# State Ex Rel. Phillips v. Barton

> Supreme Court of Missouri · July 28, 1923 · 300 Mo. 76

URL: https://www.frixlaw.com/law-library/cases/3530162

## Case

- **Full name:** The STATE Ex Rel. S. A. PHILLIPS v. WILLIAM E. BARTON, J. FRANK HALBROOK, WILLIAM R. WELCH and JAMES H. McDONALD
- **Court:** Supreme Court of Missouri
- **Decided:** July 28, 1923
- **Citations:** 300 Mo. 76; 254 S.W. 85; 1923 Mo. LEXIS 239
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Walker
- **Judges:** Walker, Woodson', Woodson
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3530162

## Opinion text

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WALKER, J.
— This is an ^original proceeding to prohibit the Judge of the Circuit Court of Dent County from issuing an order in a contested election suit pending in that county to determine the rights of the respective parties to the office of County Collector of Dent County.
At the general election in November, 1922, the opposing candidates for the office of Collector were S. A. Phillips and J. Prank Halbroolc The former, as was shown on the face of the returns, received a majority of the votes cast and a certificate of election was issued to- him. The latter within the time limited by the statute, Section 4896, Revised Statutes 1919', and in conformity with its terms, instituted a suit in the circuit court to contest the former’s right to the office. Upon the filing of this suit the contestor made formal application in vacation to the Clerk of the Circuit Court, under Section 4911, Revised Statutes 1919, for the issuance by him of a writ directed to the Clerk of the County Court, commanding him to open, count and compare the lists of voters and examine the ballots in his office of the election in con
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test and to certify the result of such count, comparison and examination, so far as the same relates to the office in this contest, to the court from which the writ was issued. The county clerk proceeded to rpake an. examination under the provisions of Section 5403, Revised Statutes 1919, and not. under Sections 4911 to 4914, Revised Statutes 1919. The report of this examination was not filed by the county clerk in the circuit court until January 15,1923, which was after the expiration of his term of office as county clerk. The circuit court was mot in session at the time of the filing of this contest of election nor at any time thereafter until December 30, 1922, when it was in session for that day, at which time no steps were taken by the county clerk to make a report of the result of his examination.
Compliance with the writ not having' been made by the county clerk during his official term the contestor, on the 10th day of February, 1923, made an application to "Win. H. Welch, Clerk of the Circuit Court, for an order upon James H. McDonald, who, on January 1, 1923, had succeeded J. E. Giaines, as Clerk of the County Court, to open, count and compare with the list of the voters and to examine the ballots in his office cast at the election in contest in the yarious precincts in the county and to certify the result of such count, comparison and examination, so far as the same relates- to- the office of Collector of the Revenue of said county. It was stated in said application that an order had theretofore been made upon the former county clerk, but that he had refused to comply- with the. same. In conformity with the application of February 10th, Wm. H. Welch, Clerk of the Circuit Court, made an order upon James H. McDonald, the then County Clerk, tq open, count and compare with the list of voters and examine the ballots which were- cast af said election in contest in the several voting precincts in Dent County at the election held on the 7th day of November, 1922', and to make return to the writ under his hand and seal of all the- facts which -either of said parties may desire
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which. may appear from the ballots, and that he certify the result to the circuit court, as required by Sections 4913, 4914, Revised Statutes 1919.
Before a compliance by the county clerk with the order of February 10,1923, had been made, this application for a writ of prohibition was filed and a temporary order was made staying the proceeding's until the further order of this court.
The ground upon which it is sought to stay judicial action stated in the contestee’s own language is as follows :
‘ ‘ That tlie jurisdiction and ¡authority of the county clerk to recount the ballots had been exhausted when the county clerk complied with the first order made by the circuit clerk, and so long as the report of the county clerk in regard to the recount of the ballots was pending in the circuit court and had not been quashed or set aside by the circuit court, the contestor had no .right to dem,and the second count of the ballots ; that the circuit clerk was without authority to make an order for the second count of the ballots, and-that the circuit court or circuit judge in vacation had no authority to' make any such order, and the county clerk was without authority to comply with the same.”
It is this alleged excessive exercise of power against which restrictive relief is prayed. Commingled with this prayer are averments of unauthorized conduct on the part of certain administrative and ministerial county officers not within, the purview of this proceeding other than as they concern the judicial action complained of.
The return of the respondent, the Judge of the Circuit Court, to the writ issued herein is in effect as follows :
“William B. B,a.rton, Judge of the Circuit Court of Dent County, for Sis return to the preliminary writ of prohibition in this case, says that at the time the petition was filed herein he had never held a term
éf
court in Dent County, had never made any order, in the election
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contest in question, and the matter had never been presented to him, in' any w;ay; but since the filing of said petition at the April Term of the Circuit Court of Dent County, a motion was filed in his court by the contestor to quash the return made by J. E. Gaines, county clerk of said county, which was filed in said cause January 15, 1923, and that he sustained said motion and quashed said return for the reason that the order of A. M. Cage, circuit clerk, had not been complied with by the county clerk. That in quashing said return the following entry was made upon the records, viz: ‘The ¡return of the county clerk is quashed for the reason that the order of A. M. Gage, the circuit clerk, was not complied with by the county clerk. That order directed the county cle;rk to open the ballot boxes, recount the ballots and compare the ballots with the voting lists of the voters; this means that the county clerk should have made a return showing the number of the ballots and the name of the voter as shown by the voting list and the number ec. 4880, R. S. 19190 so provides, and there is nothing in the' Constitution to inhibit the admission of this character of testimony. On the contrary it is expressly provided (Sec. 3, Art. 8, Mio. Const.) “that in all contested elections the ballots qast may be counted, compared with the lists, of voters, and examined under such safeguards and regulations as may be prescribed by law.” The legal prescription referred to, has, so far as the matter at issue is concerned, been definitely drawn in the contest election statute. Not only from its terms but from the illuminating interpretation given to it in Gantt v. Brown, no difficulty should be encountered in complying with it.
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We do not find that the order of the circuit court, although ¡unnecessary, so far as concerns the quashal of the first writ, to be a violation of either the spirit or the purpose of the Constitution or the statute and the objections thereto as constituting a basis for prohibition must go for naught.
„ As stated in the beginning the sole matter at issue is the right of relator to the writ prayed for. The questions relevant to. a, determination of that matter have been discussed and resolved adversely to the prayer of the relator. With the so-called counter contest, therefore, which has been obtruded at great length into this record, we have no. concern. Election contests are purely statutory. As such the letter of the law is the limit of their power. Under our statute the only semblance of authority for a counter contest is found in Section 4898, Revised Statutes 1919, which gives the party having the certificate of election, who may desire in the contest instituted, to challenge the validity of any votes cast for the contestant, to notify the latter of his purpose and specify the names of the voters, and the objections he proposes to make against them. Other than as prescribed in this section the counter proceeding’1 is without authority.
In view of all of which the writ is denied.
All con cur, except
Woodson, O. J.,
(who dissents in separate opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3530162. Public record. Not legal advice.