# State Ex Rel. McClellan v. Kirkpatrick

> Supreme Court of Missouri · January 14, 1974 · 504 S.W.2d 83

URL: https://www.frixlaw.com/law-library/cases/9674606

## Case

- **Full name:** STATE of Missouri Ex Rel. James S. McCLELLAN Et Al., Relators, v. James C. KIRKPATRICK as Secretary of State of the State of Missouri, Respondent, Paul Berra and Others, Constituting the Democratic Central Committee for the City of St. Louis, Intervenors-Respondents
- **Court:** Supreme Court of Missouri
- **Decided:** January 14, 1974
- **Citations:** 504 S.W.2d 83
- **Precedential status:** Published
- **Opinion:** Dissent by Henley
- **Judges:** Bardgett, Donnelly, Morgan, Holman, Finch, Seiler, Henley
- **Cited by:** 15 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/9674606

## Opinion text

HENLEY, Judge
(dissenting).
As I understand the pleadings, and the issues made by those pleadings, relators seek to have determined, and the court has determined statutory and constitutional rights and responsibilities of persons not parties to the action: the qualified voters of the city of St. Louis and other cities and counties which use voting machines. Those rights and responsibilities are: (1) whether the statutes of this state now require that the voter at a primary election where voting machines are used announce to the election judges the ballot he intends to vote; and, if so, (2) whether those stat *90 utes are unconstitutional as (a) contravening his right to a “free and open” election (Art. I, § 25); and (b) his right to vote at such an election (Art. VIII, § 2). This action was not brought by the qualified voters or by anyone in their behalf. This is an action by relators in their representative capacity as members of the Board of Election Commissioners, not one by them in their individual capacity as qualified voters; nor is it a class action by them as members of that class. Nor are these necessary parties, the qualified voters, made parties defendant. Notwithstanding this, the court is asked to, and has, decided their rights and responsibilities. I cannot concur in action which has, from beginning to end, so blithely ignored them and their right to be heard.
Their absence points up what to me is a fatal weakness in a part of relators’ case. They attack, and the court has ruled upon, the constitutionality of the statute which the court says requires the voter at a primary election to announce to the election judges the type of ballot (party or nonpartisan) he proposes to vote. I do not disagree with the answer the court has given. I simply do not agree that the question answered is properly before us. This, because the only parties who raise this constitutional question, the relators, do not have standing to present this issue since, as Election Commissioners, they have no constitutional rights that have been or will be directly affected. State ex rel. Toliver v. Board of Education of City of St. Louis, 360 Mo. 671 , 230 S.W.2d 724, 730 [8] (1950); State ex rel. Brown v. McIntosh et al., 205 Mo. 616 , 103 S.W. 1071, 1081-1082 (1907).
For the above reasons, I respectfully dissent. And, it is for these and other reasons, I would not have issued the alternative writ in the first place and would now quash the writ as improvidently granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674606. Public record. Not legal advice.