State Ex Rel. Kimbrell v. Becker

237 S.W. 117, 291 Mo. 409, 1922 Mo. LEXIS 240

• Court: Supreme Court of Missouri
• Decided: January 14, 1922
• Status: Published

Opinions

JAMES T. BLAIR, C. J.

Mandamus. Tbe purpose of tbis proceeding is to compel respondent, tbe Secretary of State, to accept and file certain papers tendered by relator and contended by bim to show that be is tbe nominee of tbe Republican Party in tbe Fifth Senatorial District for delegate to tbe approaching Constitutional Convention. It is shown by tbe briefs.filed in this case and also appeared from tbe oral argument that tbe Secretary of State is in reality but a nominal party to tbis controversy. Tbe parties really interested are tbe contending elements in tbe Republican organization in Jackson County, and by them and their counsel tbe case has been presented. The Attorney-General’s appearance in tbe case was, therefore, merely formal. He made no argument and filed no brief. A return was duly filed and relator demurred.thereto. Tbe facts are thus settled by tbe pleadings, and tbe questions presented rise solely out of differences of opinion as to the law governing tbe case.

A statement of tbe essential facts as admitted by tbe pleadings is necessary. Jackson County contains two senatorial districts, the Fifth and Seventh. These two districts occupy tbe entire county and contain no territory outside the county. In August, 1920, tbe county contained more than 206,000 and less than 400,000 inhabitants. In the county is situated tbe city of Kansas City. It contains sixteen wards. Outside Kansas City there are seven townships. At tbe primary election in 1920 tbe ' voters of tbe Republican Party in Jackson County elected two committeemen from each of tbe sixteen wards in tbe city and from each of tbe seven townships in tbe county outside the city, forty-six in all. These forty-six constituted tbe Republican County Committee for Jackson County. One of these, a committeeman from tbe Twelfth Ward, resigned, and tbe remaining forty-five members of tbe committee elected Mr. Henry M. Beardsley, a gentleman of high standing and character, to fill tbe vacancy. Mr. Beardsley, having thus become a member of the county committee, was thereafter elected by that committee to the position of chairman thereof. Subsequently, and fol-owing the enfranchisement of women, the county committee authoized and approved the election of a women’s committee of two members from each ward in the city and each township in the county. These two committees worked together during the campaign of 1920. The membership of the two committees has remained the same until this time. Mr. Beardsley has continued to be and now is the chairman of the County Republican Committee. When the time came for the nomination of Republican candidates for delegates to the Constitutional'Convention from the Fifth and Seventh senatorial districts, Mr. Beardsley was of the opinion that by reason of his being chairman of.the Republican County Committee, he, in his proper person, constituted (1) the entire Republican Senatorial Committee in and for the Fifth Senatorial District, and (2) the entire Republican Senatorial Committee in and for the Seventh Senatorial District. It appears that this view was not concurred in by a majority of the Republican County Committee, of which Mr. Beardsley was chairman, Nevertheless, relator says, acting upon the view he entertained, Mr. Beardsley, in his asserted capacity as a senatorial committee for the two districts, or as two senatorial committees, one for each district, proceeded as such committee or committees, with the approval of the vice-chairman of the county committee, to decide and determine the manner in which the Republican nominees for delegates to the Constitutional Convention in the two districts should be selected, to-wit: “By nominating conventions composed of delegates chosen at a primary election to be held by said Republican Party in said senatorial districts in said county and state.” No publicity is alleged to have been given this determination, but thereafter and on December 21, 1921, Mr. Beardsley, as county chairman, mailed to. each member of the county committee and to each member of the women’s committee a notice as follows:

“It is necessary that the Republican Party in the Fifth and Seventh State Senatorial Districts, nominate immediately, ont of each district, a Republican to he voted for at the coming election, as a member of the State Constitutional Convention. An advisory meeting is called for the membership of the Republican County Committee and of the Woman’s Republican County Committee for ‘2 o’clock p. m. Saturday, December 24,1921, at the Francis First Room, Baltimore Hotel, Kansas City, Missouri, at which time and place arrangements will be made for the nomination of such candidates. Be sure and be present at this meeting as it is a very important one. Faithfully yours

“Henry M. Beardsley,

“County Chairman.”

