State v. Reynolds

• Decision Date: 25 October 1905
• Citation: 190 Mo. 578,89 S.W. 877
• Parties: STATE ex rel. BENTLEY v. REYNOLDS, Judge, et al.
• Court: Missouri Supreme Court

89 S.W. 877

190 Mo. 578

STATE ex rel. BENTLEY v. REYNOLDS, Judge, et al.

Supreme Court of Missouri.

October 25, 1905.

1. ELECTIONS — PRIMARY ELECTIONS — CONTESTS.

Sess. Acts 1901, p. 162, § 23, providing that any action or neglect of a political convention or committee, or election officer or board, with regard to the right of any person to participate in a primary election, convention, etc., shall be reviewable by the appropriate remedy of mandamus or certiorari, and that the courts shall have summary jurisdiction, upon complaint of any citizen, to review such action or neglect, does not authorize the courts to entertain a primary election contest.

2. CERTIORARI — SCOPE OF REVIEW — LIMITATION BY RECORD.

The writ of certiorari brings up only the record proper of the tribunal to which it is addressed, and does not bring up the evidence on which the judgment of that tribunal is founded.

3. SAME — OFFICE OF WRIT — JURISDICTIONAL ERRORS.

The office of a writ of certiorari is to give relief to an injured party in a cause where the trial court has acted without jurisdiction or in excess of its jurisdiction, or where it appears on the face of the record proper that the trial court has rendered a judgment which it had no right in law to render; but it cannot be used as a substitute for an appeal or writ of error.

4. SAME — MATTERS REVIEWABLE.

Ballot boxes containing the ballots, keys, and reports of election officers are not judicial records, such as may be reviewed by a writ of certiorari.

Lamm, J., dissenting.

In Banc. Petition for writ of prohibition by the state, on the relation of E. P. Bentley, against Matt G. Reynolds, judge, and others. Writ awarded.

Crawley & Jamison, for relator. Thos. P. Bashaw and P. T. Barrett, for respondents.

VALLIANT, J.

This controversy arose over the result of a primary election held in St. Louis March 4, 1905, wherein Bentley, the relator, and John R. McCarthey, one of the respondents herein, were rival candidates for the nomination by the Democratic Party for the office of member of the house of delegates from the Twenty-third Ward. The election was held under the statute of 1901 (Sess. Acts 1901, p. 149), relating to primary elections in cities of 300,000 inhabitants and over. The result of the election, according to the returns of the judges and clerks made to the election commissioners, was that Bentley was nominated, but before the election commissioners issued the certificate of election to him McCarthey filed a petition in the circuit court against the election commissioners and the judges and clerks of the election, averring, in substance, that the returns were false, and that he had in fact received the majority of the votes, and was entitled to the certificate of nomination. The prayer of the petition was that "a writ of certiorari or review according to law" issue, directed to the election commissioners and the judges and clerks of the election, requiring them to bring into court the ballot boxes, keys, ballots, poll books, and returns, etc., to be reviewed and recounted, and the judgment of the court to be rendered, showing which of the two rival candidates was elected or nominated. Thereupon, after due notice to the defendant officials, the circuit court made an order requiring the election commissioners to bring into court, on a day named, the ballot boxes, keys, ballots, poll books, returns, etc., of the election judges and clerks, and also made an order appointing four unofficial persons as referees, to whom the ballot boxes and keys should be delivered, and who were ordered by the court to open the boxes, count the ballots, observing certain directions as to detail, and make report to the court of the result. Bentley was not made a party to that suit in the circuit court, but after those proceedings he came to this court with his petition, setting up in general the facts above stated, with other facts of more specific detail, and prayed that the circuit court be prohibited from further proceeding in that cause. On filing his petition a preliminary rule to show cause was entered, and after return the cause came on for final hearing in this court on the petition, return, and motion of relator for judgment on the pleadings; and final judgment was entered on March 21, 1905, ordering that a writ of prohibition issue as prayed. As this proceeding was had so shortly before the city election to which it related, there was not time enough to write an opinion, and therefore the announcement was made, when the judgment was rendered, that the opinion would be delivered later, as the business of the court would permit.

