Vail v. Dinning

• Decision Date: 31 March 1869
• Citation: 44 Mo. 210
• Parties: JAMES H. VAIL, Contestor, v. LOUIS F. DINNING, Contestee.
• Court: Missouri Supreme Court

44 Mo. 210

JAMES H. VAIL, Contestor,

v.LOUIS F. DINNING, Contestee.

Supreme Court of Missouri.

March Term, 1869.

G. I. Van Alen, and John F. Bush, for contestor.

I. The questions arising in this case concerning the regularity and legality of the election are questions of a political nature, and their determination is an exercise of political power. (State

x rel. Bartley v. Governor Fletcher, 39 Mo. 388; State ex rel.Jackson v. Howard County Court, 41 Mo. 24.) Hence, the case of Foster v. State, 41 Mo. 61, has no application here.

II. The contestee's construction leaves the contestant no remedy. “ Ubi jus, ibi remedium.” (Broom's Legal Max. 146 et seq.)

III. This court has power to issue other writs besides those named in the constitution. (Thomas v. Mead, 36 Mo. 232; State ex rel. West et al. v. Clark County Court, 41 Mo. 44.) This proceeding originates in a notice which is in the nature and performs the functions of an original remedial writ within the meaning of the constitution, and was designed by the Legislature to meet new cases arising under our elective system. The requirement that writs shall “run in the name of the State of Missouri” is not mandatory, but directory. (Davis v. Wood, 7 Mo. 162; Wethers v. Rogers, 24 Mo. 340.)

Glover & Shepley, for contestee.

I. This is not a case where this court has original jurisdiction. ( Videart. VI, §§ 2, 3, of Constitution, Gen. Stat. 1865, pp. 35-6.) (1) No writ of any sort is here issued. If the notice in this case be regarded as filling the place of a writ, it is a writ which the contestor is entitled to on his own motion, like a writ of summons at law or subpœna in chancery. But habeas corpus, mandamus, quo warranto, and certiorari are all of them extra writs, that issue only on special application to the court, and on a showing of merits. (2) This proceeding not being one of these writs, to be sustained at all should appear to be some other original remedial writ of like kind. Evidently a writ of prohibition is of like kind, and is embraced in “other original remedial writs,” and the Legislature might frame any other writ of like kind, and this court would have constitutional power to issue and hear them; but no process to begin a contest about an election would be of like kind. The right to have the benefit of an election is an ordinary civil right, requiring no extraordinary process to assert it more than the right to chattels or lands.WAGNER, Judge, delivered the opinion of the court.

At the general election in November last, Vail and Dinning were candidates for the office of circuit judge in the fifteenth judicial circuit; and Dinning having received a majority of the votes cast, Vail proceeded to contest the election by giving notice within the time and in the manner prescribed by the statute. A motion is now made on behalf of Dinning to dismiss the case from the docket, because: first, this court has no jurisdiction of the subject matter of this proceeding; second, if there is jurisdiction of the subject matter, there is no sufficient petition in the case to give the contestor a standing in court.

That the petition is palpably defective is certainly true; but if the question of jurisdiction is determined adversely to the contestor, it is useless to examine it. The proceeding was commenced under section 80 of the general statute in regard to elections, which provides that if any person contest the election for circuit judge, he shall present a petition to the Supreme Court at the first term holden next after the election, or to some judge thereof in vacation, within forty days after such election, setting forth the points on which he will contest the same, and the facts he will prove in support of such points. Subsequent sections point out the manner of taking testimony, and the act declares that all contested elections for judges of the Circuit Court shall be heard and determined by the Supreme Court. This provision was first adopted in the statute law of this State in the revision of 1855, and was imported thence into the General Statutes of 1865. The question of jurisdiction is now raised for the first time, and till very recently no case involving the subject matter was ever presented to this court. At the February term last, John Wilson presented his petition to contest the right of Lucas to the judgeship of the fifth judicial circuit, but the petition was dismissed, the notice not having been served in time.

In the first place, it must be acknowledged that the jurisdiction of this court is defined and limited by the constitution. It has such powers and jurisdiction as the constitution has conferred upon it--no more, no less. It can not shirk any duty imposed on it by the organic law, nor can it extend its powers to take cognizance of any matter not within the scope of its limited authority. The Legislature can neither add to nor diminish its rightful jurisdiction. That body can invest it with no original jurisdiction when it is not given by the constitution, nor can they deprive it of its appellate jurisdiction.

The second section of article VI of the constitution declares that the Supreme Court, except in cases otherwise directed by the constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under the instructions and limitations in the constitution provided. Section 3 provides that the Supreme Court shall have a general superintending control over all inferior courts of law, and shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same. The above sections comprise the whole jurisdictional power of this court.

It was never intended that this court should exercise original jurisdiction in matters of general litigation, or in contests respecting mere private rights. The uniform construction placed upon the provisions in our constitution, and on like provisions in other States, is against the right, and wherever the attempt has been made it has been disclaimed by the courts. In Foster v. State (41 Mo. 61), a dispute arose between the public printer and the State authorities respecting the settlement of an account, and the Legislature passed an act for the submission of the matter in controversy to the adjudication of this court, on an agreed statement of...