State v. Speer

• Decision Date: 19 June 1920
• Docket Number: No. 21879.,21879.
• Citation: 223 S.W. 655,284 Mo. 45
• Parties: STATE ex rel. WAHL et al. v. SPEER et al.
• Court: Missouri Supreme Court

223 S.W. 655

284 Mo. 45

STATE ex rel. WAHL et al. v. SPEER et al.

No. 21879.

Supreme Court of Missouri, in Banc.

June 19, 1920.

Motion for Rehearing Denied July 13, 1920.

Proceeding for mandamus by the State, on the relation of James S. Wahl and others, against Everton Speer and others, Judges of

County Court of Pemiscot County. Peremptory writ ordered to issue.

Shepard & Oliver and Ward & Reeves, all of Caruthersville, for relators.

McKay & Medling and Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondents.

GOODE, J.

This is a proceeding to compel the respondents, who are the judges of the county court of Pemiscot county, to carry into effect the result of an election held September 9, 1919, at the usual voting precincts throughout the county, to ascertain the will of the qualified voters concerning a proposition to incur a county debt of $150,000, "for the purpose of building, equipping, and furnishing a courthouse in the city of Caruthersville, * * * and purchasing such additional ground, if any, as may be deemed to be for the best interest of said county; and to provide a proper and suitable site for said courthouse, * * * and to issue bonds of Pemiscot county, Mo., therefor, in the total sum of $150,000, bearing interest at the rate of 5 per cent. per annum," payable in enumerated installments. The proceedings which led up to the order for the election are conceded to have been regular, except in the particulars hereinafter mentioned; and the result of the vote, on the face of the returns made by the officers of the voting precincts was that more than two-thirds of the qualified voters who voted favored the proposition. But the county court refused to issue the bonds or to levy an annual tax to pay the interest and create a sinking fund to pay the principal in 20 years. After finding the proposition had carried by the requisite majority, the county court, on November " 5, 1919, entered of record the reason why it refused to carry out the will of the voters, saying that upon reconsidering the petition filed by more than 100 qualified voters of the county, requesting the election, and reconsidering the notice for the election as published, the court found:

"The same are and were insufficient, and for that reason such election is invalid, and therefore the court refuses to direct the issuance of the bonds," etc.

In the order for the election said court had held the petition complied with the law.

The return to the alternative writ, after a part of it wherein the defense was set up that the proposition was carried by fraudulent and illegal votes, had been struck out, pleads invalidity of the election for three reasons: First, that it was not conducted in accordance with the requirements of the statutes of the state, known as the Australian Ballot Law, and the particulars in which those regulations are asserted to have been ignored are stated; second, these four propositions were submitted to the voters: to build a new courthouse; to enlarge the old one; to buy land for a site for a courthouse; to furnish and equip the courthouse; third, the pendency in the circuit court of the county of a suit filed in October, 1919, to, enjoin the respondents as judges of the county court and the clerk of said court from issuing bonds or levying a tax under the authority of tile election. That suit was filed by B. P. Allen, and eight other plaintiffs, alleged to be taxpayers of the county. The petition is copied into the return of the respondents to the alternative writ issued in the present case. It attacks the validity of the election, and asks that the county court and the clerk be enjoined from giving effect to it for precisely the facts averred in the return herein, plus the charge that illegal and fraudulent votes entered into the result. The petition for an injunction enumerates the number of the illegal votes charged to have been cast and counted in favor of the debt, and says a lawful majority of two-thirds of the voters did not vote for it. The return says a temporary restraining order or injunction May be issued against the respondents at any time by the circuit court of Pemiscot county, and may be made permanent; that the suit is still pending, and the issues raised in it touching the validity of the election are the same as those raised in the present proceeding; and therefore this cause should not be determined until the other one is decided. The reply to the return denies the averments of particular matters in which the Australian Ballot Law was ignored; denies the election is void, for the reason that more than one proposition was submitted to the voters; denies illegal and fraudulent votes were cast and counted in favor of the proposition; and in connection with this denial pleads an estoppel against the defendants as judges of the county court, for that said court found and adjudged of record the proposition submitted at the election "did well and truly carry by a two-thirds majority of the qualified voters of said county voting at said election." The defense of the suit pending in the Pemiscot circuit court is alleged in the reply, or rather argued, to be no defense to this action, since the defendants had refused, and put their refusal on record, to issue the bonds and comply otherwise with the result of the election after the suit for an injunction was filed, but before the respondents had been served with process therein.

