Summary
noting that the Court has “unlimited discretion to complete its deliberation of the case and prepare an opinion and enter a final judgment on the merits if it sees fit to do so”
Summary of this case from Mo. Mun. League v. StateOpinion
June 10, 1941.
1. PROHIBITION: Elections: Judicial Notice. The court will take judicial notice of the journals of the House and the Senate and the common knowledge throughout the State that the Governor has assumed office and that an election contest instituted by his opponent has been dismissed at the request of said opponent, and the contest committee discharged by the Joint Assembly, in determining that the case has become moot.
2. PROHIBITION: Moot Case. When a case becomes moot after it has been argued and submitted, the court may in its discretion enter a final judgment on the merits. No useful purpose would be served in this case by a final decision on the merits. Where a situation so changes that no relief may be granted because it has already been obtained, the court will not go through the empty formality of determining whether or not the relief asked for might have been granted.
PRELIMINARY RULE DISCHARGED.
Frank E. Atwood, Charles E. Rendlen. James A. Finch and Richmond C. Coburn for relator.
(1) All material averments of fact in relator's petition which are not specifically or specially denied in respondents' return are taken as confessed. Bliss v. Grand River Drain. Dist., 330 Mo. 360, 49 S.W.2d 121; State ex rel. Potter v. Riley, 219 Mo. 667, 118 S.W. 647; State ex rel. Wheeler v. Adams, 161 Mo. 349, 61 S.W. 894. The allegations in the return of the respondents L.N. Searey et al., that relator did not have a majority of the legal votes or that the returns did not show the correct legal vote, and all similar allegations therein, do not specifically and directly deny the allegations in the petition and are equivocal and evasive, and an attempt to plead a different state of facts from that averred in the petition, and since they do not directly transverse the allegations in the petition, the facts alleged in the petition against which such allegations are made are to be taken as true. State ex rel. Wheeler v. Adams, 161 Mo. 349, 61 S.W. 894; State ex rel. v. Vail, 53 Mo. 97. Furthermore, the allegations with reference to the legal votes, found in the return of the respondents L.N. Searcy et al., constitute a conclusion of law and are of no effect as an averment of fact. State ex rel. Brown v. Stewart, 313 Mo. 1, 281 S.W. 768. Where a case is submitted on the petition and return thereto, the court will look to the facts well pleaded in the petition and return for the facts of the case. State ex rel. Buckley v. Thompson, 323 Mo. 248, 91 S.W.2d 714. In a proceeding in prohibition the court will be guided by what the respondent proposes to do, not by what he alleges in his return. Barnes v. Gottschalk, 3 Mo. App. 111. (2) The writ of prohibition issues to prevent action in excess of jurisdiction as well as action where there is no jurisdiction. State ex rel. Natl. Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W. 418. The writ of prohibition is not only the process in which a superior court prevents an inferior one from exercising jurisdiction with which it has not been invested by law, but is also available to prevent an executive officer from performing an act judicial in its nature. State ex rel. Bates v. Remmers, 325 Mo. 1135, 30 S.W. 609; State ex rel. United States Fid. Guar. Co. v. Harty, 276 Mo. 595, 208 S.W. 835; State ex rel. v. Johnston, 234 Mo. 338, 137 S.W. 595; State ex rel. Ellis v. Elkins, 130 Mo. 90, 30 S.W. 333. The nature of the act rather than the official character of the person proceeded against determines the propriety of the issuance of a writ in prohibition. (3) The procedure established for a gubernatorial election contest by the Constitution and statutes of Missouri contemplate the exercise of judicial power. Mo. Const., Art. V, Sec. 25; R.S. 1929, secs. 10360-10365. The determination of an election contest is the exercise of judicial power. State ex rel. McDonald v. Lollis, 326 Mo. 644, 33 S.W.2d 98; State ex rel. United States Fed. Guar. Co. v. Harty, 