123 S.W.2d 20 | Mo. | 1938
This is an original proceeding in certiorari to review the record of the Circuit Court of Jackson County in a proceeding lately pending in that court entitled, "Alphie Nellie Matheson, Appellant, v. Board of Election Commissioners for Kansas City, Missouri, and J.E. Woodmansee, Bruce Forrester, Edgar Shook and Lewis Ellis, Members of and composing the Board of Election Commissioners for Kansas City, Missouri, Respondents." The appellant therein, Alphie Nellie Matheson, had appealed from the action of respondents (relators here), as the Board of Election Commissioners for Kansas City, denying an application made by her on March 8, 1938, to register as a qualified voter of the 8th precinct of the 13th ward of that city for the city election to be held March 29, 1938. The Board had denied her application for the reason that registration for that election had closed on the preceding Saturday, March 5. However, the Board offered to register her for succeeding elections, but not to be effective until after said city election. The court having indicated it would sustain the position of the appellant, withheld action until the Board could apply for prohibition. Application therefor was made to this court, and denied, following which the circuit court ordered that the Board "permit and effect (registration of applicant) in time for the city election to be held on March 29, 1938." It is the record thus made which relators seek to have reviewed and quashed by this proceeding in certiorari.
The ultimate question for decision is one of statutory construction, i.e., the interpretation and effect to be given certain provisions of a statute passed by the 59th General Assembly enacting into law a scheme for the permanent registration of voters in cities of 300,000 to 700,000 inhabitants — an act not hitherto construed by this or any other appellate court. [Laws, 1937, pp. 294-341.] It is the contention of relators that the close-of-registration provisions of that statute are mandatory in character; that they operate as a limitation or restriction upon the power and authority of the board, and in consequence thereof, upon the circuit court on appeal, so as to render it without jurisdiction to grant the relief ordered.
The several sections relating to close-of-registration will be briefly noticed. Section 22 says flatly, "Registration for any election shall be closed at the close of office hours on the fourth Saturday prior to the day of the election." Section 24, relating to the form of affidavits of registration, also provides, "The wording of the affidavits of *706 registration, and the applications for registration hereinafter provided for, for registrations made between the close of aregistration for an election and the day of said election, shall be changed by striking through the words, `the day of the next succeeding election' and inserting the date of the election for which registration applies, and such registration affidavitsshall not be filed in the precinct registers until following thedate of the next succeeding election." (Italics ours.) Section 26 says, "Only such persons as shall be duly qualified to vote within the city at the next succeeding election and who shall personally apply for registration shall be registered. Anyperson who may be qualified to vote at an election following thenext succeeding election may be registered after the close ofregistration for the said next succeeding election, but theregistration shall not be effective until after the nextsucceeding election." (Italics ours.) Section 16 makes it the duty of the board "to give ten days' notice in two daily newspapers of such city, of opposite politics if possible, of the time and place of election in each precinct of the city, of thedate of the close of registration. . . ." (Italics ours.) Section 18 provides that a citizen "shall not vote elsewhere than in the precinct where his name is registered, and whereof he is registered as a resident," and Section 46 expressly declares, "The vote of no one shall be received by said judges whose name does not appear upon said register as a qualified voter."
[1] On the other hand, it is contended that under Article VI, Section 23, Constitution of Missouri, the circuit court is vested with superintending control over inferior tribunals, such as the Board of Election Commissioners, and that Section 35 of the act in question expressly confers jurisdiction on the circuit court to hear and determine the appeal of "any person who has been denied registration." And so it is argued that "having jurisdiction, respondent had power to decide the issue correctly or incorrectly," and that relators complaint respecting the action of the circuit court goes to its correctness and not to the power and jurisdiction of the court to make it.
Preliminary to a discussion of the merits, it is necessary to determine the contention, forecast by the last paragraph, that certiorari does not lie. It is insisted certiorari reviews only jurisdictional questions, not the merits, and that respondent had jurisdiction. Furthermore, that even if certiorari reviews the merits where there is no remedy by appeal or writ of error, it does not lie here because a remedy by appeal and writ of error exists. Treating the latter proposition first, it may be said that it is based upon a construction of Section 35, supra, relating to appeals from the Board of Election Commissioners to the circuit court. That section, insofar as here *707 pertinent, provides as follows: "Any person who has been denied registration . . . may appeal to the Circuit Clerk of the County. The Circuit Clerk shall make a record of the appeal of such person, which shall set forth the grounds of the appeal, and the Circuit Clerk shall request the Board of Election Commissioners to file with him the application for registration, . . . together with the reasons for denial of registration. . . . It shall be the duty of the Board to transmit such information forthwith. All records bearing upon such appeal shall be presented to one of the judges of the Circuit Court and his ruling and findings shall befinal." We do not construe the italicized language as meaning that the "ruling and findings" shall be in the nature of a final judgment, and, therefore, reviewable, by appeal or error, as in ordinary civil cases. Rather, we think, from the language itself, that the contrary is true: It shall be final — conclusive — in the sense that it is non-appealable, and not reviewable by writ of error.
[2] Adverting to the other contention, it is said that under the present rule, as laid down in State ex rel. Kennedy v. Remmers,
Furthermore, if, as has been held, jurisdiction includes not only the power to hear and determine, "but power to render the particular judgment in the particular case (Charles v. White, 214 Mo. *709
187, 112 S.W. 545; State ex rel. v. Bright,
[5] This brings us to a consideration of whether the close-of-registration provisions of the statute are mandatory. In State ex rel. v. Brown, No. 30,665,