This agreement about the facts was made:

"It is hereby agreed that this cause may be submitted upon the following statement of facts as evidence in this case:

"(1) That the officers upon whom is imposed by law the duty of designating polling places did not at or before the holding of the election mentioned in the pleadings provide at the several polling places any booths or compartments and that at said election no compartments were provided; nor was any guard or rail constructed so as to prevent persons approaching within five feet of the ballot boxes or the booths or compartments designed as a place wherein the voter could prepare his ballot.

"And it is further agreed that the clerk of the county court of said Pemiscot county did not cause to be printed in large type on cards, or otherwise, instructions for the guidance of electors preparing their ballots, and no cards of any kind were furnished the judges of the election in each election district, nor were any notices posted in any place provided for the preparation of ballots, nor in or about the polling places.

"It is further admitted that the injunction suit mentioned in the return to the alternative writ was instituted as alleged and is still pending in the circuit court.

"The above and foregoing supplemental abstract, supplementing the prior abstract, contains the full and complete record of the proceedings, and shows the status of the case at the present time, before this court."

The first defense to be noticed is that when this proceeding was begun, a suit brought by several taxpayers of the county was pending in the Pemiscot circuit court against these respondents as judge of the county court and the clerk, to contest the election for the bonds on the identical grounds set up in respondents' return, except that in the return specific allegations of fraud in the various precincts are not made, but instead the petition in the injunction suit, which contains such allegations, is set out. Relators say that suit does not stand in the way of this one, because it was filed after the respondents had refused, by an entry of record, to carry into effect the result of the election. But the refusal was not for the reason that the result was obtained by fraudulent voting. Moreover, the effect of the previous refusal of the county court on the suit in equity would be for the determination of the circuit court, if it possesses jurisdiction of the case, which is the question to be decided here.

It used to be held, and some courts yet accept the rule, that as mandamus is a high prerogative writ, the pendency of another action cannot bar it. 3 Black. Comm. 110; Calaveras Co. v. Brockway, 30 Cal. 325. The better rule is that, mandamus having now come to be treated as in the nature of an ordinary civil action, the pendency of a prior suit between the same litigant parties, and involving the same subject-matter, constitutes a bar, unless adequate relief cannot be obtained in the prior suit. State v. Matley, 17 Neb. 564, 24 N. W. 200 ; People ex rel. v. Wiant, 48 Ill. 263.

The parties plaintiff in the equity suit are not the persons who are the relators in this action ; but they are from the same class ; that is, are taxpayers of the county, and in the exercise of a judicial discretion it would be well to withhold a peremptory writ in the present case until the suit in the circuit court has been determined, if that court has jurisdiction of the case ; a question we will proceed to consider.

The defense of the pendency of a prior suit in equity was urged in a contest proceeding in this court, and ignored in the opinion. It must have been disregarded because this court thought the lower court was without jurisdiction of the suit in equity, as the opposite opinion was held by a dissenting judge. State ex rel. Memphis v. Hackman, 273 Mo. 670, 202 S. W. 7. The argument is that, because an election of this kind may entail on taxpayers an increased burden, equity will take jurisdiction where fraud is charged, if no statutory mode of contesting the result has been provided ; and in a few states the courts of equity have entertained jurisdiction of bills to contest elections under those circumstances. In most of the cases the controversy was over the removal of a county seat, and the proposition to remove was alleged to have been carried by the fraudulent receiving and counting of illegal votes by the election officers. Boren v. Smith, 47 Ill. 482 ; People v. Wiant, 48 Ill. 263 ; Sweatt v. Faville, 23 Iowa, 321; ...