At the time and place named in this notice but eleven of the forty-six members of the Republican County Committee and only fifteen of the forty-six members of the Women’s Republican County Committee appeared. At the meeting on December 24, 1921, “the manner of determining the selection of delegates as theretofore determined upon by said Henry M. Beardsley, as said senatorial committee and as chairman of said Republican County Committee, and as also approved by said Hugh R. Ennis, vice-chairman, was unanimously approved and adopted by” the eleven members of the County Com‘mittee and the fifteen members of the Women’s County Committee who were in attendance, ‘ ‘ and the details and arrangements for said ballot primary so to be held for election of candidates for Republican delegates in each of said Fifth and Seventh senatorial districts were arranged for. It was determined that said primary election was to be held on the afternoon of Wednesday, December 28, 1921, from two to seven p. m., the voting places to be established in each ward or part of ward and each township or part of township in each of said two senatorial districts, and further that at said ballot primary delegates to the senatorial conventions should be elected, one delegate for each 1000 or fraction of 1000 votes cast for Hon. A. M. Hyde” in November, 1920. The number of delegates to each, convention was stated and the place of meeting for each, convention determined and the time of meeting fixed as December 29, 1921.

Of what he had determined, acting as a senatorial committee or committees, or of what was approved or determined at the meeting at the Baltimore on December 24, 1921, Mr. Beardsley gave no formal notice to the Re-' publicans of Jackson County. That is to say, neither as a senatorial committee or committees nor as chairman of the County Committee, nor otherwise, did he give or cause to be given or published any signed or formal notice of any action of his or of what had occurred at the meeting at the Baltimore or of the date or time of the primary or of the voting places which were selected. In fact, it does not appear from relator’s allegations, except by inference, that either Mr. Beardsley or committee members fixed the voting places, and does not appear, in any event, which of them did so. News articles appeared in two papers and constituted the notice the public received.

In the Kansas City Star of Sunday, December 25, 1921, appeared a news item headed; “A Code Vote By Ballot. Republicians will name senatorial delegates Wednesday. Representatives from Fifth and Seventh Districts will select Constitutional Convention delegates Thursday.” The article which followed stated that:

“Ballot primaries will be employed by the Republicans of Jackson County to elect delegates to two senatorial conventions, which in turn will nominate two party candidates for district delegates to the Constitutional Convention.

“At a meeting yesterday of the men and women of the Republican County Committee, plans were made for the nomination of the Constitutional delegates.

“A Booth in Every Ward.

“The Committee adopted the suggestions of Henry M. Beardsley, chairman, for a ballot primary in each ward and township from 2 to 5 o’clock next Wednesday. One voting place will be provided in each ward and township, the locations to be announced to-morrow.”

The article then gave the number of delegates to he elected, and stated, in a general way, the dividing line between the two districts. “A loud objection” was said to have been made to the use. of a certain hotel as a ward meeting place. It was stated that “volunteers—about two to each ward—must be obtained to take charge of the ballot boxes.” It was also said that Mr. Beardsley suggested that “slates of delegates for the nominating conventions be selected in each ward and township and posted at the polling places.” It also appeared from the article that the district conventions would be held at different places and that certain gentlemen, two of them, were mentioned for the nominations for the Constitutional Convention. This article appeared on an inside page of the paper’s Sunday edition.

On Tuesday, December 27, 1921, there appeared in the Kansas City Journal an article under the headline: “Faction Fight for Delegates on tomorrow. Split Districts O. 0. P. to vote separate sets at Primaries and Senatorial Conferences.” An article . followed which stated that twenty-four members of the county committee who claimed that Mr. Beardsley had no authority to direct the manner of selecting nominees for the Constitutional Convention had called a meeting of the county, senatorial and congressional committees of Jackson County for Thursday evening’,-and that organization Republicans would ignore the plans of Mr. Beardsley and the anti-organization faction to choose delegates in the manner already detailed. It was stated that “Mr. Beardsley announced his plans for selection of the delegates following a meeting of committeemen and eommit-teewomen in his office the previous Saturday. He and his friends in the committee contend the meeting was legally called and that its decisions as to methods for selection of the Constitutional Convention delegates will stand.” It was then stated that the organization faction said there were only thirty-one persons at Mr. Beardsley’s Saturday meeting and that but eleven of these were members of the Men’s County Committee; that the twenty-four organi-sation members of the County Committee “at their meet ing Thursday night will take the position that in the two senatorial districts of Jackson County, the senatorial committees are composed of ward or township committeemen whose ward or township lies wholly or in part in the senatorial'district. They point out that under the state law the senatorial committee is composed of the chairman of the "county committees whose counties are within the senatorial district. Jackson County has two senatorial districts within itself. In. St. Louis, where there are five senatorial districts within the city, the senatorial committees are composed of ward committeemen whose wards are within the senatorial district.” The article then proceeds to forecast the method of nomination likely to be recommended by the organization committeemen, refers to an opinion of the Attorney-General that the Convention would be the judge of the eligibility of any member to sit; states that the organization Republicans have a majority of the County Committee, and refers to the Women’s Committee, which both sides in this court agree and admit has no official standing in the Republican Party of Jackson County such as to give its voice or vote any weight in-this controversy. This admission of the parties must be accepted by'us as a fact in the case, and its accuracy is not now open to question or decision, because of that admission.

