Barnes v. Gottschalk

3 Mo. App. 111, 1876 Mo. App. LEXIS 238

• Court: Missouri Court of Appeals
• Decided: November 27, 1876
• Status: Published

Opinions

Lewis, J.,

delivered the opinion of the court.

The petitioners allege that they are qualified voters, owners of real and personal estate, and tax-payers in the city and county of St. Louis, and, therefore, directly interested in the litigation of a certain cause now ponding in the St. Louis Circuit Court, before Hon. Louis Gottschalk, a judge thereof, wherein the State of Missouri, at the relation of Thomas J. Henley and others of the defendants herein, is plaintiff, and Henry Overstolz, mayor of the city of St. Louis, and Chauncy E. Schultz, presiding justice-of the St. Louis County Court, are defendants; that said cause is in the nature of a petition for mandamus to compel those officers to certify in duplicate, as provided by section 21, article 9, of the State Constitution, a copy of the Scheme and Charter alleged to have been adopted at an election held for that purpose in pursuance of section 20 of the same article. Petitioners set out at length the contents of the relators’ petition for mandamus, and the proceedings in the Circuit Court thereupon. It thus appears that an '■alternative writ of mandamus was directed to the mayor and presiding justice ; upon which they made their return, admitting that a certain Scheme and Charter had been framed and submitted to the people of St. Louis County, in the form prescribed by the Constitution, but declaring, in effect, that “whether said Scheme and Charter was duly ratified by a majority of all the qualified voters of the city and county voting at the said election” the respondents had not, nor were they by law required to have, any other or further knowledge than was derived from a certificate and abstract of the votes cast at said election, made by the clerk of the county of St. Louis, under his hand and official seal; that from this certificate it appeared that the Scheme and Charter were not ratified by the qualified voters, as alleged, but were, on the contrary, defeated and rejected; that, being so advised through said certificate and abstract, the respondents had refused to certify in duplicate a copy of the Scheme and Charter, as it would have been their duty to do if the same had been adopted. It further appears that an answer to this return was filed by the relators, in which they deny that the Scheme and Charter were defeated at the election, and aver that the contrary is true. They charge numerous errors and irregularities in the holding of the election, and deny the truth of the clerk’s certificate. They conclude with a prayer that the mayor and presiding justice be required to “take such steps, by counting the ballots cast at said election or otherwise, as may be necessary to give them full, true, and certain information in regard to the result of said election.”

This answer was followed by a reply from the respondents. Referring separately to each charge of error or irregularity at the election precincts, they aver that they have no knowledge or information thereof sufficient to form a belief; nor have they any such knowledge or information as to whether the clerk’s certificate is true or untrue in any of its averments.

Upon the pleadings thus framed, the court made an order declaring the issues, and appointing five commissioners to try them. The order proceeds as follows :

“ That said commissioners proceed to examine and count said ballots in said election precincts, and report:

“First. The number of ballots duly numbered according to law, and of these bow many were cast for or against the Scheme and Charter in each of said election precincts.

“Second. The number of ballots not numbered according to law, and of these how many of them were cast for or against the Scheme and Charter in each of said precincts.

11 Third. Any other fact relative to the true result of the election, which may appear from the inspection, examination, and count of the ballots.

“ And it is further ordered that said commissioners may, in case of doubt or difference of opinion, report any fact to this court and pray for further instructions.”

At this point the petitioners appear before us, and, averring that the proceedings of the Circuit Court are in assumption of a jurisdiction and of powers not vested in it by law, ask that we issue a writ of prohibition to stop them.

