State ex rel. Frazer v. Seibel

LAMM, C. J.' The three cases entitled as above are original proceedings in mandamus. They have a common purpose, were heard as one and decided as one — 222 — by a per curiam handed down on October 31, 1914. If fresh justice is the sweetest as Lord Bacon says it is, that per curiam filled the bill. It, inter alia, ordered that absolute writs issue and that an opinion follow. The opinion so ordered to follow, follows, thus: The object of the alternative writs was to cite Seibel, clerk of the county court of St. Louis county (who was either recalcitrant, or dubitante, or both) to show cause, if any he had, why the names of relators Frazier and Morgan should not be printed on the official ballot for use in the then approaching State election as candidates of the Progressive party for the offices of State representative for the second district and judge of the county court for the first district in St. Louis county respectively, in lieu of one Mars and one Gardner who had resigned their primary nominations respectively for those offices on the Progressive party ticket; and have the same clerk show similar cause, if any he had, why the name of relator Tegethoff should not be printed upon the official ballot as the candidate of the Progressive party for the office of State representative for the first representative district of said county in lieu of one Morton, who had resigned his primary nomination for that office on the Progressive party ticket; and have the same clerk show similar cause, if any he had, why the name of A. II.' Werremeyer should not be printed upon the same official ballot as the candidate for the office of collector of revenue upon the Democratic ticket, in lieu of one Grillick who had resigned his primary nomination for that office on the Democratic party ticket. To those alternative writs, Seibel made return in the Werremeyer case which, by consent, stood as a return to the others, mutatis mutandis. In substance, so far as material here, the return was to the effect that Werremeyer was nominated at the prior August primary as the candidate of the Progressive party for the office of collector of revenue, — 223 — and Gilliek was similarly nominated as the candidate for the same office on the Democratic ticket. That Werremeyer had not withdrawn as a candidate upon the Progressive ticket, bnt holds fast to that nomination, while at the same time endeavoring to get the nomination of another party and to have his name printed on the ticket of that other party by and through the resignation of Gilliek and a resolution of the Democratic central committee of St. Louis county. That he, Werremeyer, was not known to respondent nor to said Democratic central committee, nor to the voters of said St. Louis county to be a Democrat in belief, nor as affiliated with the Democratic party, nor was he known to be of the same political belief or party as said Gilliek; but, contra, was known to respondent, to said committee and to said voters as a member of the Progressive party and as a believer in its principles. That the said action of the Democratic central committee (set forth in full in resolutions in the record) was contrary to the provisions of Eevised Statutes 1909, section 5848. It seems that relators in the other causes were the regular nominees of the 'Democratic party, under circumstances outlined above, for the offices indicated hereinbefore, and sought nominations from the Progressive party and to be put on the Progressive party ticket by virtue of the resignations of the named candidates of the Progressive party for the offices in question, and to run on both tickets. Delators filed a motion for judgment, and, on precedent, it is our view that the issue, raised by such motion for judgment on the pleadings, is one of law alone. On such record, no apparent useful purpose can be subserved by extended discussion; since the principles controlling the case have been lately announced by this court, thus: In Nance v. Kearbey, 251 Mo. 374, an election contest, decided in 1913, the validity of Kearbey’s election for sheriff was questioned in — 224 — part oil the ground that his name improperly appeared on two tickets. We resolved the case against the contention of contestant, putting our ruling in main part on the doctrine of State ex rel. v. Kortjohn et al., 246 Mo. 34, decided in 1912. One phase of the Nance-Kearbey case rode off on the assumption there was no existing statutory inhibition against two political parties doubling up their forces at an election and'running the same candidates upon their two tickets if the coalition was regularly brought about. [Williams v. Dalrymple, 132 Mo. 62.] In 1913 the Legislature attempted a change in public policy in that particular. [Liaws 1913, p. 327.] The new act prescribed a blanket ballot, containing, also an antifusion provision, whereby a candidate was denied the right to coquette with and embrace two nominations at the same time. [Laws 1913, sec. 5891, p. 327.] Now, in State ex rel. Schmoll v. Drabelle et al., Board of Election Commissioners of the City of St. Louis, 261 Mo. 515, it was held that this Act of 1913 was not enacted in accordance with the safeguards and requirements of the Constitution. By that decision that act, apparently the only recognized barrier in the way of fusion on candidates, was struck to the ground and became the same as if it never had been. Hence, as to the law of the instant cases, the situation is precisely as it was when the Nance-Kearbey case and the Williams-Dalrymple case were ruled, namely, political parties were allowed to fuse by nominating the same candidates and, to that end, filling vacancies on their tickets occurring after primary nominations. It becomes evident, then, that on the authority of the cases cited, absolute writs were providently awarded unless there is something of substance in respondent’s contention that section 5848, Revised Statutes 1909, stands as a lion in the way. Attend to that section. It reads: “The central committee of a political party shall consist of the largest body elected for the purpose of representing and acting for the party in the interim — 225 — between conventions of the party. That for the purpose of making nominations to fill vacancies on a ticket previously nominated a majority of all' the members-elect of a central committee shall be necessary to take action. That a central committee shall not have the power to delegate its authority to make nominations to any persons or number of persons, and that any act consequent upon any such delegation' of authority shall be held to be null and void. That no central committee shall have the power to substitute, to fill any vacancy, the name of any person who is not known to be of the same political belief and party as the person for whom he is substituted.” We are of opinion that respondent county clerk, neither by name, office nor intendment is within the purview of that section, hence, has no call or right to invoke its provisions in showing cause in his return. That section laid no duty on him. It laid a duty on the central committee of the party. Whether a violation of that duty is to be.corrected by electors at the polls when chance offers or can be corrected by the courts in an appropriate and timely action, we need not decide. It is enough for us to hold that it will be time enough for county clerks to constitute themselves judges of- the delicate question of the political beliefs of candidates when the lawmakers say so, not before. The next section of the statute (Sec. 5849) prescribes a method of testing out objections to certificates of nomination — a method held preclusive in the Nance-Kearbey case. It is not pretended in these cases that any steps were taken under section 5849 to obtain any relief provided for therein. It is on such premises, I am instructed by a majority of the Brethren to say that our absolute writs were awarded at the hearing by a per curiam, were served instamter and became effective. — 226 — All concur, except Woodson and Graves, JJ., who dissent in an opinion by Graves, J., in which Woodson, J., joins.