State v. Wurdeman

• Decision Date: 03 July 1924
• Docket Number: No. 24952.,24952.
• Citation: 264 S.W. 402
• Parties: STATE ex rel. DARST et al. v. WURDEMAN, Circuit Judge.
• Court: Missouri Supreme Court

264 S.W. 402

STATE ex rel. DARST et al. v. WURDEMAN, Circuit Judge.

No. 24952.

Supreme Court of Missouri, in Banc.

July 3, 1924.

Proceeding by the State of Missouri, on the relation of James W Darst and another, against Gustavus A. Wurdeman, Judge of the Circuit Court of St. Louis County, for a writ of prohibition. Preliminary rule discharged.

J. W. Jamison, of St. Louis, and James E. Hereford, of Clayton, for relators.

Henry Kortjohn, sir., of St. Louis, and Ralph & Baxter, of Clayton, for respondent.

GRAVES, C. L.

Original action in prohibition. Relators were legally qualified voters at the general election held in this state, and in St. Louis county, in November, 1922. They were, at said times and at the application for our writ, citizens of and legal voters in the sundry voting precincts of St. Louis county and voted at said election. The record here consists of the application made for our writ, respondent's return made to our preliminary rule, and a motion for judgment upon the pleadings. In this situation we must go to the return of respondent, who is judge of the circuit court of St. Louis county, presiding in division 2 of said court, for the facts of the case, except where there are undenied allegations in the petition for the writ. An undenied allegation in the petition would stand as confessed. The return filed consists of many specific admissions, and at least some denials of facts pleaded in the petition. It appears to us, however, that the learned circuit judge has attempted to present all the facts in the case, either through specific admission of the facts charged in the petition of relators, or by a statement of facts made in the return.

The return admits: (1) That relators were qualified voters at the general election held in St. Louis county, Mo., on November 7, 1922; (2) that William Seibel was county clerk of the county, and as such prepared the legal and usual blanket ballots for such election, and distributed the same in proper manner to the several voting precincts; (3) that upon each of said ballots were four separate tickets, headed, respectively, "Republican Party," "Democratic Party," "Socialist Party," and "Socialist-Labor Party"; (4) that on these tickets appeared the names of the nominees of said parties for offices to be filled, running from United States Senator to and including state, county, and township officers; (5) that upon the Republican Party ticket there appeared the name of Fred E. Mueller for prosecuting attorney of the county, and the name of Walter E. Miller for clerk of the county court; (6) that upon the Democratic Party ticket there appeared the name of Adam Henry Jones for prosecuting attorney of said county, and the name of Edward Tiffin for clerk of the county court; (6) that where the voter voted a "straight party ticket" it was done by placing a (X) mark in the circle under the party name, and, if the voter voted a "split ticket," marks were appropriately placed, or attempted to be placed, for that purpose; (7) that by the returns made by the precinct election officials as cast up by Seibel, the county clerk, and two justices of the peace of the county, It appears that both Zones and Tiffin had been elected, and they were each given a certificate of election to the office to which each was elected, and later assumed their respective offices.

The return then alleges that Mueller gave a notice of contest as against Zones, and Miller gave a notice of contest against Tiffin. Services of the notices were duly made upon contestees, and in due time each of the contestees gave notice of contest of designated votes for contestant. In other words there were two contested election cases instituted in due form pending in the circuit court of St. Louis county. That of Mueller v. Jones was assigned to division 2, and is the case which we have in hand now. The case of Miller v. Tiffin fell to the other division of the court. In each case application for a recount of the ballots was made and an order made therefor. The respondent in this case has set opt in his return both the notice of contestant and the notice of contestee, so that these become a part of the return. Both cases evidently took the same course, for it is stipulated that the result of the prohibition proceeding in the Mueller-Jones Case shall determine a like proceeding in the other case.

It appears that Seibel, the county clerk, made the recount, and this included every vote cast in the county. It further appears that the recount was had for both offices at the same time, and when the county clerk made out his report of the recount he made duplicate copies, and filed one in each case; so that the report made in each particular case not only shows the condition of the ballots as to one office, but as to both. We shall not go into the details of these reports at this point.

In the case of Mueller v. Zones, upon the incoming of the county clerk's report, the contestee filed a motion to suppress such report for divers reasons stated therein, and this motion to Suppress is contained in the return made by the learned respondent. With this motion pending and undetermined, the relators herein, who are not contestees or contestants in either case, but merely voters at such election, seek to probihit the use of such report, because (for many reasons, as they allege) it destroys the secrecy of their ballots. They urge that no charge of fraud or improper voting is made as to their ballots, but that the persons for whom they voted would be made public by the use in evidence of the report made by the county clerk. This is a general outline. The more specific facts must be left to the opinion under the several points urged.

I. The relators in this case are mere citizens and voters, and not parties to the contest proceedings, in which it is alleged the court is exceeding its jurisdiction. At first blush their right to proceed appeared to be a question. At common law the keeping of the courts within their jurisdiction was a matter of great public concern, and one in which not only the sovereign, but the subjects were alike interested; so that, when the common law has not been abrogated, it is by no means necessary that the applicant for the writ should be a party to the suit or proceeding against which the writ is sought. See note to State v. Superior Court (Wash.) 111 Am. St. Rep. p. 970, whereat the authorities are collated.

In this state we have ruled that proceedings in prohibition in the Supreme Court are governed by the general...