Opinion
December 16, 1932.
1. ELECTION CONTESTS: Ward Committeemen. The contest of the election of ward committeemen of political parties is governed by the general statute relating to election contests.
2. ELECTION CONTESTS: Ward Committeemen. A ward committeeman of a political party is a county officer within the purview of Section 10339, Revised Statutes 1929; at a general nominating primary he is not merely nominated but elected.
PROVISIONAL RULE DISCHARGED.
Louis B. Sher and Henry C. Hinkel for relator.
(1) The object and purview of the writ of prohibition is to prevent an inferior court from assuming jurisdiction of a matter beyond its legal cognizance, and second, to keep such a court within the boundaries of its lawful jurisdiction and power. State ex rel. Butler v. Foster, 86 S.W. 246; State ex rel. Ellis v. Elkin, 30 S.W. 333; State ex rel. Jackson v. Bradley, 91 S.W. 483; State ex rel. Fenn v. McQuillin, 165 S.W. 713; State ex rel. McNamee v. Stobie, 92 S.W. 199; State ex rel. Terminal Co. v. Tracy, 140 S.W. 888. It has been further held that jurisdiction of the subject-matter has been defined by our courts as the very right to hear and determine and decide whether rightfully or wrongfully that court dominates jurisdiction. In the case of State ex rel. St. Louis K. L. Railroad Co. v. Withrow, 92 S.W. 197, court held that jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; that jurisdiction may be defined to be the right to adjudicate concerning subject-matter in the given case. To constitute this there are three essentials: (a) The court must have cognizance of the class of action to which the one adjudged belongs. (b) The proper parties must be present. (c) The point decided must be, in substance and effect within the issue. (2) The writ of prohibition will only be granted to prohibit the acts and proceedings under an alleged unconstitutional statute or ordinance when there is no adequate remedy by appeal, and the courts further hold that, in testing the adequacy of the remedy by appeal, the one question involved is the multiplicity of suits. State ex rel. v. Eby, 170 Mo. 491, 71 S.W. 52; State ex rel. Hainsworth v. Shannon, 108 S.W. 1097. (3) Where the lack of jurisdiction appears upon the face of the petition there is no necessity for the relator in the inferior court to make an objection that the said court does not have jurisdiction, or is usurping its jurisdiction. State ex rel. Anheuser-Busch Brewing Assn. v. Eby, 71 S.W. 59, 170 Mo. 497; State ex rel. Lemp Brewery Co. v. Eby, 71 S.W. 1133. (4) The Legislature can enact valid laws providing for the contest of primary nominations. State ex rel. McDonald v. Lollis, 33 S.W.2d 98; State ex rel. Dorsey v. Sprague, 33 S.W.2d 103. The Legislature in 1931 enacted a law pertaining to contests in primary elections. Session Acts 1931, p. 205. (5) An election contest is a purely statutory proceeding and was unknown at common law, and it has been held by our courts that it is not a case or civil action within the meaning of the Constitution and statutes of our State. State ex rel. Keshler v. Slover, 134 Mo. 13; State ex rel. Funkhauser v. Spencer, 166 Mo. 278; State ex rel. Rainwater v. Ross, 245 Mo. 45, 149 S.W. 452. (6) When a lawmaking power enacts a new statute covering the whole subject and manifesting an intention to substitute the subsequent for the prior laws, then such prior laws are repealed. Maret v. Hough, 185 S.W. 544; Sturgeon v. Bishop, 189 S.W. 593; State v. Stell, 14 S.W.2d 515. Green, Henry, Remmers Dearmont for respondent.
That the naming of a committeeman is an election, and not a nominating primary, is well settled in this State, and that a contest brought to contest such an election shall be brought under the laws applicable to election contests, being Sections 10354 and 10355, R.S. 1929, is also well settled. State ex rel. Copeland v. Wurdeman, 295 Mo. 458; State ex rel. Dawson v. Falkenhainer, 15 S.W.2d 342; both cases cited in the return of respondent M. Hartmann, Judge, heretofore filed. State ex rel. Ponath v. Hamilton, 240 S.W. 445, where the court, speaking through Walker, Judge, said at page 446: "The general purpose of a primary election is to nominate candidates for office. Provision is made in the statute regulating these primaries (Sec. 4848, R.S. 1919), however, for the election, at the time they are held, of committeemen to represent political parties."
This is an original proceeding in prohibition wherein relator seeks to prevent further action in an election contest now pending in the Circuit Court of the City of St. Louis.
A provisional rule in prohibition has been issued, respondents have filed returns, and relator has filed a motion for judgment on the pleadings.
At the general primary election on August 2, 1932, relator and Clarence Hammond were opposing candidates for the office of committeeman of the Democratic Party for the Twenty-third Ward of the city of St. Louis. On August 11, the board of election commissioners of said city declared relator elected to said office. On August 13, Hammond filed in the circuit court of said city a notice of his intention to contest relator's election to said office, specifying therein the grounds on which he intends to rely in said contest, and relator was duly served with a copy of said notice. On August 17, said contest was duly assigned for hearing to the division of said circuit court then presided over by respondent judge, and on the same day Hammond filed an application for the opening of the ballot boxes and a recount of the ballots cast for said office. On August 24, respondent judge sustained said application, and made an order directing the board of election commissioners to open, count, compare with the list of voters and examine the ballots cast for said office and certify to him the result of said count, comparison and examination. On August 25, the chairman of the board of election commissioners notified relator that a recount of said ballots would begin on August 31, at nine o'clock A. M., in accordance with said court order. On August 27, relator filed in this court his petition for a writ of prohibition.
