The State ex rel. Garesche v. Roach

• Decision Date: 02 June 1914
• Citation: The State ex rel. Garesche v. Roach, 167 S.W. 1008, 258 Mo. 541 (Mo. 1914)
• Parties: THE STATE ex rel. VITAL W. GARESCHE v. CORNELIUS ROACH, Secretary of State
• Court: Missouri Supreme Court

167 S.W. 1008

258 Mo. 541

THE STATE ex rel. VITAL W. GARESCHE v. CORNELIUS ROACH, Secretary of State

Supreme Court of Missouri

June 2, 1914

Writ allowed.

Spencer & Donnell and George B. Webster for relator.

(1) The so-called Non-partisan Judiciary Act of 1913 is unconstitutional because it violates article 4, section 28 of the Constitution, in that it purports to repeal existing laws without any indication of such repeal in its title.(2) The so-called Non-partisan Judiciary Act of 1913 is unconstitutional because it violates article 4, section 23 paragraph 32, of the Constitution in that it is a local or special law enacted "where a general law can be made applicable."Bridges v. Mining Co.,252 Mo. 53;Hays v. Mining Co.,227 Mo. 288;Henderson v Koenig,168 Mo. 375;State v. Hill,147 Mo. 63;State ex rel. v. Messerly,198 Mo. 356;State ex rel. v. Turner,210 Mo. 83;State v. Anslinger,171 Mo. 611.(3) The so-called Non-partisan Judiciary Act of 1913, is unconstitutional because it violates article 4 section 53, paragraph 2, of the Constitution, in that it is a local or special law tending to regulate the affairs of St. Louis City alone.Hays v. Mining Co.,227 Mo. 302;Henderson v. Koenig,168 Mo. 376;State ex rel. v. Turner,210 Mo. 83;Bridges v. Mining Co.,252 Mo. 57;State v. Anslinger,171 Mo. 611.(a) It does not relate to cities of the first class.R. S. 1909, sec. 8524.(b) It does not refer to cities having special charter.Constitution, art. 9, sec. 16.(4) The so-called Nonpartisan Judiciary Act of 1913 is unconstitutional because it violates section nine of the Bill of Rights, requiring that all elections shall be free and open.Wally v. Kennedy,2 Yerg. 554.(5) The so-called Non-Partisan Judiciary Act of 1913 is unconstitutional because it is an attempt to partially repeal a general law by the enactment of a special and local law.Constitution, art. 4, sec. 53, par. 32;R. S. 1909, chap. 43, art. 4;Laws 1913, p. 334;Henderson v. Koenig,168 Mo. 371;State ex rel. v. Messerly,198 Mo. 355;State v. Anslinger, 171 Mo. 600.

John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for respondent; Marion C. Early of counsel.

(1) Definition and nature of remedy.26 Cyc. 139;High on Extr. Leg. Rem., p. 4, sec. 1.(2) The relator must specify the exact relief desired.State ex rel. v. Hollady,65 Mo. 77;State ex rel. v. Railway,77 Mo. 147;School Dist. v. Lauderbaugh,80 Mo. 194.(3) A litigant seeking relief by mandamus must allege and show a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced.High on Extr. Leg. Rem., p. 12, sec. 9;26 Cyc. 151;State ex rel. v. Lessueur,136 Mo. 459;State ex rel. v. Williams,99 Mo. 221;State ex rel. v. Boonville B. Co.,206 Mo. 74;State ex rel. v. McIntosh,205 Mo. 610;State ex rel. v. Hudson,226 Mo. 265;People v. Hatch,33 Ill. 140;People v. Lieb,85 Ill. 490;People v. Klokke,92 Ill. 137;Swigert v. County of Hamilton,130 Ill. 549;Mayor v. Aspen, T. & L. Co.,10 Colo. 198;State v. Buhler,90 Mo. 570.(4) An act in general terms repealing all conflicting provisions of previous acts will have the effect to repeal any such conflicting acts.2 Lewis's Sutherland Stat. Const., p. 492;State v. Yardley,34 L.R.A.(Tenn.) 671;State ex rel. v. Assurance Co.,251 Mo. 292.(5)Courts take judicial notice of the existence and tenor of the public laws of the State.Olive v. Alabama,4 L.R.A. 40;7 Ency.Evidence, p. 947.(6)The courts will take judicial notice of the population of the city of St. Louis.State v. Anslinger,171 Mo. 600;State ex inf. v. Evans, 166 Mo. 347;State ex rel. v. Miller,100 Mo. 439;Welch v. Mann,193 Mo. 304;Major v. Ryan, 232 Mo. 77.

FARIS, J. Woodson, Brown and Walker, JJ., concur; Lamm, C. J., and Graves, J., concur in paragraphs one and two and in the result; Bond, J., dissents as to paragraphs one, three, four and to the result.

OPINION

In Banc

Mandamus.

