State Ex Rel. Gralike v. Walsh

483 S.W.2d 70

• Court: Supreme Court of Missouri
• Decided: July 17, 1972
• Docket: 57995
• Status: Published

Opinions

FINCH, Chief Justice.

This is an original proceeding in prohibition which seeks to prohibit respondent election boards from placing the name of intervenor Storts on the Primary ballot as a candidate for the Democratic nomination for State Senator from the First Senatorial District. The basis of such request is the contention that Storts, when he filed his declaration of candidacy on March 8, 1972, was not a resident of said district and that he did not comply with the requirement contained in Article III, § 6, of the Constitution of the State of Missouri, V.A.M.S. (also § 21.070, V.A.M.S., which is identical in language with Article III, § 6), that “Each senator * * * shall have been * * * a resident of the district which he is chosen to represent for one year, if such district shall have been so long established, and if not, then of the district or districts from which the same shall have been taken.” We make our rule in prohibition absolute.

We issued our provisional rule on June 27, 1972, and directed that issues of fact raised by respondents’ returns should be heard by Judge Ninian M. Edwards, Presiding Judge of the Twenty-first Judicial Circuit, pursuant to Supreme Court Rule 97.04, V.A.M.R. He was directed to make findings of fact and then make return of said proceedings to this Court. This has been done and Judge Edwards’ findings and conclusions certified to us are as follows :

FINDINGS OF FACT

“1. That the Plaintiff, Donald J. Gra-like, resides at 648 Buckley Road, St. Louis County, Missouri, which is within the First State Senatorial District, and which said district is described in Plaintiff’s Exhibit 1, received herein in evidence.

“2. That the Plaintiff, Donald J. Gra-like, is a Democratic Party candidate for the office of State Senator from said First State Senatorial District, having duly filed therefor.

“3. That the Intervenor-Respondent, Brick Storts, III, has filed with the Secretary of State of the State of Missouri, on March 8, 1972, a declaration for Democratic Party candidate for nomination for the office of State Senator for the First State Senatorial District.

“4. That Intervenor-Respondent, Brick Storts, III, purchased a certain parcel of property known as 93G of Building 93 in Chateau de Ville condominium section No. S, on October 1, 1971, and which said property is located at 4290 Chateau de Ville, St; Louis County, Missouri, and said property is within the First State Senatorial District.

“5. That the Intervenor-Respondent, Brick Storts, III, occupied property at 200 South Brentwood Road, Clayton, St. Louis County, Missouri, from and after April, 1971, continuously, 'until April 28, 1972, which said property was not within the said First State Senatorial District.

“6. That on or about the 28th day of April, 1972, the Intervenor-Respondent, Brick Storts, III, physically occupied his property at 4290 Chateau de Ville, St. Louis County, and that on or about that date he sub-let his premises at 200 South Brentwood Road, Clayton, Missouri, for the balance of the term of his lease, to-wit until March 3rd, 1972 (sic).

“7. That on the 4th day of April, 1972, the said Intervenor-Respondent, Brick Storts, III, registered to vote with the St. Louis County Board of Election Commissioners showing for the first time his address as being at 4290 Chateau de Ville, St. Louis County, Missouri.”

CONCLUSIONS OF LAW

“That, based upon the above Findings of Fact, the Court does find and conclude as a matter of law, that the Intervenor-Re-spondent, Brick Storts, III, did not reside within the First State Senatorial District for the period of time required by law, and that by reason thereof, is not qualified for the office of State Senator of the First State Senatorial District.”

The factual determinations by Judge Edwards are not disputed in the briefs filed in this Court. The only contentions asserted are these:

(1) That this Court is without jurisdiction to determine the qualifications of a candidate for the State Legislature for the reason that the exclusive right of determining such qualifications is reserved by Article III, § 18, of the Missouri Constitution to the legislative body of which he seeks to become a member. In this connection, it is contended further that for the Court to decide such question would violate Article II, § 1, of the Constitution of Missouri relative to separation of powers;

(2) Assuming, arguendo, that the Courts do have jurisdiction to determine qualifications for candidacy, prohibition is not the appropriate remedy because respondent boards are performing merely ministerial duties, as to which they are not subject to prohibition; and

(3) The durational residency requirement of one year’s residence in the district as a condition to eligibility to serve as a State Senator violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.

We consider these questions in the order stated.