The Journal article also stated that Mr. Beardsley announced the location of the polling places in the wards and in six of the townships. In four wards two polling places, each, were designated, fin each of the other twelve but one was named. In each of six townships one place was designated. In Brooking Township, it was said, no place had yet been selected.

On December 27, 1921, an article appeared in the Kansas City Times under the heading: “A G. O. P. Delegate Vote. Polls open five hours to-morrow in the fifth and seventh districts. Those elected will select one delegate from their respective senatorial division to State Constitutional Meet.” The article restated the matter in the headlines, gave the hours of opening and closing tlie polls, two to seven p. m., and the time and place of meeting of each district convention. Then followed a list of the polling places.

These articles constitute the notice given so far as the record shows. If any formal call for an election was made it does not appear in the record in this case.

Relator alleges, and it is not denied, that the ballot primaries were held as “so proposed and determined upon and that the delegates so elected” met in senatorial conventions which organized, and that for the Fifth District nominated relator in this case for the position of “Delegate to the Constitutional Convention.” A certificate of nomination was prepared and signed by the chairman and secretary of the convention for the Fifth District. No acknowledgment or other formality was deemed necessary. This certificate was presented to the Secretary of State on December 30, 1921. That official, respondent here, refused to accept or filé the certificate.

It appeared that respondent had already received and filed a certificate of nomination of a Republican from each senatorial district in Jackson County whose nomination papers showed they relied upon nominations which resulted from a manner of nomination determined upon by a majority of the members of the Jackson County Republican County Committee, Republican Congressional Committee, and, it is claimed, Republican Senatorial Committee. These certificates were on file with respondent when relator’s certificate was presented. Respondent determined to leave the solution of the difficulty to the courts. The particular facts' respecting the nominations of the gentlemen whose certificates were filed by respondent, need not, in the view we take of the case, be set out.

It is admitted by relator that he made no objection in writing to the nomination certificates on file prior to the expiration of the time for filing such certificates. It is also alleged by respondent and admitted by relator that “ever since the enactment of the general primary election law in 1907, it has been the universal usage, cus tom and practice of political central committees of the various cities and counties in this State of Missouri, and particularly of the Republican Party, in cities of the population and class of the City of St. Louis, Missouri, and in counties in the State of Missouri which constitute one or more state senatorial districts, and of Jackson County, Missouri, for such County Central Committee and committeemen, for their respective political parties, to act for and as such senatorial committees and committeemen in the various wards and townships, and parts of wards and townships in which they have been elected and selected as such county central committeemen within the various senatorial districts, and to fill any and all vacancies which may occur from death, resignation or other cause, and to- certify the name so selected by a majority of the members elected as such committeemen, to the Secretary of State, and to otherwise act for and represent and act for their party in any and all matters between conventions duly called in conformity with the law.”

I. The case is one which it was necessary for counsel to present and the court to decide speedily since the names of the candidates must soon he certified out by respondent.

There is no disposition on the part of relator to question the settled rule that one who seeks relief by the writ of mandamus must show himself to have a clear legal right to the performance of the particular act the doing of which he seeks to compel. On the contrary, it is" relator’s contention that he has met the requirements of this rule. His case has been presented with vigor and ability, and has been opposed in the same way.

Relator contends that (1) Mr. Beardsley, because he was chairman of the Jackson County Republican Committee, constituted the Senatorial Committee for that county, for both the senatorial districts therein contained and was, therefore, exclusively empowered to determine the manner of selecting Republican nominees for the Constitutional Convention; (2) that the notice given, if notice was required, was sufficient in all respects; (3) that the certificate of nomination presented was in due form under the law and presented in due time; and (4) that respondent should be compelled to receive and file the certificate of relator and certify it out in due course.

