State v. Williams

• Decision Date: 21 December 1889
• Citation: 12 S.W. 905,99 Mo. 291
• Parties: STATE ex rel. THOMAS v. WILLIAMS, Recorder of Voters.
• Court: Missouri Supreme Court

12 S.W. 905

99 Mo. 291

STATE ex rel. THOMAS v. WILLIAMS, Recorder of Voters.

Supreme Court of Missouri.

December 21, 1889.

MUNICIPAL CORPORATIONS — OFFICERS — QUALIFICATION — MANDAMUS — INJUNCTION — APPEAL.

1. The charter of the city of St. Louis (article 4. § 10) provides that all elected and appointed officers must have been citizens of the city for at least two years previous to their election or appointment, and shall not, at the time of their election, be in arrears to the city for taxes, or indebted to the city in any way. The relator had received a majority of the votes cast at an election for city marshal held April 2, 1889. It appeared, however, that he had left the city in October, 1885, abandoning his family, leaving his business without making any inquiry or provision for it for nearly two years, returning to the city in September, 1887. Held, that this was such an abandonment of his citizenship as would disqualify him for the office of marshal.

2. Where it appears that relator had been carrying on a saloon in the city, but had not paid his saloon license, though the same had often been demanded of him, this indebtedness to the city is a disqualification for office, and relator is estopped from pleading, in order to avoid the disqualification, that no license was ever issued to him.

3. Where it further appears that at the date of the election relator was in arrears for taxes due the city, and that the books of delinquent taxes were in the collector's office for the inspection of the public; that relator had personal property subject to taxation, but on his own admission he had paid no taxes for five years prior to the election, — he cannot avoid disqualification for office on the ground that he did not know there were any taxes assessed against him.

4. A petitioner in mandamus must show himself the possessor of a clear and legal right to the remedy he seeks, in order to maintain his petition.

Mandamus.

The relator submitted depositions under order of this court, to sustain his issues: (1) That he is and has been a citizen of the city of St. Louis for more than two years previous to his election; (2) that he was not indebted to the city at the date of his election; (3) that he was not in arrears to the city for taxes at the date of his election.

The testimony is substantially as follows:

Emil Thomas testifies that he is 49 years old. Resides at 3018 Lucas avenue, city of St. Louis, and has lived in the city since 1866, — continuously since 1881; and testified in detail to his possession of all other qualifications for marshal. That he did not have any knowledge that any taxes were assessed against him in April, 1889. The city was indebted to him at that date on his settlement with the city as marshal, somewhere about 1885. The amount was $42.50, and has been paid to him since the election. That he first became aware that there were taxes due by him when the application for the injunction was made by Neiser, and he immediately paid the same. On cross-examination, he stated that he went to Salt Lake, Utah, in October, 1885, and remained in Utah until September, 1887. That he had a suit there about a mine, which is yet pending. Was continued from term to term, and that is what kept him there. Did not engage in business there. Was in the saloon business in summer of 1885. Did not receive any license for the saloon. Did not pay for the license. John Krauss, president of the brewing company, put up saloon for him. When the money for license was demanded of him by the collector he told the collector he (relator) would have to see John Krauss about it. Krauss had promised "to see him through" in the saloon enterprise generally. The collector allowed him to go on with the saloon, and trusted him to pay the license. The only property that he owned in St. Louis after 1885 was his household furniture. When he went to Salt Lake he intended to return in twenty days. Never changed his mind about coming back, but was detained there fifteen or sixteen months. Went there under a promise of getting some $3,000. Failing to get it, attached the mine. Was in correspondence with his family during all the time he was there.

Frederick Gerber, chief deputy collector: All bills for unpaid taxes were yet in the hands of the comptroller in March and early part of April. Mr. Schweikhardt paid all delinquent taxes of Mr. Thomas on 3d or 4th of April last. Every tax-bill against Emil Thomas was paid. "I told the cashier to put the money in the safe, and keep it there, until the new collector came in." The money was subsequently turned over to the new collector, Mr. Ziegenhein. We could not give receipted bills at the time the money was paid, because they were not in the collector's office.