Article III, § 18, of the Missouri Constitution has been construed and applied by this Court in the recent cases of State ex inf. Danforth v. Banks, Mo., 454 S.W.2d 498, and State ex inf. Danforth v. Hickey, Mo., 475 S.W.2d 617. In Banks the ouster of a member of the House of Representatives was sought by quo warranto on the basis that he was not qualified for the office because he had not been a resident of the district one year before his election and hence was improperly seated. Hickey involved a proceeding to oust a Representative on the basis he had moved his residence from his district during his term of office, in violation of Article III, § 13, of the Missouri Constitution. In both cases this Court held that Article III, § 18, makes the appropriate legislative body the exclusive forum for determining the qualifications, election and returns of its own members, and that this Court did not have jurisdiction in either case.

In the case now presented, we deal with a different situation. Various persons have filed declarations of candidacy seeking to be nominated in the Primary Election as the candidate of the Democratic Party for State Senator for the district in question. One of these persons is interve-nor Storts. He is not presenting himself at this time as the duly elected Senator from that district. He seeks only the opportunity to be a candidate for the nomination.

Respondents contend that the restrictive language of Article III, § 18, applied in Banks and Hickey, governs in this instance as well. We do not agree. The constitutional language in question provides that “Each house * * * shall be the sole judge of the qualifications, election and returns of its own members; * * * ” Such language, in our view, is not broad enough to prevent the determination by the courts of whether one who seeks to be a candidate at a Primary Election possesses the requisite qualifications.

Two cases cited to us are consistent with this conclusion. In State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, the issue was whether one Nangle should appear on the Primary ballot as a Republican candidate for State Senator. The contention was made that he filed his declaration of candidacy with the Secretary of State when it should have been filed with the Board of Election Commissioners. When the Secretary of State certified Nangle as a candidate to the Board of Election Commissioners and over protest they proposed to print his name on the ballot, prohibition was sought. No mention was made of Article III, § 18, of the Constitution, but the Court issued a permanent writ of prohibition, keeping Nangle’s name off of the Primary ballot.

In State ex rel. O’Reilly v. Kirkwood, Mo.App., 407 S.W.2d 613, an election contest had been filed contesting the nomination of O’Reilly as the Democratic nominee for State Representative. Mr. O’Reilly objected to a trial of the case because no summons had been served on him. When the case was set, over his objection, he sought prohibition in the St. Louis Court of Appeals. Again, no reference to Article III, § .18, of the • Constitution was made. The Court held that the Primary Election Code (§§ 124.010 to 124.050, V.A.M.S.) required service of a summons and that without such service a hearing could not proceed, but went on to say, 407 S.W.2d 1. c. 614: “It appears, however, that there may yet remain sufficient time for service of such summons and therefore our final judgment in prohibition is that the respondent is prohibited from proceeding to hear the election contest until such time as a summons informing the contestee of the time of the hearing shall be served upon him in accordance with the law.” In so stating, the Court of Appeals necessarily considered the Primary Election statutes as being applicable to elections to select nominees for the General Assembly.

To repeat, the position of respondents is that the entire election process of members of the General Assembly, including examination of whether prospective candidates for the nomination possess constitutionally mandated qualifications, is to be examined and passed upon only by the appropriate legislative body, and that the courts have no jurisdiction whatsoever in this area. This, say respondents, is the scope and meaning of Article III, § 18, of the Constitution.

This interpretation of the constitutional provision would mean that a 15-year-old resident of Illinois could file a declaration of candidacy for State Senator in Missouri, and even though the facts were undisputed, the courts could do nothing to prevent his name from appearing on the ballot. Respondents say that the solution rests only in the hands of the electorate and the body in which the particular person seeks membership. Likewise, if a Primary Election was held and there were widespread charges of counting and voting fraud, the courts, according to the position of respondents, would be unable to accept and hear a Primary Election contest under the Primary Election contest statutes adopted by the General Assembly.

We do not accept respondents’ interpretation of the scope of Article III, § 18. In our view, it applies when a General Election has been held and one then presents himself for membership, and, of course, it also applies in instances after the person has been seated and question as to his qualifications and right, to remain a member arises. This interpretation appears to be in harmony with procedure which the General Assembly has established. In §§ 124.110 through 124.150, V.A.M.S., the General Assembly has made provision for a procedure to be followed when there is a contest of the propriety of the election of a member of the General Assembly at a General Election. Those statutes provide the notice to be given, the manner of taking depositions, and certifying testimony, with the ultimate decision as to the contest to be made by the appropriate house of the General Assembly. No such procedure has been established by the General Assembly with- respect to Primary Election contests, indicating, we think, that the General Assembly had in mind that Primary Election controversies would be decided by the courts.

