First. The papers, as shown by the certified transcript of the record in said cause, show that the undersigned judge of the Nodaway county circuit court has full jurisdiction and cognizance of said election contest. Second. Insufficiency of notice of contest cannot be raised by writ of prohibition. `As to insufficiency of notice of contest, * * * the writ of prohibition goes only to restrain the assumed exercise of jurisdiction where none exists, and not to its erroneous or irregular exercise. It cannot issue where other adequate remedies exist, nor be made to perform or usurp the functions of an appeal.' Third. Plaintiff in this application, contestee in contest case, appeared in the contest proceeding in the circuit court by filing motion to require contestant to make his notice more specific, and also by motion to require contestant to give security for costs. Fourth. The plaintiff in this application made no objection nor took exceptions to any order or proceeding made or taken by the judge of the circuit court in the contest cause. Fifth. Plaintiff in this application has in no way raised or questioned the jurisdiction of the circuit court to hear and determine the questions involved in said contest. It is true that he filed his motion to quash the sheriff's return of service, but, before filing this motion, he had filed a motion in the circuit court to require the contestant to make his notice of contest more specific, and, on the court's overruling said motion to quash, no objection was made or exception saved to said order. Sixth. Plaintiff is mistaken in his application for this writ in stating that he had applied to the judge of the circuit court for temporary injunction restraining contestant, Oliver, and his attorneys from comparing the ballots with the list of voters, as shown by the poll books, etc. No such application was ever made. The application referred to was an application for injunction to restrain the county clerk from certain acts regarding the counting, comparison, etc., of ballots, and he was the sole defendant. The contestant, Oliver, was not a party to said injunction proceeding when said order of temporary injunction was made, but afterwards, on his own motion, was made a party defendant; but the question of his rights was never presented in said application for injunction. Said injunction was dissolved for the reason that the court was of the opinion that the matters involved in said application were not proper matters to be controlled by injunction. In this connection, it is probably proper to call the attention of the court to the fact that the order that plaintiff in his application herein says was made in the premises, directing the manner of procedure, was not made in the injunction proceeding, but was made in the contest case on application of contestant to strike out the county clerk's return and for order to proceed to count the ballots. Said order referred to was made for the purpose of requiring the contestant and his attorneys to make no further examination of the ballots than was necessary for the issues in the case, and to prevent them from examining such ballots, only so far as the office being contested was involved. At the time of making this order, the record discloses that neither an objection nor an exception was made or saved thereto. Seventh. If it is intended by the provisional writ herein granted to prohibit the court from exercising jurisdiction in making orders in the premises rather than to prohibit the consideration of the cause at all, it is respectfully submitted that all orders made in the premises by the judge of the circuit court are warranted by the universal practice in such causes, both in the circuit and appellate courts of this state. This honorable court has so far recognized the practice that has substantially been followed in this case that it has, by strong reasoning, carried the right to open the ballots, etc., to officers to whom the right or duty had not been expressly granted. And again, it has declared that `the count, examination, and comparison is really made by the parties to the contest and their attorneys.' The judge of the circuit court of Nodaway county, in making all orders made in this cause, did so recognizing the interpretation placed on the constitution and legislation in pursuance thereof by the supreme court of this state as the controlling law of the land on the subject of election contests. Should this honorable court now conclude that the numerous cases that have been disposed of, involving the construction of the election laws, have been wrongfully and unlawfully conducted, and that a new construction should be given to the constitutional provision and legislative enactments relating to election contests, then the judge of the circuit court of Nodaway county would cheerfully and willingly follow such construction. But it is respectfully submitted that, before the extraordinary writ of prohibition should be exercised to prevent the circuit judges of the state from following and recognizing the decisions of the highest courts of the state as their guide in the determination of causes of which they have jurisdiction, the supreme court should be very careful in ascertaining that the refusal of the writ would inflict upon the person applying for the same an injury which could not be redressed in any other way. Especially is this true in a cause where no objection is made or exception saved to the exercise of jurisdiction, either as to the subject-matter in issue, or as to the assumption of jurisdiction of some matter arising in the cause, but not involving original jurisdiction. Having complied with the demands of said provisional writ, it is immaterial to the undersigned, as judge of said Nodaway county circuit court, what orders may be made by your honorable body in the premises."

J. W. Tompson and John M. Dawson, for plaintiff. G. B. Rosenberry and P. L. Growney, for defendants.

SHERWOOD, P. J.

This is an election contest over the office of county surveyor of Nodaway county. The return of respondent County Clerk Cordill, made to the respondent Circuit Clerk Kelley, shows the existence of a peculiar state of facts. Kelley, upon petition presented, had on January 8, 1901, made an order on the county clerk, the concluding portion of which is the following: "Therefore you are hereby commanded to open, count, and compare with the list of voters and examine the ballots in your office which were cast at the election in contest, and to certify the result of such count, comparison, and examination, so far as the same relates to the office in contest, to this court, all as provided by sections 7045-7047, Rev. St. 1899." In his first return made...