Bradbury v. Wightman

134 S.W. 511, 232 Mo. 392, 1911 Mo. LEXIS 20

• Court: Supreme Court of Missouri
• Decided: February 9, 1911
• Status: Published

Opinions

WOODSON, J.

At a general election held in this State on November 6, 1910, the plaintiff was a candidate for the office of Railroad and Warehouse Commissioner on the Democratic ticket, and the defendant was a candidate for the same office on the Republican ticket. On the face of the returns, the latter received a majority of the votes cast, and was duly declared elected.

In proper time plaintiff instituted contest proceedings in this court against the defendant, challenging the legality of his election on several grounds, and asking that he be ousted from said office, and that the former be declared elected. The defendant filed a motion to dismiss the proceedings, for the reason that this court had no jurisdiction to hear and determine a contest for the office of Railroad and Warehouse Commissioner. It is thus seen that the sole question presented for our determination is, has this court jurisdiction over the cause?

The right To contest an election is not a natural right, such as the right of life, liberty and property, but exists, if at all, in the written laws of the State —the Constitution or statutes.

Counsel for contestor bases his right of contest upon section 9' of article 8 of the Constitution of 1875, and section 7056, Revised Statutes 1899, now section 5951, Revised Statutes 1909.

Said constitutional provision reads as follows: “The trial and determination of contested elections of all public officers, whether State, judicial, municipal or local, except Governor and Lieutenant-Governor, shall be by the courts of law, or by one or more of the judges thereof. The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate The manner of trial and all matters incident thereto; but no such law, assigning jurisdiction or regulating its exercises, shall apply to any contest arising out of any election held before said law shall take effect.”

In pursuance to- that constitutional mandate, the. Legislature enacted said section 7056, which reads as follows: “All contested elections for judge of the Supreme Court, judge of the. St. Louis and Kansas City Courts of Appeals, Superintendent of Public Schools, Secretary of State, State Auditor, State Treasurer and Attorney-General, shall be heard and .determined by the Supreme Court, or any three judges thereof in vacation: Provided, that no judge of said court, who is a contestant or contestee in such election, shall be permitted to hear and determine the same. ” .

This section as it now exists was first enacted April 26, 1877 (Laws 1877, p. 248, sec. 1). Prior thereto all contests of elections for State officers mentioned in said section were contestable in the State Senate.

By reading said constitutional provision, it will be seen that it undertakes to do two things: first, it takes from the Senate the power to hear and determine contested elections of all public officers, whether State, judicial, municipal or local, except Governor and Lieutenant-Governor ; and, second, it confers that power and jurisdiction upon courts of law, or one or more of the judges thereof, as the Legislature may designate by general law. It should also be observed that said constitutional provision does not itself undertake to name the courts or the judges who shall hear and determine such contested elections, but in express terms it empowers the Legislature to designate the courts or judges who shall try and determine the same.

The question now presents itself, has the Legislature designated any court or judge to try and determine a contested election for the office of Railroad and "Warehouse Commissioner?

Section 7056 provides that the Supreme Court shall have jurisdiction to hear and determine contested elections for Supreme Judge, judges of the St. Louis and Kansas City Courts of Appeals, Superintendent of Public Schools, Secretary of State, State Auditor, State Treasurer and Attorney-General; but said section makes no provision whatever authorizing this court to hear and determine a contested election for the office of Railroad and Warehouse Commissioner ; nor has our attention been called to any other' section of the statute empowering this court to do so; and after diligent search, we have been unable to find any such statute; and, therefore, conclude that none such exists, and, further, that the law has made no provision for a contest of the election to that office, in this court at least.

Practically the same question here presented was involved in the case of State ex rel. Francis v. Dillon, 87 Mo. 487. There a certificate of election was duly issued to the relator, as mayor of the city of St. Louis; and Mr. Ewing, the Republican candidate who ran against relator for the office of mayor, filed in the circuit court of the city of St. Louis a proceeding to contest. the election. Judge Dillon, one of the judges of said circuit court, assumed jurisdiction of said cause and proceeded to try and determine the contest, when a writ of prohibition was issued from this court requiring him to show cause, etc. The respondent filed his return, setting up, among other things, the foregoing facts in justification of his claim of jurisdiction to try the contest. In that case the contestor contended that section 5528., Revised Statutes 1879, gave the circuit court of the city of St. Louis the power to hear' and determine an election contest for the .office of mayor of the city of St. Louis. That section only provided for contests of elections of county officers in the various counties of the State, and was silent as to a contest of election for the office of mayor of the city of St. Louis. It was there contended that the provisions of the statute were broad enough, and if properly construed would include the officers of the city of St. Louis, notwithstanding the city was not mentioned in the statute. In that case, this court held that the Legislature had neglected to obey the 'constitutional mandate before mentioned by failing to provide for contest of the office of the mayor of the city of St. Louis, and for that reason the circuit court had no jurisdiction to hear and determine the cause; and for that reason Judge Dillon was prohibited from proceeding with the trial of the cause.

The only difference between that case and this one. is the fact that there no jurisdiction was given the circuit court to try and determine any contested election case for municipal offices, while here the statute gives this court jurisdiction to hear and determine all contested election eases for state officers, except that of Railroad and Warehouse Commissioner. There is no difference in principle between the two cases. That case is controlling in this.

We are, therefore, of the opinion that the motion to dismiss the proceedings should be sustained, and it is so ordered.

All concur except Graves, J., who dissents in separate opinion; Kennish and Brown, JJ., not sitting.