The case involves a consideration of the primary election law of 1901, applicable to cities of over 300,000 inhabitants (Sess. Acts 1901, p. 149), particularly of section 23 of the act, which respondents think confers on the circuit court jurisdiction to do what it did in this case. That act appears to have been, in the main, copied from a statute of New York of 1896 (Laws 1896, p. 893, c. 909), which has been carried into Heydecker's Gen. Laws 1901, vol. 4, p. 4331, and following. But in copying that statute our lawmakers followed the original so closely that they failed to make provision for the difference that exists between the system of election laws and the control of the courts over elections in New York and the system and control, in that respect, in Missouri. Section 9, art. 8, of our state Constitution, declares that: "The trial and determination of contested elections of all public officers, whether state, judicial, municipal, or local, except governor and lieutenant governor, shall be by courts of law, or by one or more of the judges thereof. The General Assembly shall by general law, designate the court or judge by whom the several classes of election contests shall be tried and regulate the manner of trial and all matters incident thereto." Under that mandate, the General Assembly has enacted statutes designating the court or judge by whom the several classes of election contests shall be tried, and regulating the manner of trial and matters incident thereto. Those statutes, however, do not cover contests of primary elections, and unless section 23 of the act of 1901, now under discussion, covers the case, there is no law for the trial of a contested primary election. That section is as follows:

"Sec. 23. Jurisdiction of and Review by the Courts. — Any action or neglect of the officer or members of a political convention or committee, or of any judge or clerk of primary election, or of any public officer, or board, with regard to the right of any person to participate in a primary election, convention or committee, or to register, or with regard to any right given to, or duty prescribed for, any elector, political committee, political convention, officer or board, by this act, shall be reviewable by the appropriate remedy of mandamus or certiorari, as the case may require. In addition thereto, the Supreme Court of this state, or any justice thereof, or the court of appeals having jurisdiction over any city to which this act is applicable, or any judge of such court of appeals, or the circuit court of any such city, or any judge of such circuit court, shall have summary jurisdiction, upon complaint of any citizen, to review such action or neglect. Such complaint shall be heard upon such notice as the said court or justice or judge thereof shall direct. In reviewing such action or neglect, the court or justice or judge shall consider, but need not be controlled by any action or determination of the regularly constituted party authorities upon the questions arising in reference thereto, and make such decision and order as, under all the facts and circumstances of the case, justly [justice] may require. For any of the purposes of this section, service of a writ of mandamus, certiorari, order or other process of such court, or justice or judge thereof, upon the chairman or secretary of such convention, committee or board shall be sufficient."

It is in the first sentence of that section that the attempt is made to subject certain acts of the election officers to review, "by the appropriate remedy of mandamus or certiorari." The act recognizes that the remedy afforded must be appropriate to one or the other of the writs named. It authorizes the use of either of those writs only when it is appropriate, and it does not undertake to amend the law in reference to either of those writs by giving it a function it did not before possess. Therefore, when the nature of the case is such that the common-law writ of mandamus or certiorari is appropriate, the statute says it may be used, but the statute goes no further. But section 23 does not purport to cover a case of contested election with either of those writs, or to bring every action of the election officer under review. The language is: "Any action or neglect of the officers * * * with regard to the rights of any person to participate in a primary election, convention or committee, or to register, or with regard to any right given to or duty prescribed for any elector, political committee, political convention, officer or board, by their act," etc. In other words, if a party has been denied the right to vote at the primary, or denied a seat in the convention or in the committee, or denied the right to register, or any such specific right or duty given to or prescribed for him by that statute, he may have the remedy of mandamus or certiorari when it is appropriate. The next succeeding sentence, which essays to confer summary jurisdiction on certain courts and judges, is limited, also, in its scope to "review such action or neglect"; that is, the action or neglect already mentioned. That is all there is in section 23 on which the claim is made of authority for the circuit court to do what it was asked to do in this case, and it falls far short of conferring such authority.

The plaintiff in...