II. The statute (Sec. 4848, R. S. 1919) which provides for party committees furnishes the basis for the difference of opinion .in this case respecting Mr. Beardsley’s claim that he, alone, constitutes the senatorial committee or committees for the Fifth and Seventh senatorial districts. Counsel seem to agree that the amendment of 1921 (Laws of 1921, p. 378) has no application to this controversy. The portion of Section 4848 in dispute reads: “Each county committee . . . shall meet . . . and organize by the election of one of its members as a chairman . . . and the chairman so elected shall, by virtue thereof, become a member of the party congressional, senatorial and judicial committee of the district of which his county forms a part.” Relator contends that by virtue of this provision the chairman of the Jackson County County Committee is the entire senatorial committee or committees for the districts in that county. Opposing counsel contend it shows a clear failure to provide for any statutory senatorial committees in Jackson County and thereby remitted the matter of party organization and control, so far as senatorial districts are concerned, to the parties themselves. Counsel do not cite many authorities. The contention of relator goes to the extent that the nominations made otherwise than under authority of Mr. Beardsley, as a committee, are entirely and wholly void. The admission that in Jasper and Buchanan Counties and in the city of St. Louis the parties, and particularly the Republican Party, have continuously, to the time of the filing of the return, acted on the theory that the county committees in the two counties and the members of the city committee in St. Louis constitute the. senatorial committees for those counties and that city, involves an admission that nominations for delegates to the Constitutional Convention in those counties and in St. Louis have been made under authority of the county and city committees acting as senatorial district party committees. If this is true, and it is admitted, and if such action is void, the result might he one of considerable importance.

It is quite clear that Section 4848 does not in terms provide that th'e chairman of the county committee in Jackson County shall constitute the senatorial committee or committees for that county. If the chairman does become such committee or committees that result must be arrived at from a construction of statutory language which is somewhat ambiguous. On its face that language applies to a chairman of a county committee in a county which constitutes a part of a district. It is at least reasonably open to the construction that a county, like Jackson, which constitutes two entire districts and is not a pa'rt of any district, is not included in its language. We do not say that it might not be construed, also, to be intended to make general provision for the State and that its language simply evidences an inadvertent and awkward use of words to accomplish that end. In solving the question as to which of these intents was the legislative intent in passing the act there is little in .the language of the statute to point to the one rather than the other. In these circumstances it is necessary to turn to such aids to construction as are legally available. The courts resort to administrative or official construction when statutory ambiguities are, as here, somewhat balanced. Of this statute the officials of the local party organization are the administrators. It is admitted in this case that for fourteen years both parties have construed it against relator’s claim, and party action for all that time has been carried on upon the theory opposed to that contended for by relator’s counsel. This, according to well known canons of construction, is of importance as pointing to the correct construction of an ambiguous statute. Further, the serious character of the result of relator’s construction, which has already been pointed out, is to be considered. In the circumstances, under the settled rules of construction, the statute is to be construed as presenting a simple case of legislative omission in so far as concerns senatorial committees' in Jackson County. In that situation the party might act through such committee or committees as it chose. It is admitted it chose to leave its senatorial district business to ,tke county committee. The fact that Section 4848 specifically provides that the county committee shall constitute the party congressional committee in counties like Jackson County does not point to either proffered construction as the correct one. ' It does not make a case for the application of the rule that the expression of one thing excludes another thing. If relator’s construction of the quoted language were correct, the provision respecting the congressional committee would prevent the chairman of the county committee from becoming the congressional committee for a county like Jackson. If opposing’ counsel construe the statute correctly, then the clause respecting the congressional committee is to be viewed as of the time of its passage and is to be construed to prevent a political party in a county like Jackson from entrusting its affairs in the congressional district, as such, to any other than the county committee, acting as a congressional committee.

The construction given the statute in what .has been said seems more in accord with the general idea of representative government, as extended to party affairs, and prevents the casting of a cloud upon several other nominations for the Constitutional Convention, which it seems to be admitted by the pleadings have been made on a theory contrary to that of relator. It is not to be understood that it is held that the Legislature could not have passed a statute of the meaning attributed to this one by relator had that body been so disposed. The conclusion simply is that of the two constructions of this statute which the language may be said to permit (and no more can be claimed for the construction of relator) that one ought to be and is chosen which is indicated as correct by the long practice nnder it of all parties and party officials charged with its execution and which but accords with the general scheme of representative party government which the act of which'the statute in question is a part was clearly designed to put in force. It is, therefore, held that the county committee constituted the senatorial committee or committees, and that Mr. Beardsley was without authority to act as such committee or committees.

III. Even had Mr. Beardsley constituted, alone, the senatorial committee or committees of Jackson County, as relator contends, there is another obstacle to the Certificate of Nomination. issuance of the peremptory writ. Relator points out that the Amendment of 1920 (Sec. 3, Art. XV, Laws 1921, p. 712) which authorized the calling of the approaching Constitutional Convention provides that “in order to secure representation from different political parties in each senatorial district, each political party as then authorized by law to make nominations for the office of State Senator in each senatorial district shall nominate, only one candidate for delegate from such senatorial district, and such candidate shall be nominated in such manner as may be prescribed by the senatorial committee of the respective parties and a certificate of nomination shall be filed in the office of the Secretary of State at least,” etc.