276 Mo. 583, 208 S.W. 835; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; State ex rel. Hartley v. Gideon, 225 Mo. App. 459, 40 S.W.2d 745; Barnes v. Gottschalk, 3 Mo. App. 111. The Constitution of Missouri delegates to the General Assembly a limited judicial power to hear gubernatorial election contests. Mo. Const., Art. V, Sec. 25; Cooley, Const. Limitations (8 Ed.), p. 270. (4) The office of Governor does not exist by virtue of the common law granted by the Constitution of the State. Baxter v. Brooks, 29 Ark. 173. The contest of an election did not exist at common law and the proceeding is purely statutory. State ex rel. Jackson County v. Waltner, 340 Mo. 137, 100 S.W.2d 272; Bradbury v. Whightman, 232 Mo. 392, 134 S.W. 5; State ex rel. Keshlear v. Slover, 134 Mo. 10, 31 S.W. 1054; Kehr v. Columbia, 136 Mo. App. 322, 116 S.W. 428; Baxter v. Brooks, 29 Ark. 173; State ex rel. Grissell v. Marlow, 15 Ohio St. 114. The statutory remedy for a contest of an election is exclusive and no other method of contest can be followed. Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629; State ex rel. Keshlear v. Slover, 134 Mo. 10, 31 S.W. 1054; State v. Gamma, 149 Mo. App. 694, 129 S.W. 734; State ex rel. Grissell v. Marlow, 15 Ohio St. 114; Mo. Const., Art. V, Sec. 25. No lawful contest is pending before the General Assembly for the reason that no one has been declared to be the duly elected Governor of Missouri. Mo. Const., Art. V, Sec. 3, Sec. 10169, R.S. 1929, 20 C.J., p. 57; State ex rel. Sale v. McElhinney, 199 Mo. 67, 97 S.W. 159; Barnes v. Gottschalk, 3 Mo. App. 111. No lawful contest is pending before the General Assembly for the reason that the contestant in an election contest must have been one of the candidates in the contested election. 20 C.J., p. 57; Tomcray v. Budge, 14 Idaho, 621, 95 P. 26; State ex rel. Circuit Court, 63 S.D. 313, 258 N.W. 278; Austin v. Dick, 100 Cal. 199, 34 P. 655; Mo. Const., Art. III, Sec. 25, Sec. 10362, R.S. 1929; Gantt v. Brown, 244 Mo. 271, 149 S.W. 644, Sec. 10340, R.S. 1929; State ex rel. Ewing v. Francis, 88 Mo. 557; Kehr v. Columbia, 136 Mo. App. 322, 166 S.W. 428. No lawful contest is pending before the General Assembly because the petition of James T. Blair, Jr., is so insufficient in its allegations that the General Assembly does not have jurisdiction of the subject matter of the contest of the election for Governor. Sec. 10361, R.S. 1929. No lawful contest is pending before the General Assembly for the reason that the Speaker of the House of Representatives proceeded to the transaction of other business before declaring the relator elected. Mo. Const., Art. V, Sec. 3, Sec. 10169, R.S. 1929; Amos v. Matthews, 99 Fla. 1, 126 So. 308; Weinberger v. Board of Instruction, 93 Fla. 470, 112 So. 253; Ferguson v. Wilcox, 28 S.W.2d 526; Burns v. School District, 295 S.W. 1091; In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295; State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710. (5) Joint Resolution No. 3 does not comply with the constitutional and statutory provisions providing for the contest of a gubernatorial election. Mo. Const., Art. V, Sec. 25, Secs. 10360-10365, R.S. 1929. The Legislature cannot conduct a general investigation except for the purpose of gathering facts relative to proposed legislation or to investigate the administration of an executive officer. 16 C.J., p. 307; State ex rel. Tolerton v. Gordon, 236 Mo. 142, 139 S.W. 403; Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377; Greenfield v. Russell, 292 Ill. 392, 172 N.E. 102, 9 A.L.R. 1334; Ex parte Hague, 104 N.J. Eq. 134, 147 A. 220, affirmed 9 N.J. Misc. 89, 150 A. 322. Joint Resolution No. 3 is null and void and of no effect because it was vetoed by the Governor. Mo. Const., Art. V, Secs. 12, 14; Gilbreth v. Willett, 148 Tenn. 92, 251 1055 S.W. 910; Doyle v. Hofstader, 257 N.Y. 244, 177 N.E. 489; In re Quaere of the procedure of the two Houses of the Legislature in contest of the election of executive offices, 31 Neb. 262, 47 N.W. 923. (6) Section 3 of Article VIII of the Constitution of the State of Missouri, in so far as it permits the opening of ballots in election contests, is not self-enforcing. State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319. The only statutory provisions authorizing the opening and recounting of ballots are Sections 10354-10359, inclusive, Revised Statutes 1929. Sections 10354-10359, inclusive, permit only the county clerk to reopen the ballot boxes and recount and recanvass the ballots, and this only in the presence of the contestor and the contestee, and their attorneys, and in the clerk's office. (7) The violation of the writ of prohibition is enforced by a citation of the respondents for contempt. 