The first obstacle in the way of this application may be considered a purely technical one ; but a long and unwavering course of judicial decisions has, in the present aspect of the record, made it insurmountable. It nowhere appears that the Circuit Court was asked, in any form, to refrain from proceeding, or to dismiss the case, for want of jurisdiction. The rule is inflexible that, until this is done without avail in the inferior court, an application for prohibition will never be entertained by a court of supervisory authority. Edmundson v. Walker, Carth. 166; Bouton v. Burster, 1 Barn. K. B. 71; Ex parte McMeechen, 12 Ark. 70; Ex parte City of Little Rock, 26 Ark. 52. This consideration is, of itself, sufficiently imperative to deny the writ. But, because of the great public importance of the matters involved in the mandamus proceeding, and of the influence on future steps therein which may proceed from the views of this court, matured under an able and thorough discussion by opposing counsel, we deem it not improper to consider the real merits of the case as if no technical barrier had appeared.

It is claimed by petitioners that the Circuit Court had no jurisdiction to grant a mandamus in the case presented, or to make the order above shown. Our views upon their chief grounds of objection will be better understood after a statement of the interpretation we attach to the provisions of the general election law and of the Constitution, ns applied to the late Scheme and Charter election.

Section 25, on page 569, of Wagner’s Statutes, is as follows :

“The clerk of each County Court shall, within eight days after the close of each election, take to his assistance two justices of the peace of his county, or two justices of the County Court, and examine and cast up the votes given to each candidate, and give to those having the highest number of votes a certificate of election.”

This is the only provision which confers on the clerk of the County Court authority to certify the result of any election. It cannot be literally applied to that for the Scheme and Charter; since no votes were there given to any candidate, no candidate received the “highest number of votes,” nor was there any one to whom the clerk could give a certificate of election. Whence, then, came the clerk’s authority to issue a “ certificate and abstract” of the result, and what gave to that paper an official significance for any purpose ? It is suggested, with the support of unquestioned authority, that, whenever there is an election for a matter of merely local, and not of personal, application — as, for the location or removal of a county seat, etc. — under a special law which makes no provision for the manner of holding it, the general law regulating elections by the same body of voters will control. But no such rule can apply to any particular feature for which the special law makes a clear provision. Especially must this be so when the special is a part of the organic law.

The State Constitution, article 9, section 20, after providing for the election of a board of freeholders, and their formation of a Scheme of separation and a Charter for the city of St. Louis, proceeds -as follows :

“ Within thirty days thereafter the City Council and County Court shall submit such Scheme to the qualified voters of the whole county, and such Charter to the qualified voters of the city so enlarged, at an election to be held not less than twenty nor more than thirty days after the order therefor; and, if a majority of such qualified voters voting at such election shall ratify such Scheme and Charter, then such Scheme shall become the organic law of the county and city, and such Charter the organic law of the city; and, at the end of sixty days thereafter, shall take the place of and supersede the Charter of St. Louis and all amendments thereof, and all special laws relating to St. Louis County inconsistent with such Scheme.

“Sec. 21. A copy of such Scheme and Charter, with a certificate thereto appended, signed by the mayor and authenticated by the seal of the city, and also signed by the presiding justice of the County Court and authenticated by the seal of the county, setting forth the submission of such Scheme and Charter to the qualified voters of such county and city, and its ratification by them, shall be made in duplicate, one of which shall be deposited in the office of the secretary of state, and the other, after being recorded in the office of the recorder of deeds of St. Louis County, shall be deposited among the archives of the city, and thereafter all courts shall take judicial notice thereof.”

If these provisions charge upon any person or persons, other than the clerk of the County Court, the duty of ascertaining and certifying the result of the election, then the certificate given by the clerk is, for any and all purposes, a nullity.

