The State ex rel. Rutledge v. St. Louis School Board

• Decision Date: 10 December 1895
• Parties: The State ex rel. Rutledge et al. v. St. Louis School Board et al
• Court: Missouri Supreme Court

33 S.W. 3

131 Mo. 505

The State ex rel. Rutledge et al. v. St. Louis School Board et al

Supreme Court of Missouri

December 10, 1895

"State of Missouri.

"Office Board of Election Com-)

missioners. -- City Hall.)

St Louis, Nov. 4, 1895.

"Hon Franklin Ferris, City.

"Sir -- I have the honor to acknowledge receipt of your inquiries concerning registrations and transfers, and in reply beg leave to submit the following:

"First: The number of registrations received for three months prior to the closing of the registration records preceding the school board election of November 1893 was, as shown by the books of this office, eleven hundred and thirty eight (1138). The registration records for this election closed October 31, 1893.

"Second: The number of transfers for three months prior to the closing of the registration records preceding the school board election of November, 1893, was, thirty-two hundred and twelve (3212).

"Third: The number of registrations received for three months prior to the closing of the registration records preceding the school board election of November, 1891, was, ten hundred and six (1006). The registration records for this election closed October 24, 1891.

"Fourth. The number of transfers for three months prior to the closing of the registration records preceding the school board election of November, 1891, was, twenty-nine hundred and sixty-six (2966).

"Fifth: The number of votes cast at the spring election of 1895, as shown by the records of this office, was 55890.

"Sixth: The registered vote of the spring election of 1895, as shown by the records of this office, was ninety-nine thousand five hundred and forty-three (99543).

"Very respectfully your obedient servant,

"Wm. Flewellyn Saunders,

"Commissioner and Secretary."

Peremptory writ awarded.

Rowell & Ferriss for relators.

(1) The board has no discretion to refuse to call an election. First. The term of office is fixed by law (sec. 6, p. 2171, R. S. 1889). Sansum v. Mercer, 68 Tex. 488; Ewing v. Hoblitzelle, 85 Mo. 76. Second. The board can not determine the validity of the election before it is held. Bowers v. Smith, 111 Mo. 54; McCrary on Elections, sec. 101; Mechem on Pub. Off., sec. 155; Weil v. Calhoun, 25 F. 665; Knox Co. v. Davis, 43 Ill. 412. (2) A valid election can be held upon the present registration lists. First. History of election laws. Const. 1865, art. 2, sec. 4; sec. 18, Laws, 1866; State ex rel. v. Brassfield, 67 Mo. 331; State ex rel. v. Cook, 41 Mo. 593; Const. 1875, art. 8, secs. 2-5; sec. 999, R. S. 1889; Laws, Extra Session, 1895, secs. 2, 3, 5, 6, 11, 19, 35, 40. Second. School board election under existing laws not in derogation of constitutional rights. Right to vote not a vested one. Blair v. Ridgley, 41 Mo. 178. Legislature has right to pass registration laws which will temporarily deprive voters of the right to vote. Cooley, Const. Lim. [6 Ed.] 200; Blair v. Ridgley, 41 Mo. 169; Ewing v. Hoblitzelle, 85 Mo. 63; West v. Ross, 53 Mo. 350; State ex rel. v. Cook, 41 Mo. 593; County Ct. v. Griswold, 58 Mo. 175; Hamilton v. County Court, 15 Mo. 3; Talcott v. Philbrick, 59 Conn. 472; People v. Board, 29 N.E. 329; People v. Hoffman, 116 Ill. 587; Butts v. State, 31 Kan. 556; Patterson v. Barlow, 60 Pa. St. 54. Third. The law is within the terms of present constitution. State v. Frazier, 78 Mo. 430; Railroad v. Evans & Howard, 85 Mo. 307. Fourth. Laws valid which close registration before election day. McCrary on Elections, secs. 92, 95, 96; Mechem on Pub. Off., sec. 149; Cooley, Const. Lim. [6 Ed.] p. 756. Fifth. The provision for using present registration list is reasonable. (3) Voters may still register under the old law. First. The board of election commissioners given the registration lists with power to continue same until 1896. Sec. 2, Laws, Special Session, 1895, p. 7. Second. Old law not repealed and not inconsistent with the provisions of new law as far as present registration concerned. (4) Board of election commissioners are not authorized to hold the election.

Charles B. Stark for respondents.