The question presented for our determination is whether contests of the election of ward committeemen of political parties are governed by the general statute relating to election contests (Art. 8, Chap. 61, R.S. 1929) or by the special statute relating to primary election contests. [Laws 1931, pp. 205-208.]
The general statute relating to election contests provides that "the several circuit courts shall have jurisdiction in cases of contested elections for county and municipal offices" when notice of any such contest is given to "the opposite party within twenty days after the votes shall have been officially counted," specifying therein "the grounds upon which the contestant intends to rely;" that the court before which any such contest is pending may order a recount of the ballots cast at the contested election by the clerk of the county court of the county (or by the board of election commissioners of the city) in which the contested election was held and a certification of the result of such recount to the court making such order; that the clerk of the county court (or the board of election commissioners) shall fix the date of such recount and notify the contestant and contestee or their attorneys of the date so fixed at least five days prior thereto; and that appeals may be taken and writs of error shall lie in such cases as in ordinary civil actions. [Italics ours. See Secs. 10339, 10354, 10355 and 10382, R.S. 1929.]
If the contest pending below is within the purview of this statute, relator concedes the authority of the circuit court to hear and determine said contest and to order a recount of the ballots involved therein by the board of election commissioners. But, relator contends that the contest pending below is governed by the special statute relating to primary election contests; that said contest was not instituted in accordance with the provisions of said statute; that said statute does not authorize a recount of ballots by the board of election commissioners; and that, therefore, the circuit court is without jurisdiction to hear and determine said contest or to order a recount of the ballots involved therein by the board of election commissioners.
This special statute is entitled "An Act relating to the contest of primary nomination elections and providing for a recount of ballots." It provides that "any candidate whose name appeared upon the primary ballot of any political party at any primary election held in any of the election precincts or voting districts in this state who desires to challenge the correctness of the count and returns for the office for which he was a candidate" may, within five days after the official count of the votes shall have been certified, "file his verified petition in the office of the clerk of the circuit court of the county . . . or city where irregularities are alleged to have occurred," charging the commission of fraud, misconduct or irregularity in the count of the ballots or in the returns thereof, first serving a written notice on the contestee of his intention to do so; that "circuit courts are hereby vested with jurisdiction and authority to hear and determine contests of primary elections;" that the judge of the court shall order a recount of the ballots involved in any such contest if good cause therefor be shown; that, when such recount has been ordered, the court shall cause to be brought before it all ballots, poll books, registration books and statements of the precincts in question and determine the legality of the ballots; that the contestant and contestee, respectively, may submit a list of the names of four disinterested electors of the county or city, and from each of such lists the court shall appoint two electors for the purpose of opening and counting the ballots; that the four electors so appointed shall open, canvass and count the ballots in the presence of the court and report in writing to the court the result of their canvass and count; and that there shall be no appeal from the judgment of the court. [Italics ours. See title of said statute and Secs. 1, 2, 3, 4 and 5 thereof, Laws 1931, pp. 205-208.]
Relator's contention is based solely on the general provision of this special statute that "any candidate whose name appeared upon the primary ballot of any political party at any primary election" may contest the correctness of the official count of the ballots cast for the office for which he was a candidate, in connection with the statute (Sec. 10278a, Laws 1931, p. 209) which provides for the election of ward committeemen of political parties in the city of St. Louis at primary elections and authorizes the use of primary election ballots for that purpose. Notwithstanding the language used in said general provision of the statute relating to primary election contests, we think the title of said statute and its provisions as a whole clearly show that it was intended to apply only to contests by candidates for nominations for office, and not to contests by candidates for election to office. Moreover, we have held expressly that contests of the election of ward or township committeemen of political parties are regulated by the general statute relating to election contests. In State ex rel. Ponath v. Hamilton, 240 S.W. l.c. 446-448, we said: "The general purpose of a primary election is to nominate candidates for office. Provision is made in the statute regulating these primaries (Sec. 4848, R.S. 1929), however, for the election, at the time they are held, of committeemen to represent the respective political parties. . . . Cases illustrative of the effect of a nomination by a primary election are not necessary to the determination of the official status of a party committeeman. He is not nominated but elected at the primary and his election at that time and in that manner is as effectual as if he had been chosen at a general election. . . . There can therefore be no reasonable ground for controversy that the city, so far as its authority to elect party committeemen is concerned, is identical with that of a county; and that the duties of those elected are in no wise different from those of county committeemen. A county committeeman, under the statute, would be authorized to institute a contest proceeding to determine his right of the office. . . . We conclude, therefore, not from inference or implication, but from an interpretation based upon the nature and purpose of the statute creating party committeemen and the uniform character of duties devolving on them as such, regardless of whether they are elected in the city of St. Louis by wards or in a county by townships, that they are, so far as affects their official tenure and the right to maintain and establish same, county officers; and hence within the purview of the section (4896, R.S. 1919) regulating contested elections." [Italics ours. See Sec. 10278a, Laws 1931, p. 209, and Sec. 10339, R.S. 1929.] This holding in the Ponath case is cited in support of holdings to the same effect in State ex rel. Copeland v. Wurdeman, 295 Mo. 458, 245 S.W. 551, and State ex rel. Dawson v. Falkenhainer, 321 Mo. 1042, 15 S.W.2d 342.
It follows that the provisional rule in prohibition issued herein should be discharged. It is so ordered. All concur.