J. G. Travis stated that he was a deputy sheriff. That he went to the collector's office a day or two prior to the election, with the full intention of paying any taxes that might be due by Emil Thomas, and was told there by a deputy collector, behind the counter in the office, that there were no bills against him of any name or nature. It was Saturday or Monday preceding the 2d of April, 1889. Had been a deputy collector himself, and tried to find the books in the office which would show if there were any bills against him, but could not find them. Afterwards saw the collector, Mr. Sexton, and made the inquiry of him, and told him he would pay all bills against Mr. Thomas, and failed to get the bills. The bills had then been returned to the collector from the comptroller's office, and I offered to leave the money to pay all delinquent personal property taxes due by Thomas, if the amount could be ascertained.

James Van Schoonhoven testified that he accompanied Mr. Travis to the collector's office on the last Saturday of March, 1889, and detailed the facts of the offer of Travis to pay all taxes due by Emil Thomas, as stated by Travis.

The relator then put in evidence the receipt made an exhibit in the testimony of Frederick Gerber, certifying that all taxes assessed against Emil Thomas have been paid up to the date thereof, to-wit, April 4, 1889.

The defendant, Neiser, to sustain the issues on his part, showed, by Andy John Knapp, that he was cashier of Collector Sexton up to April 22, 1889; that persons came into the office, he thinks it was two or three days after the election, and Gerber gave him money tendered by them to put in the safe to be applied to the payment of Emil Thomas' taxes when the bills should be got back from the comptroller's office. He kept it in the safe, and turned it over to Mr. Ziegenhein, the new collector, and got his receipt for it. Thinks the amount over $100. The delinquent tax-bills were at that time in the hands of the comptroller, and had been there since about March 2d.

Michael J. Casey was also called by the defendant. He was a sanitary officer, — a janitor at the court-house, — and was delayed one evening in cleaning out the tax collector's office by Nick Carr and some one else talking to Fred Gerber about Emil Thomas' taxes. They only wanted "to see about Thomas' taxes." Thinks it must have been about 5th April.

George Ransom Wolf, for defendant, testified that he had been a deputy collector of taxes. Two gentlemen called to see Mr. Gerber, the chief deputy, and talked with him. The subject of their talk witness did not know, and he did not know the men. They talked about seeing somebody; he does not know who. He was a deputy in the office at and before and after the election, but knew nothing about the matter.

Defendant offered in evidence some transcripts of judgments in justices' courts against Emil Thomas, and one that was not against him, to-wit, the one in favor of G. H. Ashley.

Defendant called H. Clay Sexton, late collector of taxes, who testified that there were some delinquent personal property taxes against relator. Does not know for what years. After the election Travis wanted to know the amount of the taxes. Said he wanted to pay them. Thomas started a saloon, but he did not pay the license. Promised to do so, but did not. Waited on him. Another party afterwards paid the license. Think Thomas owed for about three months. Thomas told him he was a little hard up, but having known him for so many years, and thinking him a good fellow, thought he would pay it. On cross-examination stated that he thought the older bills were down in the basement, and the later ones had not been returned to him when Travis wanted to know the amounts, etc. Do not know, and would not know, in the course of business, whether any one had paid his taxes or not. Does not know when Thomas' taxes were paid. Did not receive taxes during the time the comptroller held the bills.

Peter P. Daily was deputy collector, license department. Thomas did not pay the saloon license. Thinks it was about $138. Thinks it was at his request that Mr. Sexton allowed it to run. Thomas wanted time, and Sexton gave it to him.

Denny J. O'Callaghan, was a deputy collector in April, 1889, in the collector's office at St. Louis. Saw the tax-bills of Mr. Thomas after April 3d. There were delinquent taxes for more years than was stated in the petition of Neiser for injunction. There was a bill for the year 1888. Thinks they were all for personal property taxes. Don't know amount of any bill or aggregate amount.

John C. Hartnett had known Thomas about nineteen years. He was jailer. He was afterwards sheriff. Served one term, and was elected for a second term, but thinks the scheme and charter cut him out. Then he was afterwards city marshal for four years.

A. G. Peterson sold Thomas glasses, etc., for the saloon. Thinks it was four or five years ago. Sued for his bill, and got judgment.

William P. Macklin boarded with Mrs. Thomas in fall of 1886 for some three months. There were eight or ten boarders. Mr. Thomas was not there. Mrs. Thomas, he thinks, got money from some outside parties.

Thomas H. Burtt, a saloon-keeper in ...