State Ex Rel. McDonald v. Lollis , 326 Mo. 644 ( 1930 )

The holding of the principal opinion that the Act of 1929, providing for contests of primary elections, is unconstitutional is based on the proposition that the statute attempts to confer judicial power on the judges of circuit courts. With that I am unable to agree. The right to a nomination for public office is not a property right: it is not a natural or inherent right of any kind: it is purely political: a right which, generally speaking, lies beyond the scope of judicial power.

Not all powers which are judicial in their nature, as requiring judgment and discretion in their exercise, fall within the category of judicial power under the constitutional classification. [State v. Hathaway, 115 Mo. 36.] A statutory proceeding for contesting a primary election is, strictly speaking, neither an action at law nor a suit in equity. It is a summary proceeding of a political character. A tribunal to determine such a contested election need not be a judicial body, the powers exercised being quasi-political and administrative. [Griffith v. Bonawitz, 73 Neb. 622; City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 148 S.W. (Tex.) 292; Hester v. Bourland, 80 Ark. 145.] Jurisdiction of primary election contests may, therefore, be conferred upon officers, official boards, or even party committees, having no semblance of judicial power. [20 C.J. 120.]

If the form of the phraseology be disregarded, and the intrinsic nature of the acts required to be done by the circuit courts or judges in vacation be looked to, it will be found that the powers conferred upon them by the Act in question are precisely the same as those exercised by boards of election commissioners, boards of registry, election judges and canvassing boards, under statutory authority. The Act contemplates that the work to be done by a judge shall be merely supervisory and corrective of that done by the election officials. His conclusions are merely required to be certified to the Secretary of State and the county clerk: no process of any kind is provided for putting his "judgment" into effect.

For the reasons suggested, which for lack of time cannot be elaborated, I am of the opinion that the performance of the duties imposed upon judges by the Act does not call for the exercise of judicial power in the constitutional sense. If a statute can reasonably be so construed as to avoid unconstitutionality, that should be done. I dissent from the conclusions announced by my learned associate.