Totton v. Murdock

• Decision Date: 12 July 1972
• Docket Number: No. 57976,57976
• Citation: 482 S.W.2d 65
• Parties: Christi Lyn TOTTON et al., Appellants, v. Fred A. MURDOCK et al., Respondents.
• Court: Missouri Supreme Court

Page 65

482 S.W.2d 65

Christi Lyn TOTTON et al., Appellants, v. Fred A. MURDOCK et al., Respondents.

No. 57976.

Supreme Court of Missouri, En Banc.

July 12, 1972.

Robert Frager, Kansas City, for appellants.

John C. Thurlo, Vincent E. Baker, Kansas City, for respondents.

MORGAN, Justice.

The trial court refused to issue a peremptory writ of mandamus compelling respondents to allow appellants to register and vote in the primary election to be held on August 8, 1972. On appeal, one question is presented--may a person of the age of seventeen (17) years register and vote in the primary election if such person will be eighteen (18) years of age on or before the general election on November 7, 1972? We have concluded that such person legally can not do so and therefore affirm the judgment of the trial court.

Factually, the parties agree:

(1) That each of the appellants is now and on the date of the primary will be seventeen years of age, but that each will be eighteen years of age on or before the date of the general election.

(2) That each of the appellants, except for the question of age, is otherwise qualified to vote in such elections, and that they bring this action for themselves and on behalf of others similarly qualified.

(3) That respondents are members of and constitute the Board of Election Commissioners for the city of Kansas City, and that they by law are required to follow the dictates of Chapters 117, 120 and 121, RSMo.1969, V.A.M.S., which, among other things, call for the board to '. . . make all necessary rules and regulations, not inconsistent with this chapter, with reference to the registration of voters and the conduct of elections and shall have charge of and make provisions for all elections, general, special, local, municipal, state, county, all primaries, and of all other of every description, to be held in such city or any part thereof, at any time.' (Para. 6, Section 117.050.)

Initially, it should be noted that appellants have not cited, nor has our own research revealed, any constitutional or statutory provision, either federal or state, specifically granting the right to vote at any election to a person of the age of seventeen years. In fact, the latest constitutional mandate on the subject is found in the Twenty-sixth Amendment to the United States Constitution, effective July 5, 1971, which, in part, provides: 'The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.' However, the contention of appellants is not totally unfounded as it is based on an opinion of the Attorney General issued on July 10, 1934, and as yet not withdrawn, which concluded that if a person would be qualified as an elector to vote in the general election he would not be disqualified by non-age from voting in the primary election immediately prior thereto. For apparently the fitst time, this court is now called on to consider the validity of such a conclusion which purportedly was based on the following reported cases: Dooley v. Jackson, 104 Mo.App. 21, 78 S.W. 330 (1904); State ex rel. Von Stade v. Taylor, 220 Mo. 618, 119 S.W 373 (1909); and, State ex rel. Feinstein v. Hartmann, Mo., 231 S.W. 982 (1921). In Jackson, the court declared that: 'The word 'election' frequently occurs in the Constitution of the state. First in section 9, art. 2; and article 8 of that instrument is wholly devoted to the subject of elections. But, wherever used in the Constitution, it is used in the sense of choosing a person or persons for office by vote, and nowhere in the sense of nominating a candidate for an office by a political party.' The same conclusion was reached in Taylor, 119 S.W. l.c. 376, wherein it was said: '. . . the word 'election' as used in the Constitution refers entirely to the election of individuals to a public office, and not the mere nomination of candidates for such offices to be subsequently voted for. That the framers of the Constitution referred to the election of individuals to public office, and not to mere nomination to office, when they inserted section 3 of article 8 in the Constitution, we have no doubt whatever.' Again, in Hartmann, 231 S.W. l.c. 985, the court made a similar finding and then resolved that: 'As a necessary consequence the provisions of the Constitution which govern elections do not, of their own force, and by virtue of their presence in the Constitution, have any application to primary elections, or any question concerning them.' Also, this court in State ex rel. Dunn v. Coburn, 260 Mo. 177, 168 S.W. 956 (1914), after noting the absence of a constitutional reference to primaries, made the observation, l.c. 958, that: 'No one thought of political primaries regulated by law, when this organic law was framed, for it had its origin many years prior to the present Constitution.' Further, the court discussed the fact primaries were as susceptible to fraudulent conduct as any other election, and that as a part of the elective process they were necessarily subject to regulation under the police power of the state. The court then went on to say, 'There being no constitutional inhibition upon the subject, the sovereign state was left with a free rein.' Which was nothing more than a declaration that if primaries are not within the dictates of the constitution, they necessarily are subject to legislative control by statute.

However, after accepting the validity of such holdings at the time they were announced, it must be recognized that subsequent thereto, on February 26, 1924, the constitution of 1875 was amended. Of immediate interest, was the addition to Article 8, Section 3, V.A.M.S., of the words '. . . including nominating elections . . ..' Such words have been carried forward and are a part of the present 1945 Constitution in Section 3 of Article 8, which is entitled 'suffrage And Elections.' The 1924 Amendment did not go unnoticed by this court for two years later in the case of State ex rel. Hollman v. McElhinney, 315 Mo. 731, 286 S.W. 951 (1926), at 952, it was said: 'However, the proviso of section 3 of Constitutional Amendment No. 9, adopted February 26, 1924, specifies when the veil of secrecy can be lifted as to ballots cast at elections, 'including nominating elections,' thus clearly indicating that section 3 as amended and adopted extends the constitutional guaranty of a secret ballot, so that the term, 'all elections by the people,' used in the first sentence of section 3, now includes nominating elections . . ..' The finding in McElhinney was reaffirmed in State ex rel. Dengel v. Hartmann, 339 Mo. 200, 96 S.W.2d 329 (1936). See also State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319 (1938). Recognition, however, must be given to the fact that none of such cases pertained to the question of age qualification, and they were resolved in the context of the...