Intervenor urges that the interpretation we adopt would result in interference with the prerogative of the legislative body under Article III, § 18, to pass upon and decide the question of qualification and election of its members. He suggests that if a court passes upon the qualifications of one to be a candidate in the Primary Election and holds that such person is a proper candidate, that issue will already have been decided and be binding upon the legislative body if that person is successful and ultimately presents himself for seating; or, in the alternative, the judicial decision is nullified and rendered meaningless. We do not agree with this conclusion. The legislative body will retain its right under Article III, § 18, to judge the qualifications of its members. The fact that a court has concluded that one had sufficient qualifications to be a candidate will not be res adjudicata so far as the legislative body is concerned when it ultimately passes upon qualifications of that person to be a member of the legislative body. The action of the court will settle only the proposition that the person shall not be denied the right to be a candidate. No violation of the separation of powers doctrine occurs.

The next contention presented by respondents is that prohibition is not the proper remedy even if it be determined that the courts have jurisdiction to determine qualifications of a person seeking a place on the ballot as a candidate for legislative office. This argument is based on the proposition that the acts to be performed by respondent election boards are purely ministerial, rather than judicial in nature, and as such not subject to prohibition.

We conclude that this question has been settled in this state by the cases of State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609; Mansur v. Morris, 355 Mo. 424, 196 S.W.2d 287; and State ex rel. Danforth v. Alford, Mo., 467 S.W.2d 55, in all of which prohibition was utilized to prohibit clerks or election boards from placing on the ballot the name of the candidate found to be without requisite qualifications for the office. In Alford, the most recent of those cases, this Court said, 467 S.W.2d 1. c. 57:

“Finally, we think it should be noted that prohibition is an appropriate remedy to prevent an election official from having the name of an ineligible candidate printed on the ballot. This court so held in State ex rel. Bates v. Remmers, 325 Mo. 1175, 30 S.W.2d 609, and Mansur v. Morris, 355 Mo. 424, 196 S.W.2d 287. It is certainly in the public interest that ineligible candidates be excluded from the ballot. This for the reason that if such a candidate should receive the highest number of votes the election, in effect, would have been a nullity and the county and other candidates would be put to the expense and trouble of another election. And, even if the ineligible candidate did not receive the highest number of votes there would be the undesirable result that those who voted for him were, in effect, disfranchised.”

Respondents cite and rely particularly on the case of State ex rel. Wulfing v. Mooney, 362 Mo. 1128, 247 S.W.2d 722, as authority that prohibition is an inappropriate remedy. However, Mooney does not sustain respondents’ position. In that case the Court distinguished various cases in which election boards had been prohibited from doing certain acts. One of those cases- was State ex rel. Bates v. Remmers, supra. In discussing that and other cases, this Court said, 247 S.W.2d 1. c. 726:

“In the above cases the election boards in each particular instance were not applying the applicable law to the question they had before them and we issued our writs of prohibition for that reason. On the other hand, in the case at bar the board of election commissioners were complying with the applicable statutes and were therefore acting in a ministerial capacity.”

In the instant case the boards of election commissioners are not following the language of Article III, § 6, of the Missouri Constitution or § 21.070, V.A.M.S., when they propose to print Storts’ name on the ballot. Therefore, the earlier election board cases such as Remmers are applicable here. Judge Edwards has found that intervenor Storts moved to this Senatorial District in April, 1972, that he has not lived in the district one whole year next before the upcoming General Election, and that he is not qualified under the provisions of Article III, § 6, of the Constitution or § 21.070, V.A.M.S. Hence, under our prior decisions, prohibition will lie.

In oral argument counsel did not argue that the courts would be powerless to act if jurisdiction is assumed, but suggested that perhaps mandamus, rather than prohibition, would be the appropriate remedy. In that connection, we repeat what this Court said in Mansur v. Morris, 196 S.W.2d 1. c. 294:

“And unless we assume the failure of Sec. 11558 to provide a procedure for the correction of errors in primary ballots means such corrections cannot be enforced (which assumption we cannot make), then it follows that the remedy under that section also should be nontechnical. Hence we cannot permit ourselves to be impaled on narrow distinctions, between prohibition, mandamus, certiorari and injunction. Ordinarily mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers. State ex rel. Richardson v. Baldry, 331 Mo. 1006, 1011(2), 56 S.W.2d 67, 69, 70(2). The decisions reviewed in this opinion compel the conclusion that the duties of the county clerk under Sec. 11558 are not purely ministerial; and that he has a measure of discretion.

“But in either event he cannot usurp judicial functions. Yet in this case he has, in effect, assumed to decide that relator Mansur is eligible for the office of magistrate, and that his name as a candidate therefor should go on the primary ballot— notwithstanding the decision of State ex inf. McKittrick v. Wilson, supra, 350 Mo. 486, 166 S.W.2d 499, 143 A.L.R. 1465, decided in 1942, and the opinion of the Attorney General rendered on the specific facts involved here. This is not meant as a criticism. He probably took that position in order that an adjudication of the question might be obtained. But we are convinced that under the foregoing facts prohibition was the proper remedy below.”