By virtue of Section 4823,- Revised Statutes 1919, all nominations for elective office must be made by primary election, except that this provision does not apply to special elections to fill vacancies, nor to county superintendents of schools, nor to city officers not elected at a general state election, nor to town, village or school district officers, Neither is it applied to the nomination of candidates for presidential elector. The effect of these exceptions is that there still exist several classes of officers who lawfully may be and frequently are nominated by conventions of delegates. Under Section 4802 a certificate of nomination is defined, and one requirement is that it shall be executed with the formalities prescribed for the execution of an instrument affecting real estate. Section 4803 provides that certificates of nominations shall contain the name, residence and occupation of the nominee, the office for which he was nominated, and the name and residence of each signer. The certificate of nomination did not comply with either section. "While these sections relate to nominations by primary elections they are the sections which, prior to 1919, also contained provisions relating to nominations* by conventions. They are the only sections which define certificates of nominations in a way which could reasonably be applicable to convention nominations unless Section 4811 is applicable by force of its terms. It provides that certificates of nomination of candidates selected otherwise than by a primary shall be signed by electors resident within the district ... to a number equal to one per cent of the vote cast in the last preceding election in such district. The certificates tendered by relator do not comply with this section. "Whether or not these sections are intended to apply to convention nominations, they are the only provisions defining certificates of nomination which have been called to the attention of the court in this case. Even if the' Chairman of the County Committee of Jackson County could be held to be the senatorial committee or committees for that county, he must still proceed according to the applicable law. Pie chose the delegate convention method of nominating candidates. This, as shown, is still a lawful method of nomination for many offices in this . State. He thus exercised his power, assuming he had it, to prescribe the manner of nominating candidates of his party for delegates to the Constitutional Convention from the senatorial districts in Jackson County, by selecting a method known to our statute law. ' "While, if he constituted the committee, he was authorized to pre scribe tbe maimer of nominating sncb candidates, be was not empowered to prescribe tbe character of tbe certificate of nomination. On tbe contrary, tbe amendments adds to the clause empowering tbe senatorial committee to prescribe tbe manner of nomination tbe clanse, “and a certificate of nomination shall be filed in tbe office of tbe Secretary of State at least thirty days,” etc. Since tbe amendment requires a certificate of nomination and does not define it or authorize any one else to prescribe its form, tbe existing-statutes are to be looked to for tbe purpose of discovering what a certificate of nomination is. It is' defined by tbe statutes already pointed out, and in no case is a definition found which includes tbe certificate tendered by relator. For this reason also relator’s case fails. We do not bold that this would have affected relator’s nomination if respondent bad filed bis certificate and no objection bad been made thereto in tbe manner provided by Section 4817, Revised Statutes 1919. What is held is that since relator’s certificate does not fall within any definition of “certificate of nomination” under our election laws, be is in no position to compel respondent to accept and file it.

IY. Another question is whether a nomination by a convention of delegates selected at ward and precinct primaries of which primaries no official notice bad been given and with respect to the calling of which primaries Notice. no notice, official or other, was given of the authority by which they were called, can be considered or treated as. a party action, no matter what authority Mr. Beardsley bad. It is rather difficult to place the stamp of approval upon a course of action, inadvertently taken no doubt, which has in it so much of - opportunity for unfair advantage. There is nothing in tbe record to show anything of tbe kind was intended or done in this case. Nevertheless, tbe method employed will open tbe way to tbe taking of fractional advantage and tbe suppression of tbe full expression of tbe popu lar will. The record shows no such infent in this case, but questions of this kind are not settled because in a partióular instance the high character of the pei~sons involved prevents the imisdoing which approval of the course would permit and sanction ~n other circumstances.

V. There are other matters urged as sufficient to defeat relator's claims. These need not be considered Other Questions. in view of the conclusion already reached. Neither is ther~ any question involved which concerns the validity of the nomination of the candidate whom relator seeks to supersede. That can-diclate is not a party to this proceeding and could uot well be. Neither could any question concerning his nomination be raised in this case, which is merely one to compel ~espondent to file relator's certificate of nomina~ tiQn.

The alternative writ is quashed.

Walker, J., con-ours; David B. Blair, J., concurs in paragraphs 1, 2, 3 and 5 and the result; Graves, J., concurs in a separate opinion in which Higbee and Elder, JJ., concur; Wood-so'n', J., absent.