262 Mo. 220 | Mo. | 1914
Lead Opinion
The three cases entitled as above are original proceedings in mandamus. They have a common purpose, were heard as one and decided as one
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,
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
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.
Concurrence Opinion
(concurring). — I concur in the views expressed in the majority opinion by our learned Chief Justice, but there is another issue tendered by respondent’s return which should not be passed over in silence.
In said return it was asserted that relator Werremeyer was not entitled to have his name printed upon the ballots of the Democratic party because he had not paid the filing fee to the Democratic Central Committee, as iequired by section 5870*, Revised Statutes 1909. In response to this defense it was urged by our learned Attorney-General that the failure of the relator to pay the filing fee is no defense in this case, because the law requiring such fee to be paid is in violation of section 9, article 2, of our Constitution, which, among other things, • ordains that “all elections shall be free and open.” In this contention the Attorney-General is correct.
The “free and open” clause of our Constitution is intended to have some application to both candidates and voters. With such restrictions as will demonstrate that a reasonable number of persons desire to vote for a candidate he should be allowed to aspire to public office and submit his claims to the voters.
Sections 5860 and 5870 of our primary election law require candidates for public office to pay. sums of money into the treasury of the political party on whose ticket they wish to be nominated before their names can appear upon the ballots of that party. To my mind such laws are against sound public policy. The State is friendly to all political parties, but upon no theory of honesty or fairness can it have a desire to
In a recent case of this character arising under the Constitution of .Illinois (which is in almost the precise language of our own organic law so far as it pertains to elections), it was held by the highest appellate court of that State that a primary election law was void because it required candidates for office to pay sums of money into the public treasury, thus putting a cash price on the right of a citizen to aspire to office. [People ex rel. v. Board of Election Comrs., 221 Ill. l. c. 21-23.]
If our own primary law were as good as the one condemned by the highest court of Illinois I should hesitate to enter my protest against its enforcement, for it is well known that if the money required by our law to be paid to political committées by candidates were paid into the public treasuries of the several counties and cities of our State the cost of holding our biennial primary elections would he lifted from the shoulders of the taxpayers and placed upo.n the candidates, and thus the public treasuries would gain many thousands of dollars.
Just think of the great State of Missouri requiring the payment of sums of money (vast in the aggregate) to the treasurers of political parties to he used in promoting the election of persons who happen to be nominated, and, perchance, to be used in corrupting the electorate into voting for candidates who may or may not be worthy of the offices to which they aspire. Such a law is enough to make every honest man in our State hide his face with shame.
The primary election law we now have is obviously intended to help the party which is temporarily in the ascendency. It no doubt helps the Republican party in St. Louis county, for by the election returns we see that the Republican candidates usually win in that particular county; consequently, many persons will seek
Entertaining these views, I hold that those provisions of our primary election law upon which respondent relies are invalid, and that our absolute writ of mandamus was properly issued.
Dissenting Opinion
(dissenting). — I dissent from the order and judgment in this case awarding the peremptory writ of mandamus. Under the opinion of the majority of this court in State ex rel. Schmoll v. Drabelle et al., 261 Mo. 515, the writ should go, but I do not agree to that opinion. By that opinion the Act of 1913 prohibiting fusion of political parties was declared unconstitutional. In that my brothers were wrong. By that opinion they emasculated from the Constitution one whole section thereof. Section 37 of article 4 of the Constitution clearly makes the Legislature the forum in which to determine the question as to whether or not all legal and constitutional steps have been taken in the passage of a bill. By this section the determination of this question is taken away from the courts. Grant it that section 31 of the same article requires that a ma
Under this view of the law the anti-fusion statute is a valid and binding statute, and for that reason this writ of mandamus should be denied. Vide dissenting opinion in State ex rel. Schmoll v. Drabelle et al., supra.