We overrule respondents’ second contention.

Finally, intervenor Starts urges that the durational residency requirement for qualification for the office of State Senator (Article III, § 6, of the Constitution and § 21.070, V.A.M.S.) fails to provide equal protection of the laws to all classes of citizens and hence violates the Fourteenth Amendment to the Constitution of the United States. He relies on the cases of Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567; and Bolanowski v. Raich, D.C., 330 F.Supp. 724.

Dunn was a case involving whether residency requirements of one year in the state and three months in the county as a condition to voting violated the equal protection clause of the Fourteenth Amendment. The Supreme Court of the United States held that a compelling state interest for these durational voting requirements was not shown and hence they were excessive and violated the equal protection clause. The opinion did not consider or deal with a requirement that one be a resident of the state or county a prescribed period of time in order to be a candidate and, if elected, serve as a state or county officer. The latter, in our view, is a different question than that of what durational residency may be required under the equal protection clause as a prerequisite to voting. We do not consider that Dunn mandates a determination that the requirement of residency of one year in the senatorial district to be a state senator is in violation of the Fourteenth Amendment.

Turner v. Fouche, supra, was a case involving the constitutionality of the method used in many Georgia counties to select juries and school boards. Without getting into all the facts, it suffices to say the case involves whether the constitutional and statutory plan was violative of the equal protection clause of the Fourteenth Amendment, and whether the procedure, even if constitutional, was unconstitutionally administered so as to result in the selection of a disproportionate percentage of whites over blacks. It also involved the validity of limitation of school board membership to freeholders. The Court held that the requirements amounted to invidious discrimination and were invalid. It is clear that Turner does not rule the question presented in this case.

Finally, intervenor cites a United States District Court case from Michigan, Bolanowski v. Raich, 330 F.Supp. 724. That case involved the constitutionality under the equal protection clause of the Fourteenth Amendment of a requirement in the City Charter of Warren, Michigan, that one must have been a resident of the city three years to be a candidate for mayor. The Court held the requirement to be vio-lative of the equal protection clause. However, the Court, 1. c. 729, in discussing whether the rulings with respect to voting rights should apply to provisions establishing residency requirements for office holding, stated: “The question seems to be an open one at the Supreme Court level.”

We agree with the statement in Bolan-owski that the Supreme Court has not held that durational residency requirements which are conditions for becoming a candidate and, if elected, for holding state or county office, are violative of the equal protection clause. We recognize that Bo-lanowski concluded that the three-year residency requirement in the case of Warren, Michigan, did violate the Fourteenth Amendment, but in our view the one-year residency in the district required by the Constitution of Missouri to be eligible for the office of State Senator does not violate the equal protection clause of the Fourteenth Amendment.

Durational residency, citizenship, and age requirements as conditions to holding office, both federal and state, have been provided throughout the history of the country. Examples are found in the Constitution of the United States which makes provisions of this character with respect to the President (Article II, § 1), the Senate of the United States (Article I, § 3), and the House of Representatives (Article I, § 2). The State of Missouri has such requirements with respect to the Governor of the State (Article IV, § 3), State Senators (Article III, § 6), State Representatives (Article III, § 4), and Judges of the various courts of the state (Article V, § 25). Absent a controlling decision by the Supreme Court of the United States holding to the contrary, we hold that the equal protection clause of the Fourteenth Amendment does not eliminate the right of the State of Missouri to establish and enforce the one-year residency in the district requirement as a condition to serve as State Senator, and we overrule this contention by intervenor Storts.

Although not necessary to the decision of this case, we add this caveat with reference to future applications for extraordinary writs with respect to election questions in comparable situations.- There were compelling reasons for this Court to hear this particular case and to settle the question of whether our decisions in Banks and Hickey are applicable where qualification questions for membership in the General Assembly arise in connection with a Primary Election. Having resolved that question, subsequent applications for extraordinary relief of this nature should be made to the Circuit Court, pursuant to Supreme Court Rule 84.22, V.A.M.R. Sufficiently prompt handling and final disposition of such cases, needed in view of the necessarily short timetable involved, can and should be given. This will necessitate that such applications for extraordinary writs be made at the earliest opportunity after the question arises, and that thereafter the case be handled with dispatch by all involved in order not to interfere with the orderly functioning of the election process.

Provisional rule in prohibition made absolute.

DONNELLY, MORGAN, HOLMAN and HENLEY, JJ., concur. SEILER, J., concurs in part and dissents in part in separate opinion. BARDGETT, J., not participating.