50 C.J. 713, sec. 148; Howard v. Pierce, 38 Mo. 296. Immunity of a member of the Legislature from arrest except for the reason of treason, a felony, or a breach of the peace, does not prevent the legislator from being cited and convicted for contempt of court. State v. Elder, 31 Neb. 169, 47 N.W. 710; In re Gent, 40 Chancery Div. 190; Henderson v. Dickson, 19 U.C.Q.B. 592. (8) Article III of the Constitution of Missouri separating the powers of the government into three departments — the executive, the legislative and the judicial — in practice does not create three entirely independent departments. Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977; State ex rel. Marion v. Dawson, 284 Mo. 490, 225 S.W. 97; Rhodes v. Bell, 230 Mo. 138, 130 S.W. 465; State ex rel. Davis v. Osborne, 14 Ariz. 185, 121 P. 884; McCauley v. Brooks, 16 Cal. 11. It is the power and the duty of the judiciary to declare null and void a statutory enactment which conflicts with the Constitution. Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60; State ex rel. Elsas v. Mo. Workmen's Comp. Comm., 318 Mo. 1004, 2 S.W.2d 796; State ex rel. Blades v. C.B. Q. Ry. Co., 251 Mo. 146, 158 S.W. 29; State v. McBride, 4 Mo. 303. The judiciary has the power and duty to require the officers of other departments of the government to act within the limits of the organic law. Cooley, Const. Limitations (8 Ed.), p. 105; Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60; State v. McBride, 4 Mo. 303; In re Investigation of Dauphin Committee Grand Jury, 2 A.2d 802; Rockne v. Olson, 191 Minn. 310, 25 N.W. 5. By declaring a legislative enactment unconstitutional, the judiciary does not set itself up as a department of the government superior in degree and dignity to that of the legislative department. Painter v. Mattfeldt, 119 Md. 466, 88 A. 413. The judiciary is the only department which is properly constituted and organized to require the other departments of the government to remain within the limitations of the organic law. Cooley on Limitations, p. 105; Marbury v. Madson, 1 Cranch. 137, 2 L.Ed. 60; Woods v. Ball, 166 S.W. 4; Nogues v. Douglass, 7 Cal. 65. The judiciary will prevent a legislative committee from an unlawful assumption of power. Brown v. Brancato, 321 Pa. 54, 184 A. 89; Gilbraith v. Willett, 251 S.W. 10, 28 A.L.R. 1147. This court has held that prohibitive process should be issued to prevent officers of the executive department from exceeding their powers and authority in the performance of their official acts. Baum v. St. Louis, 123 S.W.2d 48; Castilo v. State Highway Comm., 312 Mo. 244, 279 S.W. 673; Stockey v. Edwards, 295 Mo. 402, 244 S.W. 802; Carson v. Sullivan, 284 Mo. 353, 223 S.W. 571; State ex rel. United States Fid. Guar. Co. v. Harty, 276 Mo. 583, 208 S.W. 835. The question of whether a public official is acting or has acted within the limits of the Constitution is a judicial question to be decided by the courts. Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. The courts will not hesitate to exercise their judicial function to pass upon the constitutionality of the action of other public officials, even though in so doing the judgment of the court may indirectly affect a question usually considered as political in character. Ashton v. Ferguson, 261 S.W. 624; State ex rel. Davis v. Osborne, 14 Ariz. 185, 125 P. 883; Madden v. Board of Election Commissioners, 146 N.E. 280; State ex rel. Davis v. Hildebrandt, 114 N.E. 555; State ex rel. Olson v. Langer, 256 N.W. 377.
Roy McKittrick, Attorney General, J.E. Taylor, Vane Thurlo and Lawrence L. Bradley, Assistant Attorneys General, for respondents.
