State v. Wurdeman

• Citation: 295 Mo. 458,245 S.W. 551
• Decision Date: 27 November 1922
• Docket Number: No. 23839.,23839.
• Parties: STATE ex rel. COPELAND v. WURDEMAN Judge.
• Court: United States State Supreme Court of Missouri

245 S.W. 551

295 Mo. 458

STATE ex rel. COPELAND v. WURDEMAN Judge.

No. 23839.

Supreme Court of Missouri, in Banc.

November 27, 1922.

Prohibition by the State, on the relation of John W. Copeland, against Gustavus A. Wurdeman, Judge of the Circuit Court of St. Louis County. On motion by relator for judgment on the pleadings. Rule made absolute.

Relator, who was one of the judges of election at the Wellston precinct in St. Louis county, Mo., at the general state primary held on the 1st of August, 1922, brings this action in prohibition against Judge Gustavus A. Wurdeman, one of the judges of the circuit court for and within St. Louis county, to prohibit him from further proceeding with the enforcement of a certain subpœna duces tecum, issued by said Wurdeman, for a grand jury, then in session in his court, investigating alleged frauds in said primary. It is averred that two Democratic candidates for central committeemen did on August 12th file with the canvassing board affidavits, charging fraud and misconduct in the court and return of the votes of this said precinct and others.

Relator was also a qualified voter in St. Louis county, as per the petition filed, and as such cast his vote in Wellston precinct aforesaid. He seeks to prohibit the execution of the subpœna duces tecum aforesaid, which was one calling for the production of—

"the ballot boxes and contents thereof, ballots voted, and returned as the ballots of the voters at the hereinafter" mentioned election and the sack in which they are contained, tally sheets, poll books, and the official returns made by the judges and clerks of election in connection with the primary election held in the county of St. Louis, Mo., on the said 1st day of August, 1922, in the following precincts of said county, to wit."

This is the character of the subpœna duces tecum as submitted by the respondent's return. It covers Wellston precinct, at which relator votes, and acted as judge of election. The said subpœna was directed to William Siebel, county clerk, who had charge of the instruments called for by the subpœna. In the return the learned respondent says:

"Respondent admits that he is acting under authority of section 5403 of article 2, chapter 34, as appears in Extra Session Act 1921, page 70, but denies that said act is in violation of and contrary to the provision of section 28 of article 4 of the Constitution of Missouri, and denies that said act is contrary to and in violation of the provisions of section 9 of article 5, and of section 55 of article 4, of the Constitution of the state of Missouri.

Respondent admits that said act was passed at an extraordinary session of the Legislature of Missouri 1921, convened by Proclamation of the Governor of the state of Missouri, but denies that the Governor did not state specifically any matters justifying the passing of said act.

Respondent for further return states that the subpœnas ordered to be issued by him as herein before set out were legal and valid, and were issued under the authority of section 5403, Revised Statutes of Missouri, 1919, as it appears in special or Extra Session Laws 1921, page 70; that said act confers special authority and jurisdiction upon this respondent as judge of the circuit court to issue a subpœna duces tecum of the kind hereinbefore described; that said law was enacted at the extra session of the Legislature, 1921, as aforesaid, was within the scope of the Proclamation of the Governor of Missouri convening said Legislature into extra session, is constitutional, and valid.

"Respondent further states that since the making of the order heretofore issued herein respondent has refrained from action in the premises, and stands ready to comply with any further orders made by this court.

"Wherefore, having made full returns to the order to show cause, respondent prays that the provisional rule in prohibition heretofore issued herein be dissolved, and that respondent go hence with his costs."

The charge in the petition was that the issuance of the subpœna was violative of constitutional provisions, and that if issued under the act of 1921, mentioned in the return, then such act violated the Constitution, in particulars named. The application avers that the learned circuit judge acted under the act of 1921, supra, and this is admitted by the return. It stands conceded that county committeemen were elected and voted for in this primary election. As to such it is claimed that it was an election and not a primary.

For the purpose of an opinion, the foregoing general outline will suffice. Details both of pleadings and facts can well be left to the opinion.

Jos. C. McAtee, of Clayton, for relator.

Jesse W. Barrett, Atty. Gen., Randolph Laughlin and Amandus Brackmann, Sp. Asst. Attys. Gen., and Fred E. Mueller, Pros. Atty., of Clayton, for respondent,

GRAVES, J. (after stating the facts as above).

Relator having filed a motion for judgment on the pleadings, the facts pleaded in the return (where they contravene those of the petition) stand as the facts of the case. In this case, however, it is not so much disputed facts, as it is contentions as to the law. The facts necessary are not in dispute. There were members of the county committee to be elected, and candidates for these places were upon the ballots sought to be brought before the grand jury by the process asked to be prohibited herein. Not only so, but such candidates were voted for at Wellston and the other precincts covered by the subpœna, and returns were made, declaring the persons elected as members of the county committee. These positions or offices are recognized by the law, and we need not further define them. The particular committeemen mentioned in this action are those from Central township, wherein by affidavits filed it appears that Julia W. Billups and John Commerford were defeated for members of the Democratic county committee, and Al G. Bruce and Frank Johnson were declared the elected members. This appears from affidavits filed before the canvassing board, copies of which are filed and made a part of the petition herein by reference and attachment thereto. However, the only purpose of these allegations in the petition is to show that the said primary election was more than a...