The State ex rel. Kirchner v. McElhinney
| Decision Date | 13 February 1924 |
| Docket Number | 24852 |
| Citation | 258 S.W. 1020,302 Mo. 564 |
| Parties | THE STATE ex rel. HENRY C. KIRCHNER v. JOHN W. McELHINNEY, Judge of Circuit Court, and EDWARD TIFFIN, Clerk of County Court |
| Court | Missouri Supreme Court |
Preliminary rule discharged.
Jos C. McAtee for relator.
(1) Edward Tiffin was without authority to proceed to open the ballots and conduct a recount upon the 25th day of June 1923. (2) Judge McElhinney could not make an order to Tiffin to recount the ballots when it appeared at the time that Tiffin had been divested of jurisdiction. (3) Under Sec 4912, R. S. 1919, Tiffin was required to give five days' notice of his intention to recount the ballots, and the notice given on June 20, 1923, was a notice of his intention to do a thing at the end of the five days that would have been invalid and unlawful. (4) The Act of 1923, relating to elections in counties having more than one hundred thousand inhabitants and creating a board of election commissioners for such counties, divested Tiffin of all the jurisdiction to proceed in the manner set forth in his return. (5) The word "hereafter" applies to existing as well as to prospective conditions.
James E. Hereford for respondents.
(1) Every act of each respondent, complained of by relator, was performed because required by the provisions of the law in force at the time such acts were performed. Upon request of contestant the writ to the county clerk must issue as of course and upon receipt of the writ from the circuit court the clerk of the county court was required to "at once" fix a day for proceeding with the recount of the ballots. R. S. 1919, secs. 4911, 4912.
(2) The law presumes that a public officer will do his duty under the law and that courts will decide the law correctly, and this notwithstanding general declarations previously made to the contrary, for the obvious reason that no officer can legally act or legally decline to act until a matter is legally presented calling for official action. State ex rel. Murphy v. Burney, 269 Mo. 602, 611; Chillon v. Metcalf, 234 Mo. 27; State ex rel. Abbott v. Adcock, 225 Mo. 335. 361. (3) It is presumed that courts will pursue the proper course if their power is properly invoked, and this court will not assume that if a new and different law goes into effect in the future respondents will not comply with the terms of the new law. Roney v. Organ, 176 Mo.App. 234, 242; State ex rel. City of Monett v. Thurman, 268 Mo. 537. (4) The new registration law applicable to St. Louis County undertakes to set out particularly and specifically and also in general terms the articles to be turned over to the election commissioners by the county clerk, and does not include ballots. Under the recognized rules of expressio unius and ejusdem generis the ballots are not to be turned over by the county clerk but are to be retained by said county clerk. If the county clerk retains custody of the ballots, he must make the re-count. Laws 1923, p. 194; State ex inf. Conkling v. Sweaney, 270 Mo. 685, 692. (5) It is the duty of the court to carry out all the provisions of a statute and to make thereof a consistent and harmonious whole. This can be done only by giving to the county clerk custody of the ballots cast in previous elections and the right to count them, and to the election commissioners complete jurisdiction over elections "hereafter" held. Laws 1923, p. 194; State ex rel. King v. Board of Trustees, 192 Mo.App. 583; State v. Theodore, 191 S.W. 422.
Original proceeding in prohibition. The petition, which was filed June 23, 1923, sets forth in substance that at the general election held in November, 1922, relator and one Byrd Anne Yore were candidates for Clerk of the Circuit Court of St. Louis County; that relator received the certificate of election, and was thereafter duly commissioned for a term of four years, commencing January 1, 1923; that in due time said Byrd Anne Yore instituted in the Circuit Court of St. Louis County a contest to contest the election of relator; that thereafter on June 16, 1923, respondent, John W. McElhinney, as judge of said circuit court, caused to be issued a writ commanding the respondent Tiffin, as clerk of the county court, to open the ballot boxes and count the votes cast at the election in contest; that respondent Tiffin, acting under said writ, caused to be served upon relator on June 19, 1923, a notice in writing that on June 25, 1923, at nine o'clock A. M., he would proceed to open the ballot boxes and begin a re-count of the ballots; that by reason of an Act of the General Assembly vesting in a board of election commissioners all the powers and duties of the County Clerk of St. Louis County pertaining to elections and election contests, which would go into effect June 25, 1923, the respondent Tiffin on that date would be wholly without authority or jurisdiction to open and re-count the ballots pursuant to the notice so given by him; and that respondent circuit judge "in issuing said writ at the time . . . stated, with knowledge of the passing of said act and the time of its taking effect, . . . acted beyond his jurisdiction, for the reason that the law requiring five days notice to contestee made the execution of said order impossible." It prays that the respondents and each of them be prohibited from proceeding further in the matter of the opening and re-counting of the ballots by the respondent Tiffin.
In his return to the preliminary rule, the respondent judge set forth the pendency of the election contest in his said court, the application in that proceeding by the contestant for an order directing the county clerk to open the ballot boxes and recount the votes cast for contestant and contestee, and the issuance of a writ in conformity with such application and the law then in force. He further stated that thereafter, on the 20th day of June, 1923, the contestee, relator herein, filed a motion in the election contest proceeding asking the court to recall its order directing the issuance of the writ to the county clerk commanding him to recount the ballots and certify the result to the court, on the ground that before said clerk could begin said count the new election law applicable to St. Louis County would go into effect and he would then have no right to open the ballot boxes and re-count the ballots as commanded by the writ, that he as judge of the court overruled the motion, on the ground that the order was properly and legally made in accordance with the provisions of the law existing at that time; that at the time of overruling said motion he announced "that when the new law went into effect the court would, upon application, make such other and further orders as the law and justice might require;" and that since overruling the motion to recall the writ to the county clerk, he had not threatened to take any further action in the matter of having the county clerk recount the ballots, but that he had refused, and was still refusing, to take further action in that behalf.
Respondent Tiffin in his return, after setting forth the...
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