An officer can certify to nothing that he does not know. An official certificate implies official knowledge. The officer attests his own knowledge, and not that of another. The clerk of a court of record, in certifying a judgment, does not, as the petitioners’ learned counsel truly say, certify to its validity, although he may have the judge’s official declaration to that effect. He certifies only that it appears upon the record of the court. That fact is within his official knowledge, because the record itself is before him. The recorder of deeds does not certify to the operation or effect of a deed, or to the identity of the property conveyed ; because of these things he has no official knowledge. He knows, however, that the instrument appears in certain words and figures upon his books, and he can certify to nothing more. It may be stated, as a general rule, that the law neither requires nor permits an officer to certify what is known to another, but not by himself. Hence the appropriate formula: “as appears by the records in my office.” The officer attests the existence of tbe record. The record attests the fact recorded. An officer may be authorized to act upon a certain species of evidence as conclusive, and, upon such testimony, to certify the fact established. But in all such cases it must distinctly appear, both that the evidence has been received and that the law declares it sufficient.

Applying these principles, can it be assumed that the Constitution requires the mayor and presiding justice to give their solemn attestation of a fact whereof they know nothing except as they may be informed by the clerk of the County Court? This officer is not once mentioned in that connection. Why this array of high authentications by the chief officers of the city and county, supported by the corporate seals of their respective municipal subdivisions, if all is only to show, not what these prominent functionaries are able to assert, but what the clerk of one of the subdivisions has told them ? Surely it would be more satisfactory if the clerk were to convey the result of his examination, for preservation in the public archives, directly to the State authorities, rather than through other persons who can only report, at second-hand, upon the speculative accuracy of his conclusions.

It may be asked, Why should not the clerk’s examination and certificate be sufficient for the results of this election, as well as for those of general elections for State and county officers ? The answer is that the law does not make them so. The statute distinctly intrusts him, in the case of general elections, with authority to certify results. It naturally couples with this authority the duty of personal examination, upon which to found his certificate. But the Constitution, in providing for the Scheme and Charter election, devolves upon other officers the duty of certifying, which includes, by necessary implication, the duty of preliminary investigation. The clerk is here ignored for every purpose.

The Constitution purposely requires a very high grade of authentication, proceeding from officials of both city and county, for the establishment of a new order of things which is to change their relations with each other and revolutionize in each its system of organic law. But what avails this deliberate care if those officials are to give, at last, only the testimony of the clerk? The clerk may be conceded to be a model of integrity, uprightness, and accuracy. Yet, for this particular purpose, the Constitution demands something more. It demands qualifications, both official and personal, not possible to be comprehended in him. A thousand officials, repeating what the clerk has asseverated, and only because of his asseveration, could not augment the primary testimony, or bring it nearer, by a hair’s breadth, to the constitutional standard.

It may be remarked that the Constitution attempts no interference with the manner of holding the required election. So far, then, the general law will control. But, this limit being reached, the Constitution interposes a new method of ascertaining and certifying the result, totally different from that of the general election law, and, therefore, superseding it. It may further be remarked that, by the general law, the ballots are to be counted by the judges at their respective precincts, and the county clerk is authorized to accept their reports of such counts as conclusive evidence upon which, after duly examining and comparing them, he may certify the general result. But, in the constitutional provision we are considering, no power is given the designated officials to accept any inferior grade of testimony upon which to found their certificate. They must, therefore, resort to the best evidence of which the nature of the case will admit. This they can do only by resorting to the ballots themselves.

We conclude that the Constitution plainly imposes on the mayor of the city and the presiding justice of the County Court the duty of personally inspecting and counting the ballots cast, in order that they may certify, in due form, the adoption of the Scheme and Charter at the election held for that purpose, if such shall be the result so ascertained. All this being done, the matter will then first be in shape for a possible contest of the election, by quo warranto, information, or otherwise, according to circumstances.

Such being our general conclusions, we proceed to consider their influence upon the leading objections raised by petitioners against the mandamus proceeding.

It is insisted that mandamus cannot be employed to accomplish the purposes of a contested election. Granted ; but here are no such purposes. A contested election can have no existence until after the result has been declared and the certificate awarded by the proper ministerial officer. This, in the present case, has never been done. The proceeding is not to investigate the truth of a declared result, but to compel an official declaration of result where none has been made. Such a process lies precisely within the legitimate operation of the writ of mandamus.