FARIS J. --

This is a proceeding by mandamus to compel the respondent, as Secretary of State, to receive and file the declaration of candidacy of relator upon the Republican ticket at the ensuing primary election, for the office of circuit judge of the Eighth Judicial Circuit, which circuit is composed of the city of St. Louis.

This is a companion case to that of State ex rel. Garesche v. Drabelle et al., as members of the Board of Election Commissioners, etc., likewise submitted at this term.The two cases, for reasons which are obvious, will be considered together, and a mere memorandum made in the latter case when we shall have ruled this one.

The amended petition in the Drabelle case, apposite here for reasons hereafter to be set forth, omitting style and formal parts, is as follows:

"Vital W. Garesche, petitioner herein, represents to the court that he has attained the age of thirty years and more, is and has been a citizen of the United States for five years, has been for more than three years last past and is now a qualified voter of the State of Missouri, and is now and has been for years a resident of the Eighth Judicial Circuit of the State of Missouri, which consists of the city of St. Louis, and is in all other respects qualified to serve as a circuit judge in said circuit.

"That heretofore, to-wit, on the 2nd day of February, 1914, he filed with the Board of Election Commissioners of the city of St. Louis in compliance with section 5862,Revised Statutes 1909, a declaration paper in words and figures as follows:

"DECLARATION PAPERS.

"St. Louis, Mo., February 2nd, 1914.

"I, the undersigned, VITAL W. GARESCHE, lawyer, 6121 Westminster Place, a resident and qualified elector of the 16th precinct of the 28th ward, of the city of St. Louis Mo., do announce myself as a candidate for the office of circuit judge for the city of St. Louis, in the Eighth Judicial Circuit of Missouri, on the Republican ticket, to be voted for at the Primary Election to be held on the 4th day of August, 1914, in the city of St. Louis, and I further declare that if nominated and elected to such office I will qualify.

"Vital W. Garesche,

"709 Wainwright Bldg.,

"St. Louis, Mo.

"RECEIPT FOR FILING FEE.

"St. Louis, Mo., February 2nd, 1914.

"Received from VITAL W. GARESCHE, of precinct 16th, Ward 28th, of the city of St. Louis, State of Missouri, the sum of twenty-five dollars, being filing fee in accordance with the Act of the Missouri General Assembly, approved June 1, 1909, relative to Primary Elections, and particularly in accordance with the provisions of such act.The filing fee being a deposit as evidence of good faith on the part of Vital W. Garesche in connection with his declaration as a candidate for the nomination as circuit judge, for the city of St. Louis, in the Eighth Judicial Circuit of Missouri on the ticket of the Republican party, the said Primary Election to be held on the 4th day of August, 1914.Thos. K. Niedringhaus,

"Treasurer Republican State Committee.

"Notice -- Name, occupation and address of applicant must be inserted in typewriting or print, and application must be signed by applicant.

"That before the filing thereof he paid to the treasurer of the Republican State Committee the sum of twenty-five dollars as provided by law and as shown in said declaration papers as hereinabove set out.

"That the said Board of Election Commissioners of the city of St. Louis consists of John W. Drabelle, Chairman; Joseph A. Wright, secretary; Sidney S.Mayand Oscar E. Buder.

"That said Board of Election Commissioners refused to receive said declaration of your petitioner or to file the same.

"That your petitioner being in doubt as to the meaning of section 5862,Revised Statutes 1909, as to the place where said declaration should be filed also tendered and offered to file the same with the Secretary of State of the State of Missouri, and that the said Secretary of State refused to receive or file the same.

"That petitioner is still in doubt under the wording of said section 5862 as to whether the said declaration ought to be filed with the Board of Election Commissioners or with the Secretary of State, and for that reason tendered and offered to file the same both with the Board of Election Commissioners and with the Secretary of State, and in this proceeding and in a similar proceeding brought by petitioner against the Secretary of State before this Honorable Courtpetitioner is seeking to determine inter alia the proper place provided by law for the filing of said declaration.

"That petitioner intends in good faith to submit himself before the people of the city of St. Louis at the primary election to be held August 4, 1914, as a candidate for the Republican nomination of circuit judge for the Eighth Judicial Circuit, which consists of the city of St. Louis.

"That the refusal of the Board of Election Commissioners to receive and file petitioner's declaration prevents him from thus submitting himself as a candidate at said primary election and leaves him without any other means of presenting himself at said primary as by law he has a right to do.

"That there was passed in 1913(Laws 1913, p. 334) by the Legislature of Missouri, a so-called non-partisan judiciary law; which said law the respondents herein pretend and say repeals section 5862,Revised Statutes 1909, and relieves them of the duty of filing relator's declaration of intention.

"Relator further states that said so-called non-partisan judiciary law of 1913 is unconstitutional, invalid and void, because the same is in conflict with and violates:

"(a)Article 4, section 28, of the Constitution of Missouri;

"(b)Article 4, section 53, paragraph 32, of the Constitution;

"(c)Article 4,...