The State ex rel. Darst v. Wurdeman

• Citation: 264 S.W. 402,304 Mo. 583
• Decision Date: 03 July 1924
• Docket Number: 24952
• Parties: THE STATE ex rel. JAMES W. DARST et al. v. GUSTAVUS A. WURDEMAN, Judge of Circuit Court
• Court: United States State Supreme Court of Missouri

264 S.W. 402

304 Mo. 583

THE STATE ex rel. JAMES W. DARST et al. v. GUSTAVUS A. WURDEMAN, Judge of Circuit Court

No. 24952

Supreme Court of Missouri

July 3, 1924

Preliminary rule discharged.

J W. Jamison and James E. Hereford for relators.

The secrecy of the ballot cannot be violated except in so far as may be absolutely necessary to prove allegations of fraud made in good faith. Nothing short of an allegation that each and every one of the twenty-five thousand votes cast at the election in St. Louis County was fraudulent could justify the report of the county clerk or its use by respondent in evidence. Gantt v. Brown, 238 Mo. 560; State ex rel. Phillips v. Barton, 254 S.W. 85; Gass v Evans, 244 Mo. 239; State v. Byrd, 237 S.W. 166.

Henry Kortjohn, Jr., and Ralph & Baxter for respondents.

(1) Respondents deny the allegations of fact set out in relators' petition for writs of prohibition. (2) The issues of fact set out in the contest petitions and other pleadings in the contest cases allege fraud which justifies the return made by the county clerk in obedience to the writ of re-count. (3) In this election contest case all the facts set out in the return of the county clerk to the writ of re-count are necessary as evidence. The investigation should be as broad as the charges. Gantt v. Brown, 238 Mo 560, 569; Bradley v. Cox, 271 Mo. 438. (4) Ballots rejected by the judges of election, where there is no evidence that the ballots were lawful beyond that shown by the ballots themselves, cannot be counted. Hehl v. Guion, 155 Mo. 76. (5) Where the Supreme Court and the circuit court have concurrent jurisdiction to try the issue of facts involved, a writ of prohibition shall not lie. State ex rel. Johnson v. Withrow, 108 Mo. 8; State ex rel. Buckner v. Ellison, 277 Mo. 294, 301. (6) The order made by the circuit court is a ministerial order, which may even have been made by the clerk in vacation, and is not such a judicial act as authorizes correction by writ of prohibition. State ex rel. Phillips v. Barton, 254 S.W. 85; Johnson v. Railroad, 259 Mo. 534.

Graves, C. J. All concur; David E. Blair, J., in the result.

OPINION

GRAVES

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 Two 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, Missouri, 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," "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 U.S. 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 an (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 Jones 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 Jones, 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 vs. Jones was assigned to Division Two, and is the case which we have in hand now. The case of Miller vs. Tiffin fell to the other division of the court. In each case application for a re-count of the ballots was made and an order made therefor. The respondent in this case has set out 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 re-count, and this included every vote cast in the county. It further appears that the re-count was had for both offices at the same time, and when the county clerk made out his report of the re-count 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 vs. Jones, 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 prohibit 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. 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 law, and not by our statutes; that the statutes as to the parties to the action have reference to the circuit court and not to this court. [State ex...