(1) Adoption of respondent's brief in State ex rel. Donnell v. Osburn. (2) The relator's position that no contest of election for the office of Governor is pending before the General Assembly is not supported by reason or by the authorities. (a) Cases cited by relator not authority for his position. Kehr v. Columbia, 136 Mo. App. 322; State ex rel. McDonald v. Lollis, 33 S.W.2d 98, 326 Mo. 650; State ex rel. Dorsey v. Sprague, 33 S.W.2d 102, 326 Mo. 660; State ex rel. Ballew v. Woodson, 61 S.W. 252, 161 Mo. 453. (b) Declaring a candidate for Governor to be elected is not a prerequisite to the jurisdiction of the General Assembly to hear and determine the contest. (e) The General Assembly has inherent power to provide the procedure for contesting an election for Governor. (d) The petition filed by James T. Blair, Jr., is sufficient to give the General Assembly jurisdiction. Ex parte State ex rel. Braggs, 197 So. 36; Democratic Executive Committee v. Dougherty, 120 S.W. 345. (e) The power of the General Assembly to hear and determine an election contest does not depend upon the Speaker or the General Assembly declaring relator elected. Keller v. State Social Security Comm., 137 S.W.2d 990. (3) The General Assembly had power to adopt "Joint Resolution No. 3" under and by virtue of the Constitution. (a) General Assembly in passing Resolution No. 3 was acting under power vested in it by Section 25 of Article V. Vrooman v. St. Louis, 337 Mo. 933, 88 S.W.2d 195; State v. Shelby, 333 Mo. 1036, 64 S.W.2d 271; State ex rel. v. Koeln, 332 Mo. 1229, 61 S.W.2d 755; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1018; Art. V, Secs. 3, 25, Mo. Const. (b) The Governor had no power to veto Resolution No. 3 because it was not a "Joint Resolution." Secs. 3, 12, 14, 25, Art. V, Mo. Const.; Strong v. People, 74 Colo. 283, 220 P. 1002; State ex rel. Crowe v. Hostetter, 137 Mo. 646; Oklahoma News Co. v. Ryan, 101 Okla. 151, 224 P. 972; State ex rel. Wilcox v. Draper, 50 Mo. 27; Secs. 26, 27, 29, 31, 37, 38, Art. IV, Mo. Const.; Springfield ex rel. McEvilly v. Knott, 49 Mo. App. 612; Kelley v. Secretary of State, 112 N.W. 978. (c) The resolution does-not violate the constitutional provisions with reference to opening ballot boxes. State v. Shelby, 333 Mo. 1036, 64 S.W.2d 271; State ex rel. v. Koeln, 332 Mo. 1229, 61 S.W.2d 755; State ex rel. Miller v. O'Malley, 342 Mo. 652, 117 S.W.2d 319. (4) This court has no authority to invade the jurisdiction of the General Assembly by its writ of prohibition. (a) The court has no inherent power to determine contests of election. Sec. 8, Art. VIII, Mo. Const. (b) The General Assembly has the same inherent and fundamental powers in election contests for Governor as it does in passing upon the election returns and qualifications of its own members. Secs. 10346, 10361, R.S. 1929. (c) Relator insists that if the court issues a permanent writ of prohibition it can enforce obedience thereto under its power to cite for contempt. Sec. 12, Art. XIV, Mo. Const.; Coffin v. Coffin, 3 Am. Dec. 189, 4 Mass. 1; State ex rel. Robb v. Stone, 120 Mo. 428. (d) There is a line of demarcation between legislative, executive and judicial functions. (e) Prohibition will not lie to restrain respondents from exercising legislative powers. Bash v. Truman, 75 S.W.2d 840, 335 Mo. 1077; State ex rel. Guaranty Co. v. Harty, 208 S.W. 835, 276 Mo. 583; Greir v. Taylor, 4 McCord 206; Robertson v. State, 10 N.E. 582, 109 Ind. 79; House Journal, 1857, p. 68.
This is an original proceeding in prohibition to prevent a committee of the Joint Assembly of the House and Senate from taking any action with respect to an "investigation" of the election of the Governor. The action sought to be prohibited includes the opening of the ballot boxes and recount of the ballots.
The relator is the Republican candidate who, on the basis of the complete and valid election returns, was elected Governor at the General Election on November 5, 1940, by an admitted plurality of 3613 votes. The duty to open and publish the returns for Governor and to declare elected the person having the highest number of votes as shown by the returns, is imposed on the Speaker of the House by Art. V, Sec. 3 of the Constitution, but the Speaker at first declined to publish the returns for the office of Governor and refused to declare the relator elected. In doing so the Speaker was acting on the order of the Joint Assembly as expressed in a joint resolution.