Petitioners still find, however, in the relator’s answer to the respondents’ return some of the elements of a contested election. They point to allegations touching the disqualifications of voters, errors in counting ballots, refusals to recognize ballots duly cast, etc. But these allegations fall far short of making a contested election case, when their avowed object is merely to show a necessity for the performance, by the proper officers, of a ministerial act which has been wholly omitted. Moreover, the question before us is one of rightful or usurped jurisdiction about to be assumed by the Circuit Court. This can never be determined by the allegations of fact in a pleading. The test must be applied to the proposed action of the court itself. What the court thus far proposes to do appears from the order already nrule, and herein quoted. This carefully avoids any inquiry into the qualifications of voters, and into many other matters which are inseparable from every case of contested election.

The petitioners refer us to many authorities in support of their proposition that mandamus will not lie to obtain a relief which any different legal remedy would afford. Here, again, they assume for the proceeding in the Circuit Court an object foreign to that which it really has in view. Assuming that the purpose is to obtain an adjudication that the Scheme and Charter were adopted, they contend that this could be effected under an information in the nature of quo loarranto against any person holding an office in violation of the Scheme and Charter; that an issue would be raised therein upon the result of the Scheme and Charter election; that the investigation of the right to the office would thus incidentally determine whether the Scheme and Charter were in fact ratified. But, admitting, for the sake of the argument, that the petitioners rightly assume what is sought for in the mandamus proceeding, two answers present themselves, either of which appears to be conclusive: First, the Constitution provides that “all officers now or hereafter elected or appointed * * * shall hold office during their official terms, and until their successors shall be duly elected and qualified.” Art. 14, sec. 5. Now, as no officer is yet “ elected or appointed and qualified,” under the Scheme and Charter, and none is likely to be until after a proper attestation of its ratification, the present incumbents would have, in this fact, a conclusive defense against the quo warranto, without any issue upon the result of the Scheme and Charter election at all. Such an issue would, under the circumstances, be immaterial and inadmissible. Second, mandamus is not to be refused because, under some other remedy, there might be an incidental determination as to the right asserted, but followed by a judgment incapable of enforcing it. If a judgment upon quo-warranto information were rendered on the distinct ground that the Scheme and Charter were ratified, it would oust the usurping defendant, but would accomplish nothing more. The Scheme and Charter would still haveto be put in operation by other means. Petitioners refer us to cases wherein the objective point was to obtain possession of an office. The judgment upon quo warranto was precisely adapted to that result, and hence mandamus wo aid not lie.

Howsoever it may be imagined that the object of the mandamus proceeding is to obtain a judgment declaring the Scheme and Charter to have been ratified by the people, there is certainly no intimation in the record that the Circuit Court proposes to render such a judgment. The theory of the proceeding appears to be one of utter indifference to the accomplished fact, whether of ratification or rejection of the Scheme and Charter. It asserts, in effect, that the relators have a right to know, from authorized official sources, under what form of city or county government their rights as citizens are to be protected; that the officers whose duty it was to determine from means within their control, and to declare in constitutional form the express will of the people, have wholly failed and neglected so to do. They demand that those officers be directed to perform their duty, whatever result may follow the performance. This is our understanding of the case as developed in the petition and exhibits before us. We can perceive no reason why mandamus is anything but the proper form of proceeding, or is beyond tbe jurisdiction of the Circuit Court for the purposes intended.

It appears that the Circuit Court has considered it necessary, in order to determine the propriety of issuing a peremptory mandamus, to have certain issues first tried and reported upon by commissioners. Whether such a course is in harmony with the views expressed in this opinion need not be here discussed. We have only to consider the question of jurisdiction, without reference to the manner of its exercise within lawful bounds. Ei'rors, if any arise, can be reviewed by us only on appeal or writ of error. The writ of prohibition is refused.

Judge Gantt concurs ; Judge Bakewell dissents.