(1) The relators, showing that they have no interest in the performance of a duty by a public officer different from or greater than that of all other citizens, can not maintain a mandamus proceeding against such officer. R. S. 1889, secs. 630, 637, 1990; Demarest v. Wickham, 63 N.Y. 320; Roosevelt v. Draper, 23 N.Y. 318; Doolittle v. Supervisors, 18 N.Y. 155; In re Wellington, 16 Pick. 87; People v. Inspectors, 4 Mich. 187; State v. Kearney, 25 Neb. 262; Smith v. Mayor, 81 Mich. 123; People v. Regents, 4 Mich. 98; People v. Green, 29 Mich. 121; People v. Supervisors, 38 Mich. 421; People v. Auditor, 42 Mich. 422. (2) The alternative writ, stating as a conclusion that it was the duty of the respondents to order an election, does not state facts in an issuable form, and hence the writ should be quashed and the peremptory writ denied. State ex rel. v. Everett, 52 Mo. 89; Hamilton v. Dexter, 89 Mo. 188; State ex rel. v. Governor, 39 Mo. 388; 2 Spelling Ex. Rel., sec. 1370, pp. 1117, 1118; Arberry v. Beavers, 6 Tex. 457. (3) It appearing from the record that the respondent board at the time of the issuance of the alternative writ had outstanding a duly appointed committee charged with the duty of making all arrangements looking to the holding of an election, this court can not presume that the respondents will fail in the discharge of any duty incumbent on them under the law in the matter of ordering and holding an election. (4) The alternative writ on its face stating that the law and the rules of the respondent board required the holding of an election on a date which is now impossible, and there being no charge of fraud against the respondents, the court can not command it to hold an election, for an election held at a date other than that fixed by law would be a nullity. State ex rel. v. Jenkins, 43 Mo. 261; State ex rel. v. Robinson, 1 Kan. 17; State v. Stauffer, 11 Neb. 173; State v. Whittemore, 11 Neb. 175; 2 Spell. Ex Rel., sec. 1443. (5) The demurrer to the return strikes back to the alternative writ, and where the latter fails to suggest sufficient facts to entitle the relators to the relief sought, the peremptory writ will be denied. State ex rel. v. Newman, 91 Mo. 445; Dement v. Bokker, 19 N.E. 33. (6) Under the charter of the respondent board, it is given the power "to prescribe the time, place, and manner of conducting" its elections, and this necessarily implies the right to exercise a discretion and judgment in prescribing or selecting the time. Laws, 1824-1835, p. 399, secs. 3, 4, 6, 7; Laws, 1881, p. 207; R. S. 1889, sec. 8116. See Webster and Worcester's Dictionaries, words, "prescribe," "regulate." (7) The respondents having a discretion in the matter of prescribing the time of holding the election and having taken action, even though they have not taken final action, mandamus will not lie to control that discretion. State ex rel. v. Commissioners, 8 Nev. 309; State ex rel. v. Cramer, 96 Mo. 75; State ex rel. v. Coleman, 33 Mo.App. 470; State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. Gregory, 83 Mo. 123. (8) It is not competent to hold an election testing the right to vote by registration lists which have been closed to the voters for two and one half months. Mo. Const. 1875, art. 8, sec. 2; Zeiler v. Chapman, 54 Mo. 502; State ex rel. v. Frazier, 98 Mo. 426; State ex rel. v. Albin, 44 Mo. 346; McCrary, Elec., secs. 101, 95, 98; Paine's Elec., sec. 95; Cooley, Const. Lim., 781, 775, 602; Stephens v. Mayor, 84 Ga. 630; McDowell v. Construction Co., 96 N.C. 514. (9) There can, under the present laws, be no registration of voters at this time. Special Sess. 1895, secs. 1, 3, 4, 5, 6, 19, 20, 21, 35, 100. (10) If the board of election commissioners have power to admit voters to the registration lists, they have, nevertheless, notified the respondents that they will not exercise that power, and hence the respondents are unable to obtain corrected lists, and the court should not grant a mandamus against them but leave matters in statu quo until such time as the powers of the said board can be defined in a proper proceeding to that end, when the proper parties shall be before the court. 2 Spell. Ex. Rel., sec. 1440; High, Ex. Rem., sec. 9. (11) There appearing to the respondents that a serious doubt existed as to their ability to hold a valid election on the first Tuesday of November, they properly declined to expend $ 10,000 of the trust fund in their hands in the doubtful experiment. State ex rel. v. Buhler, 90 Mo. 560; School Dist. v. Wickersham, 34 Mo.App. 337; State ex rel. v. Albin, 44 Mo. 346; 2 Spell. Ex. Rel., secs. 1441, 1443; High, Ex. Rem., sec. 9. (12) It stands admitted in this case that for many years the respondent board, with the consent and acquiescence of its corporators, the people of St. Louis, has so interpreted its charter powers as to give it the discretion to change the date of holding its election from one time to another, and this court ought to accept the same as a practical construction of the charter by those interested therein, and ought to follow it.

Barclay, J. Brace, C.J., and Gantt, Macfarlane, Sherwood, Burgess, and Robinson, JJ., concur.

OPINION

In Banc.

Mandamus.

Barclay J.

This is an original proceeding to obtain a mandamus against the St. Louis school board, the official title of which is "The Board of President and Directors of the St. Louis public schools." The members of the Board are joined as defendants. The relators are certain citizens and taxpayers of St. Louis. The object of the desired writ is to require defendant to cause an election for members of the said Board to be held in that city.

An alternative writ was issued on...