The Joint Assembly by the same resolution entertained a petition of one James T. Blair, Jr., filed as a private citizen and voter, but not as a party to a contest, asking for a legislative "investigation" of the election of Governor and a recount of the ballots. It appointed the respondents as members of a committee with authority to open the ballot boxes, determine the legality of the ballots and recount them. This Committee was about to proceed with the opening of the ballot boxes when the relator applied to this court for a writ of prohibition. We issued our preliminary rule.
By Art. V, Sec. 25 of the Constitution the Assembly is empowered to decide a contest of the election of Governor in such manner as may be provided by law. However, relator's application for a writ is based on the contention that this proceeding before the Joint Assembly is not a contest and is not contemplated by law. For that reason he contends the Joint Assembly has no authority to open the ballot boxes in violation of Art. VIII, Sec. 3 of the Constitution, which is as follows: "Sec. 3. Elections, how conducted and contested. All elections by the people shall be by ballot. Every ballot voted shall be numbered in the order received and its number recorded by the election officers on the list of voters opposite the name of the voter who presents it. All election officers shall be sworn or affirmed not to disclose how any voter shall have voted: Provided, That in cases of contested elections, grand jury investigations and in the trial of all civil or criminal cases in which the violation of any law relating to elections, including nominating elections, is under investigation or at issue, such officers may be required to testify and the ballots cast may be opened, examined, counted, compared with the list of voters and received as evidence."
This case is related to the case of State ex rel. Donnell v. Osborn, 347 Mo. 469, 147 S.W.2d 1065, and was argued before this court at the same time. In that case the same relator by mandamus sought to compel the Speaker to publish the returns and declare the relator's election as Governor. We granted the writ and the Speaker has complied. The relator was declared the elected Governor and assumed the duties of his office.
Thereafter, and while this case was under submission, a formal contest was instituted on March 4, 1941, in the General Assembly by Lawrence McDaniel, the defeated candidate for Governor, as contestant. A new and different committee was appointed to conduct the contest filed by McDaniel and to recount the votes. The recount under the McDaniel petition commenced and was proceeding when, on May 21, McDaniel sent a communication to the contest committee stating that from the results of the recount so far obtained he was convinced that the relator, his opponent, was elected Governor and asked that the Joint Assembly dismiss his petition for the contest. On the same date the Joint Assembly was convenced. It granted his request and dismissed the contest. It also discharged the contest committee and notified the County Clerks and Boards of Election Commissioners to stop the recount of the ballots and to take no further action in the matter. This action is shown by the journals of both the House and the Senate of which we take judicial notice. In addition, it is also a matter of common knowledge throughout the State. Because the people of Missouri attach supreme importance to the office of Governor, it can be safely said that any such decisive action concerning a contest of this office which has been given such wide notoriety is well known to all persons in every section of the State. Furthermore, we have held that we have the power to notice facts outside the record for the purpose of considering the moot character of a question before us. [State ex rel. Myers v. Shinnick (Mo.), 19 S.W.2d 676.]
Consequently, we find the controversy involved in this proceeding has become moot. Where there is no actual controversy existing at the time of the argument on appeal the appellate court as a general rule will not undertake to determine the case. [Joplin Waterworks Co. v. Jasper County, 327 Mo. 964, 38 S.W.2d 1068.] However, when a case becomes moot after it has been argued and submitted and is under the deliberation of the court pending its decision, then the court will exercise its right of unlimited discretion to complete its deliberation of the case and prepare an opinion and enter a final judgment on the merits if it sees fit to do so.
In this case, however, there is no useful purpose to be achieved in further considering it and entering a final decision on the merits. With the dismissal of the formal contest at the request of the contestant, any "investigation" by the Joint Assembly in connection with the same election for the same purpose as the abandoned contest has become a meaningless proceeding even if this court should hold it to be a proper proceeding, validly instituted. As to the latter we express no opinion. The contestant has admitted the election of his opponent. Where a situation so changes that no relief may be granted because it has already been obtained, the court will not go through the empty formality of determining whether or not the relief asked for might have been granted. [State ex rel. Myers v. Shinnick, supra.]
This case having become moot, we discharge our preliminary rule in prohibition. All concur.