The State ex rel. Evard v. Roach
| Decision Date | 30 December 1916 |
| Citation | 192 S.W. 745,269 Mo. 500 |
| Parties | THE STATE ex rel. I. N. EVARD v. CORNELIUS ROACH, Secretary of State |
| Court | Missouri Supreme Court |
Writ denied.
Spencer & Donnell for relator.
John T Barker, Attorney-General, for respondent.
OPINION
In Banc.
Mandamus.
The facts of this case are few and simple. In November, 1914, at the general state election for that year, Howard A. Gass was duly elected Superintendent of Public Schools for the State of Missouri, for the term of four years. On September 18, 1916, Prof. Gass died. On September 27, 1916, the Republican State Committee selected and nominated (as it is alleged) the relator, I. N. Evrard, as the candidate of the Republican party for that office, which office such committee thought was vacant and to be filled by election at the general state election November 7, 1916. On October 14, 1916, the relator, I. N. Evrard, presented his certificate of nomination by such party committee to respondent, the Secretary of State, and said respondent refused to file the same, for the reason that (as he deemed it) there was no vacancy in said office to be filled at the said election of November 7, 1916.
Upon such refusal the relator applied for our writ of mandamus to compel the respondent to place his name upon the Republican ticket as a candidate for such office at the general election on November 7, 1916. Formal issuance of our alternative writ was waived and the petition taken as and for such writ. To this petition respondent filed return, and thereupon relator moved (by written motion) for judgment upon the pleadings. The questions were purely questions of law and this court after due consideration of the same overruled the motion for judgment filed by relator and refused the peremptory writ of mandamus in a judgment duly entered, and assigned the cause for an opinion later in accordance with such judgment. To me has fallen the lot of writing the opinion.
I. I was, and am now, of the opinion that our judgment denying to relator our writ of mandamus can be sustained upon two grounds. I know that a majority of my brothers took a contrary view as to one ground in the case of State ex rel. Hagerman v. Drabelle, 191 S.W. 691. I, with one other, dissented in that case, and the assignment in this case gives me opportunity to express the views that I entertained in the Hagerman case, supra, although they be only the views of myself and my brother Bond, in this case. We need not discuss them at length, because the majority has ruled against them, and we have no idea of changing that ruling.
As in the Hagerman case we are of the opinion that there was no vacancy in the office of Superintendent of Public Schools to be filled at the election of November 7, 1916, because Professor Gass died at a time when no legal nomination could be made for that office. The primary laws of the State require all candidates for public office (such as here involved, and such as was involved in the Hagerman case, supra) to be nominated at a general primary election. Under the law this primary for 1916 was on August 1st. To get on the primary ballot the aspirants had to file their declarations sixty days prior to that date. The State has assumed absolute charge of party nominations in the enactment of the State primary law. The propriety of this is not for our consideration, but it is material in determining what is meant by "the next succeeding election" in those statutes which provide that the appointee to a vacant office shall only hold until such succeeding election, or until his successor is elected at such succeeding election. We must consider the laws with reference to the primary and the general election laws and the laws as to vacancies together, and from them all determine what is meant by the term "next general election" in section 10918, Revised Statutes 1909, which section reads:
Our contention is that if all these laws (primary laws, general election laws and vacancy laws) had been enacted at one time and in one bill covering the general subject, then there would be no question that the term "next general election" as used in section 10918 would mean the next general election at which all the machinery of elections could be called into play, including the primary laws. And we can see no difference in the construction to be given simply because the primary law was enacted at a later date. The laws still must be construed together and as if enacted at one and the same time. With this construction in the instant case, and in Hagerman's case, supra, "the next general election" would not be the general election in 1916 but would be the general election of 1918. This because the death occurred after the election machinery had been put in operation and because on June 1, 1916 (sixty days prior to August 1, 1916) there was no vacancy in the office. And because the Legislature has made no provision for a contingency of the character involved here, and it is not for us to write it into the law.
We are cited, however, to section 5870, which reads:
"Vacancies occurring after the holding of any primary or where no person shall offer himself as a candidate before such primary, shall be filled by the party committee of the district, county or State, as the case may be: Provided, however, that no name shall be allowed on any ticket until the required fee shall have been paid."
To our minds this section does not solve the situation. It is true this is the section relied upon as the authority for the Republican State Committee to place relator's name on the Republican ticket, but it does not reach his case. Without this section there is no authority for relator's nomination by the Republican State Committee. The office of Superintendent of Public Schools was not (at the date of the primary, August 1, 1916, or sixty days prior thereto, June 1, 1916) an office to be filled at the November election in 1916. It was not an office on the tickets nominated at that primary. It was not an office for which a nomination could have been made at that primary, or for which aspirants could have filed sixty days prior thereto.
The word "Vacancies" used in this statute has reference only to vacancies upon the tickets nominated August 1st, and to no other vacancies. There was no vacancy upon any ticket nominated August 1, 1916, and this part of the statute affords no authority for relator's nomination. There was no vacancy upon the ticket for this office because this office at the date of the primary was not an office to be filled and therefore could not have been upon such primary ticket.
Nor does the phrase in said statute "or where no person shall offer himself as a candidate for such primary" in any wise aid relator here. That clause has reference (and reference solely) to an office for which candidates could have run at the August primary, but for which they did not run. In this case there was no such office for which candidates could have run in the August primary, nor for which they could have filed sixty days prior thereto. Had the office of Superintendent of PubSchools been vacant June 1 1916, then this statute would apply, but it does not apply in this case. Had there been a vacancy in this office on June 1, 1916, then "the next general election" would have been the election of November 7, 1916, because all of the election machinery of the State could have been invoked. But the...
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