The State ex rel. Bentley v. Reynolds

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

89 S.W. 877

190 Mo. 578

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

Supreme Court of Missouri

October 25, 1905

Writ awarded.

Crawley & Jamison for relator.

The acts of judges of primary election in receiving and counting ballots are ministerial. "The writ of certiorari is appropriate only to review the judicial action of inferior courts, or public officers, or bodies exercising judicial functions. It is not available to review the action of a public officer or body which is merely legislative, executive or administrative, although it may invoke the exercise of discretion." People ex rel. v. Bush, 22 A.D 363; Matter of Many, 10 A.D. 451; People ex rel v. Austin, 20 A.D. 1. Judges and clerks of election under primary election law, do not exercise judicial functions and are bound to accept vote if elector makes the statutory affidavit. "The voter is judge of his own qualifications, and his conscience for the occasion takes the place of every other tribunal." McCrary on Elections (4 Ed.), sec. 296; Spragins v. Haughton, 3 Ill. 377; Walcott v. Halcomb, 97 Mich. 361. Judges and clerks of election are ministerial officers, and are bound to accept votes of electors who subscribe to statutory oath, and must then count them. Stapleton v. Bell, 119 N.Y. 175; Sherwood v. State, 129 N.Y. 372. Certiorari brings up records and not evidence. People v. Police Board, 39 N.Y. 509. The Supreme Court has no power to issue a writ of certiorari to a board of election commissioners which is not a court in the sense of the Constitution. Carson's case, 5 S.C. 117. Members of political committees, elected under the primary election law, are public officers. People ex rel. v. Kings Co., 164 N.Y. 337. If under the primary election law of Missouri there is any remedy for the recount of the ballots, it is by mandamus to compel the judges and clerks of election to recount the ballots. Matter of Rabbit v. Garrand, 89 A.D. 119 (construing section 11 of the primary election law of New York, which section is identical with section 23, of the primary law of Missouri). Under said law inspectors of election are public officers. Mandamus and not certiorari has always been resorted to in New York where a recount of the ballots has been had. People ex rel. v. Way, 92 A.D. 82; People ex rel. v. Ward, 62 A.D. 531; People ex rel. v. Board, 88 A.D. 185; People ex rel. v Unger, 85 A.D. 249. The court by mandamus will compel the board of convassers to reconvene and publicly take from the ballot boxes ballots rejected as void. People ex rel. v. Ward, supra. At common law contests were tried in courts having general common law jurisdiction through the agency of quo warranto. People v. Pease, 30 Barb. 583. In Missouri, the law regulating contests is a code within itself. State ex rel. v. Spencer, 164 Mo. 23.

Thos. P. Bashaw and P. T. Barrett for respondent.

While there is no other case in this State where a writ of certiorari was awarded under the section relied on in this case, yet our courts have issued such writ in a number of cases of the same general nature. In the case of State ex rel. v. Moore, 84 Mo.App. 11, it was held, in a dramshop license case, that although no remonstrance was filed in the county court, tax-paying citizens who did not sign the petition for the license, should, in the sound discretion of the court, be permitted to make application for a writ of certiorari to test the legality of the license. It goes without saying that in such a case the writ would bring up the petition as a record in the case for review. So in the case at bar the ballots will be brought up for review under such writ. In State v. Dowling, 50 Mo. 134, it was held that the action of the board of appeals from the assessment of taxes may be reviewed by such writ. In State ex rel. v. Springer, 134 Mo. 212, it was held that such writ is the proper remedy to annul an increased tax assessment if made without jurisdiction. In Ward v. Board, 135 Mo. 359, it was held that an erroneous assessment may be quashed under such writ. It is plain that an assessor keeps no "records" of his proceedings, within the meaning of that term contended for in this case. And the same is true of the officials and tribunals in all of the above cases. But they have books, papers and documents which are records in legal contemplation. And so are, undoubtedly, the poll books, ballots, returns, etc., of the election in controversy records of the election commissioner's office. Relator submits that such records will show that he was fairly nominated, as will appear from a recount of the ballots, and he is entitled to such recount, if nothing more. If he is not so entitled the statute relied on is a mere nullity.

VALLIANT, J. Brace, C. J., Marshall, Burgess and Gantt, JJ., concur; Fox, J., concurs in the result; Lamm, J., dissents.

OPINION

In Banc.

Prohibition.

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 23rd ward. The election was held under the Statute of 1901 (Laws 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 (Laws 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, which has been carried into Revised Statutes of New York, 1901, volume 4, page 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 of article 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 the 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...